Overall

Question 1

VII: Torts: 7 Areas of Study

Answer 1

1. Intentional Torts
2. Harm to Economic and Dignatary Interests
3. Negligence
4. Liability Without Fault (Strict Liability)
5. Products Liability
6. Nuisance
7. General Considerations for All Tort Cases

Question 2

II. Contracts and Sales: 9 Areas of Study

Answer 2

1. What is a Contract?
2. Mutual Assent–Offer and Acceptance
3. Consideration
4. Requirement That No Defenses Exist
5. Determining the Terms of the Contract
6. Performance and Excuse of Nonperformance
7. Breach
8. Remedies
9. Rights and Duties of Third Parties to the Contract

Question 3

VII Torts: 2. Harm to Economic and Dignitary Interests: 5 General Causes of Action

Answer 3

1. Defamation
2. Invasion of Right to Privacy
3. Misrepresentation
4. Interference with Business Relations
5. Wrongful Institution of Legal Proceedings

Question 4

VII: Torts: 3. Negligence: Prima Facie Case

Answer 4

The existence of a DUTY on the part of the defendant TO CONFORM TO A SPECIFIC STANDARD OF CONDUCT for the protection of the plaintiff against an unreasonable risk of injury;

BREACH of that duty by the defendant;

That the breach of duty by the defendant was the ACTUAL AND PROXIMATE CAUSE of the plaintiff’s injury; and

DAMAGE to the plaintiff’s person or property.

Question 5

VII Torts: 4. Liability Without Fault (Strict Liability): Prima Facie Case and 2 common cases.

Answer 5

The nature of the defendant’s activity imposes an ABSOLUTE DUTY to MAKE SAFE;
The dangerous aspect of the activity is the ACTUAL and PROXIMATE CAUSE of the plaintiff’s injury; and
The plaintiff suffered DAMAGE to person or property.

2 common cases: liability for animals and abnormally dangerous activities

Question 6

I. Conlaw: (1 of 5) Powers of the Federal Government (3)

Answer 6

1. Judicial Power
2. Legislative Power
3. Executive Power

Question 7

II. Contracts:What is a Contract?: General Definition

Answer 7

A contract is a promise or set of promises, for breach of which the law gives a remedy, or the performance of which, the law in some way recognizes as a duty.

Question 8

II. Contracts: Consideration:
Definition
Effect of consideration

Answer 8

Valuable Consideration: a bargained for change in legal position between the parties.

While substitute doctrines may permit enforcement of an agreement, only the presence of VALUABLE CONSIDERATION ON BOTH SIDES of the bargain will make an executory bilateral contract fully enforceable FROM THE MOMENT OF FORMATION.

Question 9

II. Contracts: Requirement that No Defense Exist

Answer 9

Even if an agreement is supported by valuable consideration or a recognized substitute, contract rights may still be unenforceable because there is:

1. Defense to Formation
2. Defect in Capacity (making the obligation voidable by one of the parties)
3. Defense to Enforcement of certain terms

Question 10

II. Contracts: Performance and Excuse of Nonperformance: Performance at Common law

Answer 10

A party’s basic duty at common law was to substantially perform all that is called for in the contract.

Question 11

Contracts: Breach: When Does a Breach Occur

Answer 11

If it is found that (i) the promisor is under an absolute duty to perform, and (ii) this absolute duty of performance has not been discharged, then this failure to perform in accordance with contractual terms will amount to a breach of the contract. The nonbreaching party who sues for breach of contract must show that she is WILLING AND ABLE to perform but for the breaching party’s failure to perform.

Question 12

Contracts: Remedies (6)

Answer 12

1. Nonmonetary Remedies
2. Monetary Remedies
3. Restitution
4. Rescission
5. Reformation
6. Statute of Limitations Under UCC

Question 13

Crimlaw: Elements of Crime

Answer 13

Culpability under Anglo American criminal law is founded upon certain basic premises that are more or less strictly observed by legislatures and courts when formulating the substantive law of crimes. Consequently, the prosecution is generally required to prove the following elements of a criminal offense:

1. ACTUS REUS (guilty act): a physical act (or unlawful omission) by the defendant;
2. MENS REA (guilty mind): the state of mind or intent of the defendant at the time of his act;
3. CONCURRENCE: the physical act and the mental state existed at the same time; and
4. HARMFUL RESULT AND CAUSATION: a harmful result caused (both factually and proximately) by the defendant’s act.

Virtually all crimes require a physical act and may require some sort of intent. Many crimes also require proof of certain ATTENDANT CIRCUMSTANCES without which the same act and intent would not be criminal. (receipt of stolen property requires that property be stolen; homicide requires the victim die)

Question 14

Crimlaw: Accomplice Liability: Parties to a Crime
Under the Common Law
Under Modern Statutes

Answer 14

COMMON LAW
Four Types of Parties to a Felony
1. Principals in the first degree: persons who actually engage in the act or omission that constitutes the criminal offense;
2. Principals in the second degree: persons who aid, command, or encourage the principal and are present at the crime;
3. Accessories before the fact: persons who aid, abet or encourage the principal but are NOT present at the crime);
4. Accessories after the fact: persons who assist the principal after the crime).

At common law the distinctions between the parties had a great deal of procedural significance. Most modern jurisdictions have abandoned these procedural distinctions.

MODERN STATUTES
Most jurisdictions have abolished the distinctions between principals in the first degree, principals in the second degree, and accessories before the fact (accessories after the fact are still treated the same). Under the modern approach, all parties to the crime can be found guilty of the criminal offense.

Principal: one who with the requisite mental state, ACTUALLY ENGAGES IN THE ACT OR OMISSION that causes the criminal result. Also, anyone who acts through an innocent, irresponsible, or unwilling agent is classified as a principal.

Accomplice: one who, with the intent that the crime be committed, aids, counsels, or encourages the principal before or during the commission of the crime.

Accessory After the Fact: one who receives, relieves, comforts, or assists another, knowing that he has committed a felony, in order to HELP THE FELON ESCAPE ARREST, TRIAL, OR CONVICTION. The crime committed by the principal must be a FELONY and it must be COMPLETED at the time the aid is rendered. Usually called harboring a fugitive, aiding escape, or obstructing justice. (Penalty: bears no relation to the principal’s punishment.)

Question 15

Crimlaw: Inchoate Offenses: list

Answer 15

1. Solicitation
2. Conspiracy
3. Attempt

Question 16

Crimlaw: Responsibility and Criminal Capacity: defenses

Answer 16

1. Insanity
2. Intoxication
3. Infancy

Question 17

Crimlaw: Principles of Exculpation

Answer 17

1. Justification
2. The Excuse of Duress (Also Called Compulsion or Coercion)
3. Other Defenses

Question 18

Crimlaw: Offenses Against the Person (5)

Answer 18

1. Assault and Battery
2. Mayhem
3. Homicide
4. False Imprisonment
5. Kidnapping

Question 19

Crimlaw: Sex Offenses (7)

Answer 19

1. Rape
2. Statutory Rape
3. Crimes Against Nature
4. Adultery and Fornication
5. Incest
6. Seduction or Carnal Knowledge
7. Bigamy

Question 20

Crimlaw: Property Offenses (9)

Answer 20

1. Larceny
2. Embezzlement
3. False Pretenses
4. Robbery
5. Extortion
6. Receipt of Stolen Property
7. Statutory Changes in Property Acquisition Offenses
8. Forgery
9. Malicious Mischief

Question 21

Crimlaw: Offenses Against the Habitation (2)

Answer 21

1. Burglary

2. Arson

Question 22

Crimlaw: Offenses Involving Judicial Procedure (5)

Answer 22

1. Perjury
2. Subordination of Perjury
3. Bribery
4. Compounding a Crime
5. Misprision of a Felony

Question 23

Crimpro: Pretrial Identification: purpose of rules concerning pretrial identification

Answer 23

To ensure that when the witness identifies the person at trial, she is identifying the person who committed the crime and not merely the person whom she has previously seen at the police station.

Question 24

Crimpro: Pretrial Procedures: Preliminary Hearing to Determine Probable Cause to Prosecute

Answer 24

A preliminary hearing may be held to determine whether probable cause to prosecute exists. The accused has a RIGHT TO COUNSEL at this hearing and both the prosecutor and the accused may present evidence for the record. The accused may waive the hearing. Either side may use this hearing for preserve testimony of a witness unavailable at trial provided there was some opportunity to cross examine the witness at the preliminary hearing.

Question 25

Crimpro: Collateral Attack Upon Convictions

Answer 25

Habeas Corpus Proceeding is a collateral attack upon a conviction.

No right to appointed counsel.

Burden of proof is on the petitioner by a preponderance of evidence.

State may appeal the granting of writ of habeas corpus and double jeopardy bars neither the appeal nor retrial after the granting of the writ.

Requirement of custody by the state, but out on bail, probation or parole is sufficient.

Question 26

Crimpro: Privilege Against Compelled Self-Incrimination: general rules

Answer 26

1. Applicable to the States
2. Who May Assert the Privilege: only natural persons, not corporations or partnerships; privilege is personal and may not be asserted by another person
3. Right to Advice Concerning Privilege: a lawyer may not be held in contempt of court for her good faith advice to her client to invoke the privilege and refuse to produce materials demanded by a court order. A witness has a right to consult with a lawyer about privilege.

Question 27

Crimpro: Juvenile Court Proceedings

Answer 27

1. In General
   Some–but not all–the rights developed for defendants in criminal prosecution have also been held applicable to children who are the subjects of proceedings to have them declared “delinquents” and possibly institutionalized.
2. Rights That Must Be Afforded
   - -written notice of the charges with sufficient time to prepare a defense
   - -assistance of counsel
   - -opportunity to confront and cross-examine witnesses
   - -right not to testify
   - -right to have guilt established by proof beyond a reasonable doubt
3. Rights Not Applicable
   - -jury trial
   - -pretrial detention allowable as long as the detention is for a strictly limited time before trial may be held
4. Double Jeopardy and “Transfer” of Juvenile to Adult Court; if the juvenile court has begun to hear evidence on the alleged delinquent act, jeopardy has attached and the prohibition against double jeopardy prevents the juvenile from being tried as an adult on the same behavior

Question 28

Crimpro: Forfeiture Actions

Answer 28

State and federal statutes often provide for the forfeiture of property such as automobiles used in the commission of a crime. Actions are brought directly against the property and are generally regarded as quasi-criminal in nature. Certain constitutional rights may exist for those persons whose interest in the property would be lost by forfeiture.

2. Right to Pre-Seizure Notice and Hearing: the owner of PERSONAL PROPERTY is not constitutionally entitled to notice and hearing before the property is seized for purposes of a forfeiture proceedings. A hearing is required before final forfeiture of the property. Where REAL PROPERTY is seized, notice and an opportunity to be heard is required before the seizure unless the government can prove that exigent circumstances justify immediate seizure.
3. Forfeitures May Be Subject to Eighth Amendment
   8th prohibits excessive fines imposed for PUNISHMENT, does not apply to civil fines

Penal forfeiture: only if it is provided for in a criminal statute. If it is penal and the clause applies, a forfeiture will be found to be excessive only if it is grossly disproportionate to the gravity of the offense

Nonpenal Forfeitures
–civil in rem forfeitures treat the property forfeited as a wrongdoer under a legal fiction; the action is against the property and not an individual; not subject to excessive fines clause

4. Protection for “Innocent Owner” Not Required: when the innocent owner voluntarily entrusted the property to the wrongdoer.

Question 29

Evidence: Relevance

Answer 29

Relevance, in the sense of probativeness, has to do with the tendency of evidence to PROVE OR DISPROVE A MATERIAL ISSUE, to render it more probably true, or untrue, than it would have been without the particular evidence.

Discretionary Exclusion of Relevant Evidence (Pragmatic Relevance): trial judge has broad discretion to exclude evidence if its probative value is SUBSTANTIALLY outweighed by the danger of UNFAIR PREJUDICE, CONFUSION OF THE ISSUES, or MISLEADING THE JURY, or by considerations of UNDUE DELAY, waste of time, or needless presentation of cumulative evidence.

Unfair surprise is listed in some state rules, but omitted in federal rules on the theory that surprise can be eliminated by discovery and pretrial conference or mitigated by granting a continuance.

Question 30

Property: Rights in The Land of Another–Easements, Profits, Covenants, and Servitudes: Relationship of Covenants to Zoning

Answer 30

Both restrictive covenants and zoning ordinances may affect legally permissible uses of land. Both must be complied with, and neither provides any excuse for violating the other.

Question 31

Torts: Intentional Torts: Prima Facie Case (3)

Answer 31

1. Act by Defendant
2. Intent
3. Causation

Question 32

Torts: Intentional Torts: Prima Facie Case–Intentional Torts to the Person (4)

Answer 32

1. Battery
2. Assault
3. False Imprisonment
4. Intentional Infliction of Emotional Distress

Question 33

Torts: Intentional Torts: Prima Facie Case–Intentional Torts to Property (3)

Answer 33

1. Trespass to Land
2. Trespass to Chattels
3. Conversion

Question 34

Torts: Intentional Torts: Defenses to the Intentional Torts (9)

Answer 34

1. Consent
2. Self-Defense
3. Defense of Others
4. Defense of Property
5. Reentry onto Land
6. Recapture of Chattels
7. Privilege of Arrest
8. Necessity
9. Discipline

Question 35

Torts: Harms to Economic and Dignitary Interests: Defamation (9)***

Answer 35

1. Prima Facie Case
2. Defamatory Language
3. “Of or Concerning” the Plaintiff
4. Publication
5. Damage to Plaintiff’s Reputation
6. Falsity
7. Fault on Defendant’s Part
8. Defense to Defamation
9. Mitigating Factors

Question 36

Torts: Harms to Economic and Dignitary Interests: Invasion of Right to Privacy includes

Answer 36

1. Appropriation of Plaintiff’s Name or Picture
2. Intrusion on Plaintiff’s Affairs or Seclusion
3. Publication of Facts Placing Plaintiff in False Light
4. Public Disclosure of Private Facts About Plaintiff

Question 37

Torts: Harms to Economic and Dignitary Interests: Misrepresentation (2)

Answer 37

1. Intentional Misrepresentation

2. Negligent Misrepresentation

Question 38

Torts: Harms to Economic and Dignitary Interests: Interference with Business Relations

Answer 38

Existence of a VALID CONTRACTUAL RELATIONSHIP between plaintiff and a third party or a VALID BUSINESS EXPECTANCY of plaintiff;
DEFENDANT’S KNOWLEDGE of the relationship or expectancy;
INTENTIONAL INTERFERENCE by defendant that induces a breach or termination of the relationship or expectancy; and
DAMAGE to plaintiff.

Not Limited to Existing Contracts–includes probable future contracts for which plaintiff has a reasonable expectation of financial benefit.

Damages: must prove actual damages, but may also recover for emotional distress and may get punitives in certain cases.

Interferor’s conduct may be PRIVILEGED

Question 39

Torts: Harms to Economic and Dignitary Interests: Wrongful Institution of Legal Proceedings: Wrongful Civil Proceedings and Abuse of Process

Answer 39

Wrongful Civil Proceedings: most jurisdictions have extended malicious prosecution action to encompass wrongfully instituted civil proceedings. Has the same elements as malicious prosecution, but probable cause element is hard to prove because reasonable people might bring a claim in a doubtful case where the only consequences to the people being sued are civil.

Abuse of Process:
The wrongful use of the process for an ulterior purpose, and
Some definite act or threat against plaintiff accomplish the ulterior purpose.

Question 40

Torts: Negligence: Duty of Care: General duty

Answer 40

A general duty of care is imposed on all human activity.

When a person engages in an activity, he is under a legal duty to act as an ORDINARY, PRUDENT, REASONABLE PERSON. It is presumed that such a person would take precautions against creating unreasonable risks of injury to other persons.

No duty is imposed to take precautions against events that cannot reasonably be foreseen.

Other factors, such as status of the parties or statutes may limit or extend this general duty.

Question 41

Torts: Negligence: Breach of Duty

General Definition
Question of law or fact?
Proof of breach: generally; 3 other methods

Answer 41

Where the defendant’s conduct falls short of that level required by the applicable standard of care owed to the plaintiff, she has breached her duty. Whether the duty of care has been breached is a question for the trier of fact.

PROOF OF BREACH–twofold

1. It must be shown what in fact happened.
2. It must be shown from these facts that the defendant acted unreasonably.

EVIDENCE OFFERED TO ESTABLISH THE STANDARD BY WHICH DEFENDANT’S CONDUCT TO BE MEASURED:

1. Custom or Usage–may be introduced but NOT CONCLUSIVE for controlling the question of whether certain conduct amounted to negligence.
2. Violation of Statute
3. Res Ipsa Loquitor (see other card)

Question 42

Torts: Negligence: Causation: Actual Cause (Causation in Fact)
Test
concurrent causes
joint causes
alternative causes

Answer 42

Before the defendant’s conduct can be considered a proximate cause of plaintiff’s injury, it must first be a CAUSE IN FACT of the injury. Several tests exist.

BUT FOR TEST–an act or omission to act is the cause in fact of an injury when the injury would not have occurred BUT FOR the act. (concurrent causes–but for test applies where several acts combine to cause the injury, but none of the acts standing alone would have been sufficient. Each actor liable because but for any of the acts, the injury would not have occurred)

JOINT CAUSES–SUBSTANTIAL FACTOR TEST where several causes concur to bring about an injury–and any one would have been sufficient to cause the injury–it is sufficient if defendant’s conduct was a “substantial factor” in causing the injury.

ALTERNATIVE CAUSES APPROACH–burden of proof shifts to defendants where uncertainty exists as to which one caused plaintiff’s injury. Plaintiff only has to prove that one of them caused the harm even though uncertain as to which one. (Enterprise liability–pharmaceuticals)

Question 43

Torts: Negligence: Damages: generally

Answer 43

Damage is an essential element of plaintiff’s prima facie case for negligence. This means ACTUAL harm or injury. Unlike the situations for some of the intentional torts, damage will not be presumed. Thus, nominal damages are not available in an action in negligence; some proof of harm must be offered.

Question 44

Torts: Negligence: Defenses to Negligence (3)

Answer 44

1. Contributory Negligence
2. Assumption of Risk
3. Comparative Negligence

Question 45

Torts: Liability Without Fault (Strict Liability): Liability for Animals (2)

Answer 45

1. Trespassing Animals

2. Personal Injuries

Question 46

Torts: Liability Without Fault (Strict Liability): Abnormally Dangerous Activities

Test
Products Liability

Answer 46

Whether an activity is abnormally dangerous is a question of law that the court can decide on a motion for directed verdict.

2. Test
   The courts generally impose two requirements for finding an activity to be abnormally dangerous:

1) The activity must create a foreseeable risk of SERIOUS HARM EVEN WHEN REASONABLE CARE IS EXERCISED by all actors; and
2) The activity is NOT A MATTER OF COMMON USAGE in the community.

3. Products Liability
   There may be strict liability imposed for damage caused by products, depending on the theory used by a court in resolving such problems.

Question 47

Torts: Products Liability: Basic Principles: Theories of liability

Answer 47

1. Intent
2. Negligence
3. Strict Liability
4. Implied Warranties of Merchantability and Fitness for a Particular Purpose;
5. Representation Theories (express warranty and misrepresentation)

Question 48

Torts: Products Liability: Liability Based on Intent
General rule
Tort generally involved
Privity
Damages
Defenses

Answer 48

A defendant will be liable to anyone injured by an unsafe product if the defendant INTENDED the consequences or knew that they were substantially certain to occur. NOT VERY COMMON

1. Tort involved is usually battery.
2. Privity Not Required
3. Damages: punitives available in addition to compensatory
4. Defenses: same as other intentional tort cases; negligence defenses, such as contributory negligence and assumption of risk are not applicable.

Question 49

Torts: Products Liability: Liability Based on Negligence: Prima Facie Case

Answer 49

The existence of a LEGAL DUTY owed by the defendant to that particular plaintiff;
BREACH of that duty;
ACTUAL and PROXIMATE CAUSE; and
DAMAGES

Question 50

Torts: Products Liability: Liability Based on Strict Liability: Background and prima facie case

Answer 50

For those products liability cases where negligence on the part of the supplier would be difficult to prove, plaintiffs formerly attempted to bring their claims under traditional breach of warranty law as an alternative to using a negligence theory. Gradually, courts began to discard the privity requirement in warranty cases so that an increasing number of victims could recover without proof of negligence. This development has led to strict liability in tort of products liability cases.

PRIMA FACIE CASE
Absolute duty owed by a COMMERCIAL SUPPLIER;
Production or sale of a DEFECTIVE PRODUCT;
ACTUAL and PROXIMATE CAUSE;
DAMAGES.

Question 51

Torts: Products Liability: Implied Warranties of Merchantability and Fitness (fault; scope; definitions of the two warranties; disclaimers; causation; damages; defenses)

Answer 51

1. Proof of Fault Unnecessary: if a product fails to live up to the standards imposed by the warranty, the warranty is breached and the defendant is liable.
2. Scope of Coverage: UCC sale of goods and lease of goods.
3. Implied Warranty of Merchantability: Merchantable means the goods are of a quality equal to that GENERALLY ACCEPTABLE among those who deal in similar goods and are GENERALLY FIT FOR THE ORDINARY PURPOSES for which such goods are used.
4. Implied Warranty of Fitness for a Particular Purpose: Arises when the seller knows or has reason to know: (i) the particular purpose for which the goods are required; AND (ii) that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods.
5. Effect of Disclaimer: Must be specific and are narrowly construed. Contractual limitations on PERSONAL INJURY damages resulting from a breach of warranty for consumer goods are prima facie UNCONSCIONABLE.
6. Causation: as in ordinary negligence
7. Damages: In addition to personal injury and property damage, purely ECONOMIC LOSSES are recoverable in implied warranty actions.
8. Defenses:
   Assumption of risk: when plaintiff assumes the risk by using a product while knowing of the breach of warranty, any resulting injuries are not proximately caused by the breach.

Contributory negligence: courts in contributory negligence jurisdictions have adopted an approach similar to that used in strict liability in tort–that unreasonable failure to discover the defect does not bar recovery, but unreasonable conduct AFTER discovery does bar recovery.

Comparative Negligence: courts in comparative negligence jurisdictions use comparative fault notions in warranty cases to reduce the damage in the same way as in strict liability cases.

Notice of breach: UCC requires the buyer to give the seller notice WITHIN A REASONABLE TIME after the buyer discovers or should have discovered the breach. Most courts have held that the requirement applies even in personal injury cases and where there is no privity between the parties.

Question 52

Torts: Products Liability: Representation Theories (2)

Answer 52

1. Express Warranty: arises where a seller makes an affirmation of fact or promise to the buyer relating to the goods that becomes part of the “basis of the bargain.”
2. Misrepresentation of Fact: a representation by the seller about a product induces reliance by the buyer.

Question 53

Torts: Nuisance: Private Nuisance

Answer 53

Private nuisance is a SUBSTANTIAL, UNREASONABLE INTERFERENCE with another private individual’s USE OR ENJOYMENT of property he actually possesses or to which he has a right of immediate possession.

Substantial Interference: must be offensive, inconvenient, or annoying to an average person in the community. (No for hypersensitivity or specialized use of property by plaintiff.)

Unreasonable Interference: severity of the inflicted injury must outweigh the utility of defendant’s conduct.

Trespass to Land Distinguished

trespass: inteference with EXCLUSIVE POSSESSION
nuisance: interference with USE OR ENJOYMENT

Question 54

Torts: Nuisance: Remedies (3)

Answer 54

Damages: usual remedy for a private nuisance or for a public nuisance where plaintiff has suffered some unique damage

Injunctive Relief: where the legal remedy is unavailable or inadequate (nuisance is a continuing wrong, nuisance is kind that will cause irreparable harm). Court balance hardships (unless defendant’s conduct was willful).

3. Abatement by Self-Help
   ABATEMENT OF PRIVATE NUISANCE
   One has the privilege to enter upon defendant’s land and personally abate the nuisance after notice to defendant and defendant’s refusal to act. The force used may be only that necessary to accomplish the abatement, and the plaintiff is liable for additional harm done.

ABATEMENT OF PUBLIC NUISANCE
If the person has unique damage, can employ abatement. Otherwise only abated or enjoined by public authority.

Question 55

Torts: Nuisance: Defenses (4)

Answer 55

1. Legislative Authority: conduct consistent with a zoning ordinance or other legislative license is relevant but NOT CONCLUSIVE evidence that the use is not a nuisance.
2. Conduct of Others: no one actor is liable for all the damage caused by the concurrence of his acts and others.
3. Contributory Negligence
   Not usually a defense to nuisance. However, when a nuisance is based on a negligence theory, one may not avert the consequences of his own contributory negligence by affixing to the negligence of the wrongdoer the label of a nuisance. In such a case, the plaintiff pleading nuisance must show his freedom from contributory negligence.
4. “Coming to the Nuisance”: In the absence of a prescriptive right, defendant may not condemn surrounding premises to endure the nuisance; i.e., the PURCHASER IS ENTITLED TO REASONABLE USE OR ENJOYMENT OF HIS LAND to the same extent as any other owner as long as he buys in good faith and not for the sole purpose of a harassing lawsuit.

Question 56

Torts: General Considerations for All Tort Cases: Vicarious Liability (7)

Answer 56

1. Doctrine of Respondeat Superior
2. Independent Contractor Situations
3. Partners and Joint Venturers
4. Automobile Owner for Driver
5. Bailor for Bailee
6. Parent for Child
7. Tavernkeepers

Question 57

Torts: General Considerations for All Tort Cases: Tortious Interference With Family Relationships: Nature of Action for Family Relationships

Answer 57

DERIVATIVE
Recovery in the derivative action depends on the potential success of the injured family member’s own action. Thus, any defense that could be raised against the injured family member, e.g., her own contributory negligence, can also be raised in the derivative action for interference with family relationships.

Question 58

Torts: General Considerations for All Tort Cases: Tort Immunities: Charitable Immunity

Answer 58

Majority of jurisdictions have abrogated the common law rule of charitable immunity either by statute or decision. Where it still exists, it is riddled with exceptions.

Question 59

Conlaw: Powers of the Federal Government: Judicial Power: Article III

Answer 59

The Constitution authorizes a federal court system in Article III, which provides that federal courts shall have judicial power over all CASES AND CONTROVERSIES:

(i) arising under the Constitution, laws, or treaties of the US;
(ii) of admiralty and maritime jurisdiction
(iii) in which the US is a party
(iv) between two or more states
(v) between a state and a citizen of another state
(vi) between citizens of different states
(vii) between citizens of the same state claiming lands under grants of different states; and
(viii) between a state or citizens thereof and foreign states, citizens, or subjects

Question 60

Conlaw: Federal System: Intersovereign Litigation

Answer 60

1. Suits by the United States Against a State: US may sue a state without its consent.
2. Suits by State Against United States–United States Must Consent
3. Federal Officer as Defendant

Limitation: Suits against a federal officer are deemed to be brought against the US itself if the judgment sought would be satisfied out of the public treasury or would interfere with public administration and, therefore, are not permitted.

SPECIFIC RELIEF against an officer as an individual will be granted if the officer acted ultra vires:

1. beyond his statutory powers; or
2. the valid power was exercised in an unconstitutional manner
3. Suits by One State Against Another: One state may sue another without the latter’s consent. The Supreme Court has EXCLUSIVE ORIGINAL JURISDICTION.

Question 61

Conlaw: State Regulation or Taxation of Commerce: Regulation of Foreign Commerce

Answer 61

Lies Exclusively With Congress

Minor Exceptions Where State Regulation Permitted: regulate local aspects of port pilotage and navigation of ships in foreign commerce (aspects such as safety of handling)

Question 62

Conlaw: State Regulation or Taxation of Commerce: Regulation of Interstate Commerce: Bar Exam Approach

Answer 62

Whenever a bar exam question involves state regulation that affects the free flow of interstate commerce, you should proceed as follows:

1. See if the question refers to ANY FEDERAL LEGISLATION that might be held either to (i) supersede the state regulation or PREEMPT the field, or (ii) AUTHORIZE state regulation otherwise impermissible.
2. If neither of these possibilities is dispositive, ask if the state legislation either DISCRIMINATES against interstate or out of state commerce or place an UNDUE BURDEN on the free flow of interstate commerce. If the legislation is discriminatory, it will be invalid unless (i) it furthers an important state interest AND there are no reasonable nondiscriminatory alternatives, or (ii) the state is a market participant. If the legislation does not discriminate but burdens interstate commerce, it will be invalid if the burden on commerce outweighs the state’s interest. Consider whether there are less restrictive alternatives.

Question 63

Conlaw: State Regulation or Taxation of Commerce: Power of States to Tax Interstate Commerce: list

Answer 63

2. Use Tax
3. Sales Taxes
4. Ad Valorem Property Taxes
5. Privilege, License, Franchise, or Occupation Taxes

Question 64

Conlaw: State Regulation or Taxation of Commerce: Power of States to Tax Foreign Commerce

Answer 64

IMPORT EXPORT CLAUSE
No state shall, without the Consent of Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection laws.

1. Import-Export Clause prohibits the states from imposing any tax on imported goods or on commercial activity connected with imported goods as such (i.e., taxes discriminating against imported goods) unless there is congressional consent
2. Import-Export clause prohibits states from imposing any tax on goods after they have ENTERED THE EXPORT STREAM.

COMMERCE CLAUSE
Congress has exclusive power to regulate foreign commerce and thus inherently limits a states power to tax that commerce. Therefore, a state tax applied to foreign commerce must meet all the Commerce Clause tests that apply to state taxation of interstate commerce. And even if a state tax meets those tests, the tax is invalid if it would (i) create a substantial risk of international multiple taxation or (ii) prevent the federal government from speaking with one voice regarding international trade or foreign affairs issue.

Question 65

Conlaw: Individual Guarantees Against Governmental or Private Action: Limitations on Power and State Action Requirement: Tips for Bar Exam

Answer 65

1. State Must Be Significantly Involved in Private Entity–merely granting a license or providing essential service is insufficient.
2. No Constitutional Mandate to Outlaw Discrimination–Constitution forbids only their encouraging or authorizing it.

Question 66

Conlaw: Individual Guarantees Against Governmental or Private Action: Retroactive Legislation (4)

Answer 66

1. Contract Clause–Impairment of Contract
2. Ex Post Facto Laws
3. Bills of Attainder
4. Due Process Considerations

Question 67

Conlaw: Individual Guarantees Against Governmental or Private Action: Taking Clause
Generally

Answer 67

Fifth Amendment prohibits governmental taking of private property “for public use without just compensation.” The prohibition is applicable to the states through the 14th Amendment, and taking questions often arise in connection with the states’ exercise of their police power (i.e., the power to legislate for the health, welfare, safety, etc. of the people).

NOT A GRANT OF POWER–rather a limitation on power. The power for a taking must arise out of some other source–like police power.

SCOPE OF TAKING–encompasses some governmental action that significantly damages property or impairs the use. Even intangibles may be the subject of a taking.

“PUBLIC USE” LIMITATION LIBERALLY CONSTRUED–the court will not review underlying policy decisions. A use will be held to be public as long as it is rationally related to a legitimate public purpose, e.g., health, welfare, safety, moral, social, economic, political, or aesthetic ends. The government may even authorized a taking by private enterprise as long as the taking will redound to the public advantage.

Question 68

Conlaw: Individual Guarantees Against Governmental or Private Action: Equal Protection: Constitutional Source and Applicable Standards

Answer 68

The Equal Protection Clause of the 14th Amendment has no counterpart in the Constitution applicable to the federal government. However, grossly unreasonable discrimination by the federal government violates the Due Process Clause of the 5th Amendment. Thus there are really two equal protection guarantees. The Court applies the same standards under either constitutional provision.

Same standards as for due process: strict scrutiny, intermediate scrutiny, rational basis.

Question 69

Conlaw: Individual Guarantees Against Governmental or Private Action: Fundamental Rights: list 4 major categories

Answer 69

1. Right of Privacy
2. Right to Vote
3. Right to Travel
4. Right to Refuse Medical Treatment–NOT

Question 70

Conlaw: First Amendment Freedoms: Freedom of Association and Belief: Nature of the Right

Answer 70

Nature of the Right of freedom of association: protects right to join together with other persons for expressive or political activity (not absolute–can be infringed to serve a compelling government interest).

Question 71

Conlaw: First Amendment Freedoms: Freedom of Religion: Constitutional Provision and Applicability to States

Answer 71

First Amendment provides “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

Question 72

Contracts: What is a Contract: Common Law vs. Article 2 Sale of Goods

Answer 72

Generally, the common law governs contracts. However, special rules have been developed for contracts involving the sale of goods. Where Article 2 and the common law differ in the sale of goods, Article 2 prevails.

SALE DEFINED
A sale is a contract in which title to GOODS passes from the seller to the buyer for a price.

GOODS DEFINED
All THINGS MOVABLE at the time they are identified as the goods to be sold under the contract. Applies to most tangible things, but not real estate, services, or intangibles, or to construction contracts. Goods associated with real estate (crops, uncut timber, minerals) may fall under Article 2 in certain circumstances.

CONTRACT INVOLVING GOODS AND NONGOODS
A court will determine which aspect is dominant and apply that law to the whole thing. However, if the contract divides payment between goods and services, then Article 2 will apply to the sale portion and common law to services portion.

MERCHANTS V. NONMERCHANTS
A number of Article 2 rules depends on whether the seller is a merchant or nonmerchant. A merchant is one who regularly deals in goods of the kind sold or who otherwise by his profession holds himself out as having special knowledge or skills as to the practices or goods involved. For many of the Art 2 provisions dealing with general business practices, almost anyone in business will be deemed a merchant. But a few rules are narrower and require a person to be a merchant with respect to goods of the kind being sold.

Question 73

Contracts: What is a Contract: Creation of a Contract

Answer 73

When a suit is brought in which one party seeks to enforce a contract or to obtain damages for breach of contract, a court must first decide whether there was in fact a contract. In making this determination, a court will ask the following 3 basic questions:

1. Was there mutual assent?
2. Was there consideration or some substitute for consideration?
3. Are there any defenses to creation of the contract?

Question 74

Contracts: Mutual Assent–Offer and Acceptance: The Offer: requirements

Answer 74

1. Promise, Undertaking, or Commitment
2. Definite and Certain Terms
3. Communication to Offeree

Question 75

Contracts: Mutual Assent–Offer and Acceptance: What are 2 ways that an offer may be terminated?

Answer 75

1. Termination by Acts of Parties

2. Termination by Operation of Law

Question 76

Contracts: Mutual Assent–Offer and Acceptance: Auction Contracts

Answer 76

UCC contains some special rules regulating auction sales. They are:
1. Goods Auctioned in Lots: in a sale by auction, if goods are put up in lots, each lot is the subject of a separate sale.

2. When Sale is Complete: a sale by auction is complete when the auctioneer so announces by the FALL OF THE HAMMER or in another customary manner. Where a bid is made while the hammer is falling in acceptance of a prior bid, the auctioneer may, in his discretion, reopen the bidding or declare the goods sold under the bid on which the hammer was falling.
3. Auction With Reserve or Without Reserve: An auction sale is with reserve unless the goods are explicitly put up without reserve. With reserve means the AUCTIONEER MAY WITHDRAW THE GOODS at any time until he announces completion of the sale. Without reserve–may not be withdrawn unless no bid made within a reasonable time. In either case, a bidder can retract his bid until the auctioneer announces completion of the sale, but a bidder’s retraction does not revive any previous bid.
4. A Bid on Seller’s Behalf: Except at a forced sale, if the auctioneer knowingly receives a bid on the seller’s behalf, or the seller makes a bid (in order to drive up the price of the article), and notice has not been given that liberty for such bidding is reserved, the winning bidder may at his option avoid the sale or take the goods at the price of the LAST GOOD FAITH BID prior to the completion of the sale.

Question 77

Contracts: Consideration: Promissory Estoppel or Detrimental Reliance

Answer 77

Promissory Estoppel or Detrimental Reliance are Substitutes for Consideration: CONSIDERATION IS NOT NECESSARY if the facts indicate that the promisor should be estopped from not performing.

Under Section 90 of R1, a promise is enforceable if necessary to prevent injustice if:

1. The promisor should reasonably EXPECT TO INDUCE ACTION OR FORBEARANCE;
2. OF A DEFINITE AND SUBSTANTIAL CHARACTER;
3. And SUCH ACTION OR FORBEARANCE IS IN FACT INDUCED.

Section 90 of R2 no longer requires that the action or forbearance be “of a definite and substantial character.” It also provides that the remedy “MAY BE LIMITED AS JUSTICE REQUIRES.”

Typically, if the elements for promissory estoppel are present, a jurisdiction following the R1 approach will award expectation damages, while a jurisdiction following R2 might award reliance damages.

Question 78

Contracts: Requirement that No Defenses Exist: Defenses to Formation: Absence of Consideration

Answer 78

If the promises exchanged at the formation stage lack the elements of bargain or legal detriment, NO CONTRACT exists. In this situation, one of the promises is always illusory.

Question 79

Contracts: Determining the Terms of the Contract: General Rules of Contract Construction (7)

Answer 79

1. Construed as a Whole: specific clauses will be subordinated to the contract’s general intent
2. Ordinary Meaning of Words: unless it is clearly shown that they were meant to be used in a technical sense
3. Inconsistency Between Provisions: written or typed provisions will prevail over printed provisions (which indicate a form contract)
4. Custom and Usage: in the particular business and in the particular locale
5. Preference to Construe Contract as Valid and Enforceable
6. Ambiguities Construed Against Party Preparing Contract (absence evidence of the intent of the parties)
7. Weight Given to Conflicting Rules of Construction: course of dealing is given greater weight than trade usage; evidence of express terms prevails over evidence of trade usage and evidence of course of dealing

Question 80

Contracts: Performance and Excuse of Nonperformance: Performance Under Article 2: Obligation of Good Faith

Answer 80

Article 2 requires all parties to act in good faith, which is defined as “honesty in fact and the observance of reasonable commercial standards of fair dealing.”

Question 81

Contracts: Performance and Excuse of Nonperformance: Has the Absolute Duty to Perform Been Discharged (15)

Answer 81

1. Discharge by Performance
2. Discharge by Tender of Performance
3. Discharge by Occurrence of Condition Subsequent
4. Discharge by Illegality
5. Discharge by Impossibility, Impracticability, or Frustration
6. Discharge by Rescission
7. Partial Discharge by Modification of Contract
8. Discharge by Novation
9. Discharge by Cancellation
10. Discharge by Release
11. Discharge by Substituted Contract
12. Discharge by Accord and Satisfaction
13. Discharge by Account Stated
14. Discharge by Lapse
15. Effect of Running of Statute of Limitation

Question 82

Contracts: Breach: Perfect Tender Rule–Sale of Goods: Commercial Unit Defined

Answer 82

A “commercial unit” is one that by commercial usage is treated as a single whole for the purpose of sale, and division of which materially impairs its value. A commercial unit may be a single article or a set of articles, a quantity, or other unit treated in use or in the relevant market as a single whole. The test for commercial unit is not only what unit has been the basis of the contract, but also whether the partial acceptance produces so materially an adverse effect upon the remainder as to constitute bad faith.

Question 83

Contracts: Remedies: Monetary Remedy–Damages: Contract for Sale of Land

Answer 83

The standard measure of damages for breach of land sale contracts is the difference between the contract price and the fair market value of the land.

Question 84

Contracts: Remedies: Rescission

Answer 84

Rescission is a remedy where the original contract is considered voidable and rescinded. The parties are left as though a contract had never been made.

GROUNDS for rescission must have occurred either before or at the time the contract was entered into. The grounds are:

1. Mutual mistake of a material fact;
2. Unilateral mistake if the other party knew or should have known of the mistake;
3. Unilateral mistake if hardship of the mistaken party is so extreme it outweighs the other party’s expectations under the contract;
4. Misrepresentation of fact or law by either party as to material factor in the negotiations that was relied upon; and
5. Other grounds, such as duress, undue influence, illegality, lack of capacity, and failure of consideration.

DEFENSES: all equitable defenses (laches, unclean hands, sale to a bona fide purchaser); plaintiff’s negligence is not a defense

ADDITIONAL RELIEF
If the plaintiff has paid money to the defendant, she is entitled to restitution as well as rescission.

Question 85

Contracts: Remedies: Reformation (grounds; standard; parol evidence rule and statute of frauds; defenses)

Answer 85

GROUNDS

1. Mutual Mistake: usually (i.e., the parties agree to a set of terms and unbeknownst to either party the written contract fails to reflect those terms).
2. Unilateral Mistake: party who knows of the mistake does not disclose it.
3. Misrepresentation (innocent or fraudulent): reform to reflect the EXPRESSED intent of the parties.

CLEAR AND CONVINCING EVIDENCE STANDARD

PAROL EVIDENCE AND STATUTE OF FRAUD RULES DO NOT APPLY

DEFENSES
In addition to the general equitable defenses, the existence of a bona fide purchaser for value is also a defense to reformation. Similarly, reformation will not be permitted if the rights of third parties will be unfairly affected.

Question 86

Contracts: Rights and Duties of Third Parties to the Contract: Power of Person Other than Owner to Transfer Good Title to a Purchaser (3)

Answer 86

1. ENTRUSTING
   Entrusting goods to a merchant WHO DEALS IN GOODS OF THAT KIND gives him the power (but not the right) to transfer all rights of the entruster to a BUYER IN THE ORDINARY COURSE OF BUSINESS. Buyer must be good faith buyer.
2. VOIDABLE TITLE CONCEPT
   UCC continues the pre-code concept of voidable title. If a sale is induced by fraud, the seller can rescind the sale and recover the goods from the fraudulent buyer. However, the defrauded seller cannot recover the goods from a GOOD FAITH PURCHASER FOR VALUE who bought from the faudulent buyer.

Under the UCC, the GOOD FAITH PURCHASER FOR VALUE CUTS OFF THE DEFRAUDED SELLER’S RIGHTS, even though:

(i) the seller was deceived as to the identity of the buyer
(ii) the delivery was in exchange for a check later dishonored
(iii) the sale was a cash sale
(iv) the fraudulent conduct of the buyer is punishable as larceny

The rights of defrauded seller are cut off both by a buyer and by a person who takes a SECURITY INTEREST in the goods.

3. THIEF GENERALLY CANNOT PASS TITLE: because his title is VOID. A seller can transfer only the title he has or has power to transfer. So even a good faith purchaser for value cannot cut of the rights of the true owner.

Limited Exceptions: where the buyer has made ACCESSIONS (valuable improvements) to the goods or the true owner is estopped from asserting title (e.g., if the true owner expressly or impliedly represented that the thief had title).

Question 87

Crimlaw: Jurisdiction and General Matters: Sources of Criminal Law

Answer 87

1. Common Law Crimes: a common law crime is one created and enforce by the judiciary in the absence of a statute defining the offense.

–No Federal Common Law Crimes (although Congress has provided for common law crimes in DC)

–Traditional Approach: American criminal law included the English common law crimes unless repealed expressly or impliedly by statute

–Modern Trende: common law crimes abolished through comprehensive criminal codes (although this does not mean that common law defenses have been abolished)

2. Constitutional Crimes
   Treason is levying war against the US, adhering to the enemies of the US, or giving them aid and comfort. No person can be convicted of treason unless two witnesses testify to the same overt act, or unless the defendant confesses.
3. Administrative Crimes: legislature may delegate to an administrative agency the power to prescribe rules, the violation of which may be punishable as a crime. However, the legislature may not delegate the power to determine which regulations will carry criminal penalties; nor may it delegate the power of adjudication (determination of guilt or innocence).
4. Model Penal Code

Question 88

Crimlaw: Jurisdiction and General Matters: Theories of Punishment

Answer 88

1. Incapacitation (Restraint)
2. Special Deterrence: deters the criminal
3. General Deterrence: deters persons other than criminal
4. Retribution
5. Rehabilitation
6. Education: publicity attending the trial, conviction, and punishment of some criminals serves to educate the public to distinguish good and bad conduct and develop respect for the law.

Question 89

Crimlaw: Jurisdiction and General Matters: Classification of Crimes

Answer 89

1. Felonies and Misdemeanors
   - -felony: punishable by death or imprisonment exceeding one year
   - -misdemeanor: punishable by imprisonment of less than one year or by a fine only
   - -common law felonies: murder, manslaughter, rape, sodomy, mayhem, robbery, larceny, arson, burglary
2. Malum In Se and Malum Prohibitum
   - -malum in se: wrong in itself (inherently evil either because criminal intent is an element of the offense, or because the crime involves moral turpitude)
   - -malum prohibitum: wrong only because it is prohibited by legislation
3. Infamous Crimes:
   - -common law: all crimes involving fraud, dishonesty, or the obstruction of justice.
   - -modern law: this concept has been expanded to include most felonies.
4. Crimes Involving Moral Turpitude
   Committing a base or vile act, often equated with the concept of malum in se.

Question 90

Crimlaw: Jurisdiction and General Matters: Principles of Legality–Void-For-Vagueness Doctrine

Answer 90

Due Process Clause of the federal Constitution, found in 5th and 14th Amendments, has been interpreted by the Supreme Court to require that no criminal penalty be imposed without fair notice that the conduct is forbidden.

Void-for-Vagueness Doctrine incorporates two considerations:

1. Fair Warning: statute must give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute.
2. Arbitrary and Discriminatory Enforcement Must be Avoided

Question 91

Crimlaw: Jurisdiction and General Matters: Constitutional Limitations on Crime Creation

Answer 91

1. No Ex Post Facto Laws

Ex Post Facto law is one that operates retroactively to:

• -make criminal an act that when done was not criminal;
• -aggravate a crime or increase the punishment therefor;
• -change the rules of evidence to the detriment of criminal defendant as a class; OR
• -alter the law of criminal procedure to deprive criminal defendants of a substantive right.

2. No Bills of Attainder
   A legislative act that inflicts punishment or denies a privilege WITHOUT A JUDICIAL TRIAL.

Although a bill of attainder may also be an ex post facto law, a distinction can be drawn in that an ex post facto law does not deprive the offender of a judicial trial.

Question 92

Crimlaw: Jurisdiction and General Matters: Interpretations of Criminal Statutes

Answer 92

1. Plain Meaning Rule
   (except where applying the plain meaning would lead to injustice, oppression, or an absurd consequence)
2. Ambiguous Statutes Strictly Construed in Favor of Defendant
3. Expressio Unius, Exclusio Alterius
4. The Specific Controls the General, the More Recent Control the Earlier
5. Effect of Repeal: at common law, in the absence of a savings provision, the repeal or invalidation of a statute operates to bar prosecutions for earlier violations, provided the prosecution is pending or not yet under way at the time of the repeal. However, a repeal will not operate to set free a person who has been prosecuted and convicted and as to whom the judgment has become final.

Question 93

Crimlaw: Jurisdiction and General Matters: Merger: Developing rules against multiple convictions for Parts of the Same Transaction

Answer 93

Many jurisdictions are developing prohibitions against convicting a defendant for more than one offense where the multiple offenses were all part of the same “criminal transaction.” In some states, this is prohibited by statute. In others, courts adopt a rule of merger or of double jeopardy to prohibit it.

Question 94

Crimlaw: Essential Elements of Crime: Physical Act

Answer 94

An act is defined as a BODILY MOVEMENT. A thought is not an act.

The Act Must Be Voluntary

Voluntary does NOT include

• -conduct that is not the product of the actor’s determination
• -reflexive or convulsive acts
• -acts performed while defendant was unconscious or asleep unless the defendant knew he might fall asleep or become unconscious and engaged in dangerous behavior

Question 95

Crimlaw: Accomplice Liability: Scope of Liability

Answer 95

An accomplice is responsible for the crimes he did or counseled AND for any other crimes committed in the course of committing the crime contemplated, as long as the other crimes were PROBABLE OR FORESEEABLE.

INABILITY TO BE PRINCIPAL NO BAR TO LIABILITY AS ACCOMPLICE

EXCLUSIONS FROM LIABILITY
Under some circumstances, a person who would otherwise be liable as an accomplice is not subject to conviction, either because of a legislative intent to exempt him or because he has a special defense.

1. Members of a Protected Class
   Such as a woman where statute was against the transporting of women in interstate commerce for immoral purposes.
2. Necessary Parties Not Provided For
   If a statute defines a crime in a way that necessarily involves more than one participant and provides for the liability of only one participant, it is presumed that the legislative intent was to immunize the other participant from liability as an accomplice. The rule is most often applied to statutes making the sale of certain items a criminal offense.
3. Withdrawal
   One who has rendered encouragement or aid to another may avoid liability as an accomplice if he voluntarily withdraws from the crime before it is actually committed by the principal. What is necessary for an effective withdrawal DEPENDS UPON WHAT THE PERSON INITIALLY DID.
   (i) If the person merely encouraged the commission of the crime, withdrawal requires that he REPUDIATE this encouragement.
   (ii) If the person assisted by PROVIDING SOME MATERIAL to the principal, withdrawal requires at least that the person attempt to NEUTRALIZE THIS ASSISTANCE, e.g., by doing everything possible to retrieve the material provided.

If it is impossible to withdraw by these means, an alternative means of withdrawing is to NOTIFY THE AUTHORITIES or take some other action to prevent the commission of the offense. In any case, the withdrawal must occur before the chain of events leading to the commission of the crime become unstoppable.

Question 96

Crimlaw: Inchoate Offenses: Solicitation

Answer 96

At common law it was a misdemeanor to solicit another to commit a felony or an act that would breach the peace or obstruct justice. Modern statutes often retain the crime of solicitation, but some restrict it to the solicitation of certain serious felonies.

1. Elements
   Consists of inciting, counseling, advising, inducing, urging, or commanding another to commit a felony with the SPECIFIC INTENT THAT THE PERSON SOLICITED COMMIT THE CRIME (general approval or agreement is insufficient). The offense is complete at the time the solicitation is made. It is not necessary that the person solicited agree to commit the crime or do anything in response.
2. Attempt Distinguished: solicitation is not an attempt
3. Defenses and Potential Defenses

Factual Impossibility No Defense
(person solicited was a police officer)

Withdrawal or Renunciation No Defense
(MPC recognizes renunciation as a defense if the defendant prevents the commission of the crime, such as by persuading the person solicited not to commit the crime)

Exemption from Intended Crime is Defense: because of legislative intent to exempt her (minor female cannot be found guilty of solicitation of statutory rape)

Question 97

Crimlaw: Inchoate Offenses: Conspiracy generally

Answer 97

At common law, a conspiracy was defined as a combination or agreement between two or more persons to accomplish some criminal or unlawful purpose, or to accomplish a lawful purpose by unlawful means. Recent state codifications require that the object of the conspiracy be a specifically proscribed offense. Yet many states essentially codify the expansive common law notion by making it a crime to conspire to commit acts injurious to the public welfare. The Supreme Court has indicated that such statutes are unconstitutionally vague unless construed narrowly.

NO MERGER–CONVICTION FOR CONSPIRACY AND SUBSTANTIVE CRIME

LIABILITY OF ONE CONSPIRATOR FOR CRIMES BY OTHER CONSPIRATORS
One conspirator may, by virtue of his participation in the scheme, meet the requirements for “aiding and abetting” the commission of crimes by his co-conspirators and therefore be liable for those crimes as an accomplice. Even if the conspirator did not have the sufficient mental state for accomplice liability, a separate doctrine provides that each conspirator may be liable for the crimes of all other conspirators if TWO REQUIREMENTS are met:

1. The crimes were committed in furtherance of the objective of the conspiracy; AND
2. The crimes were a “natural and probable consequence” of the conspiracy, i.e., FORESEEABLE

Applies only if the conspirator has not made a legally effective withdrawal from the conspiracy before the commission of the crime by the co-conspirator.

Attempt Distinguished: in attempt, the law requires that there be a substantial step toward commission of the crime. In conspiracy, the agreement is normally sufficient to constitute the crime.

Question 98

Crimlaw: Responsibility and Criminal Capacity: Intoxication

Answer 98

Intoxication may be caused by ANY SUBSTANCE. Evidence of intoxication may be raised whenever the intoxication negates the existence of an element of a crime.

VOLUNTARY INTOXICATION
Intoxication is voluntary if it is the result of the intentional taking without duress of a substance known to be intoxicating. The person need not have intended to become intoxicated.

Defense to Specific Intent Crimes: crimes that require purpose (intent) or knowledge. (not good defense for general intent crimes)

No Defense to Strict Liability Crimes or Crimes Requiring Malice, Recklessness, or Negligence

Defense to First Degree Murder, But Not Second Degree Murder

INVOLUNTARY INTOXICATION
Intoxication is involuntary only if it results from the taking of an intoxicating substance (i) without knowledge of its nature, (ii) under direct duress imposed by another, or (iii) pursuant to medical advice while unaware of the substance’s intoxicating effect.

Involuntary intoxication may be treated as mental illness, in which case a defendant is entitled to acquittal if, because of the intoxication, she meets whatever test the jurisdiction has adopted for insanity.

RELATIONSHIP TO INSANITY
Two separate defenses. However, continuous, excessive drinking or drug use may bring on actual insanity (delirium tremens). Thus a defendant may be able to claim both an intoxication defense and an insanity defense.

Question 99

Crimlaw: Principles of Exculpation: Justification (Rule plus list of 10)

Answer 99

Under certain circumstances, the commission of a proscribed act is viewed as justified and not appropriate for criminal punishment. Generally, the defendant must raise the issue as an affirmative defense by showing SOME evidence. Then the state may require the prosecution ot prove that the use of force was not justified or it may impose on the defendant the burden of proving this affirmative defense by a preponderance of the evidence.

1. Self-Defense
2. Defense of Others
3. Defense of a Dwelling
4. Defense of Other Property
5. Crime Prevention
6. Use of Force to Effectuate an Arrest
7. Resisting Arrest
8. Necessity
9. Public Policy
10. Domestic Authority

Question 100

Crimlaw: Principles of Exculpation: The Excuse of Duress (Also Called Compulsion or Coercion)

Answer 100

A person is not guilty of an offense, OTHER THAN HOMICIDE, if he performs an otherwise criminal act under the threat of imminent infliction of death or great bodily harm, provided that he reasonably believes death or great bodily harm will be inflicted on himself or on a member of his immediate family if he does not perform such conduct. THREATS TO HARM ANY THIRD PERSON mya also suffice to establish the defense of duress. Traditionally, THREATS TO PROPERTY were NOT SUFFICIENT; however, a number of states, consistent with the MPC, do allow for threats to property to give rise to a duress defense, assuming that the value of the property outweighs the harm done to society by commission of the crime.

An act committed under duress is termed excusable rather than justifiable.

1. Necessity Distinguished
   Unlike necessity, duress ALWAYS involves a human threat.

Question 101

Crimlaw: Offenses Against the Person: Mayhem

Answer 101

1. Common Law
   The felony of mayhem required either dismemberment (the removal of some bodily part) or disablement of a bodily part.
2. Modern Statutes
   Most states retain the crime of mayhem in some form, although the trend is to abolish mayhem as a separate offense and to treat it as some form of aggravated battery. Modern statutes have expanded the scope of mayhem to include permanent disfigurement. A few states also require specific intent to maim or disfigure.

Question 102

Crimlaw: Offenses Against the Person: Homicide: Classifications at Common law.

Answer 102

At common law, homicides were divided into three classifications:

a. Justifiable homicides (those commanded or authorized by law);
b. Excusable homicides (those for which there was defense to criminal liability);
c. Criminal homicides.

Question 103

Crimlaw: Offenses Against the Person: False Imprisonment

Answer 103

Unlawful
Confinement of a person
Without his valid consent.

1. Confinement: victim be compelled to go where the does not want to go or to remain where he does not wish to remain.
2. “Unlawfulness”: unlawful unless specifically authorized by law or the consent of the person.
3. Lack of Consent: Must be freely given, so is invalidated by coercion, threats, deception, or incapacity due to mental illness, substantial cognitive impairment, or youth.

Question 104

Crimlaw: Offenses Against the Person: Kidnapping

Answer 104

A confinement of a person that involves either:
Some MOVEMENT of the victim; OR
CONCEALMENT of the victim in a secret place.

Common law: extreme movement
Modern law: some movement–amount immaterial

Secrecy: Generally not necessary, but some statutes require it when confinement rather than movement of victim.

Consent: no liability for kidnapping

Relationship to Other Offenses: if movement part of other crime (rape or robbery) then kidnapping charge only where the movement substantially increases the risk to the victim.

AGGRAVATED KIDNAPPING

• -kidnapping for ransom
• -kidnapping for the purpose of commission of other crimes
• -kidnapping for offensive purpose (intent to harm or commit sexual crime)
• -child stealing

Question 105

Crimlaw: Sex Offenses: Rape

Answer 105

Traditionally, rape (a felony) was the unlawful carnal knowledge of a woman bya man, not her husband, without her effective consent. Today a number of states have renamed rape as sexual assault and have made such statutes gender neutral.

1. Penetration Sufficient: emission not necessary to complete the crime.
2. Absence of Marital Relationship: at common law and under MPC. Most states have dropped this requirement where the parties are estranged or separated, or abolished it entirely.
3. Lack of Effective Consent
   - -intercourse accomplished by force
   - -intercourse accomplished by threats that place victim in fear of great and immediate bodily harm
   - -victim incapable of consentin
   - -consent obtained by fraud–limited

Fraud as to Whether Act Constitutes Sexual Intercourse: rape
Fraud as to Whether Defendant is Victim’s Husband: no rape
Other Fraud: no rape

Question 106

Crimlaw: Sex Offenses: Statutory Rape

Answer 106

1. Victim Below Age of Consent
2. Mistakes as to Age–no, rape is strict liability (second best answer, if defendant reasonably believed the victim old enough to give consent)

Question 107

Crimlaw: Sex Offenses: Adultery and Fornication (2)

Answer 107

Were not common law crimes in England but were punished by the church as ecclesiastical offenses. They were made misdemeanor statutes in some states.

1. Adultery
   Any person who cohabits or has sexual intercourse with another not his spouse commits the misdemeanor offense of adultery if:
   –the behavior is open and notorious; and
   –the person is not married and knows the other person in such intercourse is married.
2. Fornication
   sexual intercourse or open cohabitation by unmarried persons

Question 108

Crimlaw: Sex Offenses: Incest

Answer 108

Statutory offense, usually a felony, that consists of either marriage or a sexual act between persons who are too closely related.

1. Degree of Relationship
   No uniformity exists among the states. Majority restricts the crime to blood relatives, although a significant number of states include some nonblood relatives.
2. Degree of Responsibility
   Some states make a distinction in penalties depending on the parties involved.

Question 109

Crimlaw: Property Offenses: Larceny

Answer 109

A taking (caption);
And carrying away (asportation);
Of tangible (gas and electricity) personal property;
Of another;
By trespass;
With intent to permanently (or for an unreasonable time) deprive the person of his interest in the property.

OF ANOTHER (larceny vs. embezzlement
Someone with a superior possessory interest.
If defendant had lawful custody at the time of the taking, then not larceny, but may be embezzlement.
A lessee has a superior possessory interest to a lessor.
BAILEE: generally has possession, unless she opens closed containers (breaks bulk) and takes it with intent to steal.
STOLEN PROPERTY: 2nd thief guilty of larceny when takes from 1st thief.
JOINT PROPERTY: no larceny

TAKING
Mere destruction or movement not sufficient.
Sufficient if caused to occur through an innocent agent.

ASPORTATION: all parts or portion of property be moved and that this movement–which need only be slight–be part of the carrying away process.

TRESPASSORY: without the consent of the person in custody or possession of the property.

LARCENY BY TRICK: taking by consent induced by misrepresentation

INTENT TO PERMANENTLY DEPRIVE
Sufficient if defendant intends to deal with property in a manner that involves substantial risk of loss.
Sufficient if intend to sell back to original owner or to pledge them.
Insufficient if intend to borrow.
Insufficient if intend to obtain repayment of debt.
Possibly sufficient if intend to pay for property but property not for sale.
Possibly sufficient if intend to return property hoping (not demanding) reward.

SPECIALIZED APPLICATION OF LARCENY DOCTRINE

ABANDONED PROPERTY: no larceny

LOST PROPERTY: Larceny if (i) the finder must know or have reason to know she CAN FIND out the IDENTITY OF THE TRUE OWNER; and (ii) the finder must, at the moment she takes possession of the lost property, have the INTENT necessary for larceny. (if later formulates the intent–no larceny).

MISDELIVERED PROPERTY: Larceny if (i) the recipient must, at the time of the misdelivery, REALIZE THE MISTAKE that is being made; and (ii) the recipient must, at the time she accepts the delivery, have the INTENT required for larceny.

CONTAINER SITUATIONS:
Parties intended transfer of container–then not larceny if take something out of container.
Parties did not intend transfer of container, but considered container empty–then larceny if take something.

CONTINUING TRESPASS
Taking an item without consent, then while having the item in possession decide to permanently deprive the owner of the item is larceny.

Question 110

Crimlaw: Property Offenses: Embezzlement

Answer 110

The fraudulent; 
Conversion;
Of Property;
Of Another;
By a person in lawful possession of that property.

Conversion: requires only that the person deal with the property in a manner that is inconsistent with the trust arrangement pursuant to which he holds it.

Property: real property and services can’t be embezzled (very rare statutes make real property subject to embezzlement)

Requirement that Property Be that “Of Another”–money borrowed belongs to the converter in exchange for the note, so cannot be embezzled if not repaid.

Fraudulent Intent Required

(i) Intent to restore EXACT property–no embezzlement.
(ii) Intent to restore SIMILAR OR SUBSTANTIALLY IDENTICAL property–embezzlement.
(iii) Claim of right–no embezzlement.

Necessity for Demand for Return–only when there is doubt as to whether there has been a conversion.

Limitation to Property Entrusted–finding of lost property and while in lawful possession of it fraudulently convert it is not embezzlement in most states.

Question 111

Crimlaw: Property Offenses: False Pretenses

Answer 111

Obtaining title to the property of another by an intentional false statement of past or existing fact with intent to defraud the other.

LARCENY BY TRICK: if only CUSTODY AND NOT TITLE of the property is obtained.

Misrepresentation required of a matter of fact, either past or existing

Misrepresentation must be the cause of obtaining property.

Must be an INTENT to defraud.

Bad Check legislation (intent to defraud)
Abuse or Misuse of Credit Card (knowingly using unauthorized card–including cancelled card)

Question 112

Crimlaw: Property Offenses: Robbery

Answer 112

A taking;
Of personal property of another;
From the other's person or presence;
By force or intimidation;
With the intent to permanently deprive him of it. 

Force: sufficient to overcome victim’s resistance

Threats: must be threats of immediate death or serious physical injury to the victim, a member of her family, a relative, or a person in her presence at the time. A threat to do damage to property is only sufficient if it is a threat to destroy victim’s home.

Aggravated Robbery: created by statute and usually defined as robbery with a deadly weapon.

Question 113

Crimlaw: Property Offenses: Extortion

Answer 113

1. Common Law Definition: Corrupt collection of an unlawful fee by an officer under color of his office.
2. Modern Definition–Blackmail
   Obtaining property from another by means of certain oral or written threats.

Question 114

Crimlaw: Property Offenses: Receipt of Stolen Property

Answer 114

The common law misdemeanor of receipt of stolen property is substantially identical to the modern offense.

Receiving possession and control;
Of “stolen” personal property;
Known to have been obtained in a manner constituting a criminal offense;
By another person;
With the intent to permanently deprive the owner of his interest in the property.

1. Possession
   Manual possession is not necessary. it is also receiving if:
   –the thief places the stolen property in a place that the defendant has designated;
   –for profit, the defendant arranges for a sale of the property by the thief to a third person.
2. “Stolen” Property
   Most jurisdictions describe stolen property broadly to include property obtained by commission of any of the property offenses. However, the property must have “stolen” status at the time it is received by defendant. (undercover cop deal where goods recovered by cops and then used with owner’s permission–no receipt of stolen property, but may be guilty of attempt to receive stolen property)

Question 115

Crimlaw: Property Offenses: Statutory Changes in Property Acquisition Offenses

Answer 115

Modern criminal codes and MPC have substantially altered the common law. Among the major changes are the following:

1. Consolidation of Offenses into Theft
   Theft is a modern statutory crime, not a common law crime.
2. Expansion of Property Subject to Larceny (and Other Offenses): services, documents, intangibles, joint property
3. Rejection of Asportation for Larceny: require only that control be acquired
4. Rejection of Technicalities of Trespass Requirement: defendant have obtained unauthorized control over the property

Question 116

Crimlaw: Property Offenses: Forgery

Answer 116

At common law, forgery and uttering a forged instrument are separate offenses.

FORGERY
Making or altering;
Of a false writing;
With intent to defraud.

UTTERING A FORGED INSTRUMENT
Offering as genuine;
An instrument that may be the subject of forgery and is false;
With intent to defraud.

Writings That Are Possible Subjects of Forgery
Any writing that has APPARENT LEGAL SIGNIFICANCE (includes typewritten, etc.)

Required Falsity–Writing Itself Must “Be a Lie”
Not sufficient that the writing contain a false statement.

Required Making

• -entire instrument or material alteration
• -fraudulently obtaining signature of another

Required Intent–Intent to Defraud

Question 117

Crimlaw: Property Offenses: Malicious Mischief

Answer 117

MALICIOUS;
Destruction of, or damage to;
Property of another.

Question 118

Crimlaw: Offenses Against the Habitation: Burglary

Answer 118

A Breaking;
And entry;
Of the dwelling;
Of another;
At nighttime;
With the intent of committing a felony therein.

Entry is made by placing any portion of the body inside the structure, even momentarily. Includes insertion of a tool if purpose is for accomplishing the felony. Not sufficient if inserted to gain entry.

“Of Another” –Occupancy is Determinative–an owner can burglarize own property if it is rented and used as a dwelling by others.

Nighttime–countenance of a person could not be discerned by natural light.

Required Intent–Intent to Commit a Felony at Time of Entry (doesn’t matter if actually carried out the felony)

Question 119

Crimlaw: Offenses Against the Habitation: Arson

Answer 119

The malicious;
Burning;
Of the dwelling;
Of another.

BURNING: damage must be caused by FIRE (explosion doesn’t work under common law, but does work under many modern statutes) and there must be charring (not just scorching)

DWELLING: most states extend to structures other than dwelling

MALICE: knowledge that the structure would burn or reckless disregard of an obvious risk that the structure would burn

HOUSEBURNING:
Malicious burning of one’s own dwelling if the structure is situated either in a city or town or so near to other houses as to create a danger to them.

ARSON WITH INTENT TO DEFRAUD AN INSURER
Not an offense at common law, but is under modern statutes.

Question 120

Crimlaw: Offenses Involving Judicial Procedure: Perjury

Answer 120

Misdemeanor at common law that consisted of willful and corrupt taking of a false oath in regard to a material matter in a judicial proceeding.

1. Materiality
   - -must be alleged in the indictment and proved by the prosecution
   - -statement is material if it might affect some phase or detail of the trial, hearing, declaration, etc.
2. Contradictory Statements
   If made during the same proceeding, but admits that one is false during the hearing, then cannot be prosecuted–to encourage witnesses to correct any false statements before substantial damage is done
3. Civil Liability
   In litigation brought under section 1983, all witnesses, including police officers are absolutely immune from civil liability based on their testimony in judicial proceedings.

SUBORNATION OF PERJURY
Procuring or inducing another to commit perjury.

Question 121

Crimlaw: Offenses Involving Judicial Procedure: Bribery

Answer 121

Common law misdemeanor of bribery consisted of the corrupt payment or receipt of anything of value in return for official action. Under modern statutes, it can be a felony, and it may be extended to classes of persons who are not public officials. Either the offering of a bribe or the taking of a bribe may constitute the crime.

Mutual Criminal Intent Unnecessary

Failure to Report a Bribe–misdemeanor under some statutes

Question 122

Crimpro: Introduction: Constitutional Rights Not Binding on States

Answer 122

1. Right to Indictment by a grand jury for capital and infamous crimes.
2. Prohibition Against Excessive Bail–not yet determined whether 8th Amendment creates a right to bail (or whether it simply prohibits excessive bail) and whether it is binding on states. But most state constitutions create a right to bail and provision against excessive bail.

Question 123

Crimpro: Exclusionary Rule: In General

Answer 123

The exclusionary rule is a judge-made doctrine that prohibits the introduction, at a criminal trial, of evidence obtained in violation of a defendant’s 4th, 5th, or 6th Amendment rights.

Main purpose of the rule is to deter the government from violating a person’s constitutional rights.

A secondary purpose is to serve as one remedy for deprivation of constitutional rights.

Question 124

Crimpro: Exclusionary Rule: Limitations on the Rule (8)

Answer 124

1. Inapplicable to Grand Juries
2. Inapplicable to Civil Procedure
3. Inapplicable to Violations of State Law
4. Inapplicable to Internal Agency Rules
5. Inapplicable to Parole Revocation Proceedings
6. Good Faith Exception
7. Use of Excluded Evidence for Impeachment Purposes
8. Knock and Announce Rule Violations

Question 125

Crimpro: Exclusionary Rule: Enforcing the Exclusionary Rule

Answer 125

1. Defendant entitled to have the admissibility of evidence or a confession decided as a matter of law by a judge out of the hearing of the jury. It is permissible to let the jury reconsider the admissibility of the evidence if the judge finds it admissible, but there is no constitutional right to such a dual evaluation.
2. Burden of Proof: government bears the burden of proving admissibility by a preponderance of the evidencec.
3. Defendant’s Right to Testify at the suppresion hearing without his testimony being admitted against him at the trial on the issue of guilt.

Question 126

Crimpro: Fourth Amendment: In General

Answer 126

Fourth Amendment provides that people should be free in their persons from UNREASONABLE searches and seizures.

1. Search: a governmental intrusion into an area where a person has a reasonable and justifiable expectation of privacy.
2. Seizure: the exercise of control by the government over a person or thing.
3. Reasonableness: depends on circumstances

Question 127

Crimpro: Fourth Amendment: Arrests and Other Detentions: Grand Jury Appearance

Answer 127

For all practical purposes, seizure of a person (by subpoena) for a grand jury appearance is NOT WITHIN THE FOURTH AMENDMENT’S PROTECTION.

No need for subpoena to be based on probable cause or even objective suspicion.

Question 128

Crimpro: Fourth Amendment: Evidentiary Search and Seizure: General Approach

Answer 128

1. Does the defendant have a Fourth Amendment right?

(i) Was there government conduct?
(ii) Did the defendant have a reasonable expectation of privacy?

2. If so, did the police have a valid warrant?
3. If the police did not have a valid warrant, did they make a valid warrantless search and seizure?

Question 129

Crimpro: Confessions: Fourteenth Amendment–Voluntariness

Answer 129

For confessions to be admissible, the Due Process Clause of 14th Amendment requires that they be voluntary. Voluntariness is assessed by looking at the totality of circumstances, including the suspect’s age, education, and mental and physical condition, along with the setting, duration, and manner of police interrogation.

1. Must Be Official Compulsion
2. Harmless Error Test Applies
   A conviction will not be overturned if an involuntary confession was erroneously admitted into evidence and the government can show that there was other overwhelming evidence of guilt.
3. Can “Appeal” to Jury
   A finding of voluntariness by the trial court does not preclude the defendant from introducing evidence to the jury of the circumstances of the confession in order to cast doubt on its credibility.

Question 130

Crimpro: Confessions: Sixth Amendment Right to Counsel Approach

Answer 130

The Sixth Amendment provides that in all criminal prosecutions, the defendant has the right to the assistance of counsel. The right protects defendants from having to face a complicated legal system without competent help. It applies at ALL CRITICAL STAGES of a criminal prosecution AFTER formal proceedings have begun. The right is violated when the police deliberately elicit an incriminating statement from a defendant without first obtaining a waiver of the defendant’s right to have counsel present.

Since Miranda, the Sixth Amendment right has been limited to cases where ADVERSARY JUDICIAL PROCEEDINGS have begun. Thus the right does not apply in precharge custodial interrogations.

1. Stages at Which Applicable
   - -post indictment interrogation
   - -preliminary hearings to determine probable cause to prosecute
   - -arraignment
   - -post-charge lineups
   - -guilty plea and sentencing
   - -felony trials
   - -misdemeanor trials when imprisonment is actually imposed or a suspended jail sentence is imposed
   - -overnight recesses during trial
   - -appeals as a matter of right
   - -appeals of guilty pleas and pleas of nolocontendere
2. Stages at Which Not Applicable
   - -blood sampling
   - -taking of handwriting or voice exemplars
   - -photo identifications
   - -preliminary hearings to determine probable cause to detain
   - -brief recesses during the defendant’s testimony at trial
   - -discretionary appeals
   - -parole and probation revocation proceedings
   - -post-conviction proceeding
3. Offense Specific: if defendant makes a 6th amendment request for one charge, he must make a new request for a different charge.
   - -test used is the Blockburger test: two crimes are considered different offenses if EACH requires proof of an additional element that the other crime does not require
4. Waiver: must be knowing and voluntary (and doesn’t need presence of counsel at least if counsel was appointed by the court)
5. Remedy:
   TRIAL: if defendant was entitled to a lawyer at trial, the failure to provide counsel results in AUTOMATIC REVERSAL OF THE CONVICTION, even without any showing of specific unfairness in the proceedings.
   NONTRAIL PROCEEDINGS: harmless error rule applies
6. Impeachment: statement made by defendant may be used to impeach

Question 131

Crimpro: Confessions: Fifth Amendment Privilege Against Compelled Self-Incrimination–Miranda: Public Safety Exception

Answer 131

If POLICE INTERROGATION is reasonably prompted by CONCERN FOR PUBLIC SAFETY, responses to the questions may be used in court, even though the suspect is in custody and Miranda warnings are not given. (suspect handcuffed and asked where he had hidden his gun)

Question 132

Crimpro: Pretrial Identification: Substantial Bases for Attack

Answer 132

SIXTH AMENDMENT RIGHT TO COUNSEL
When Right Exists: at any POST-CHARGE LINEUP OR SHOWUP (one to one)

Role of Counsel at Lineup: so lawyer can observe any suggestive aspects of the lineup and bring them out on cross-examination of the witness. No right to have the lawyer set up the lineup, demand changes in the way it is conducted, etc.

Photo Identification: NO RIGHT to counsel, but may have due process claim.

Physical Evidence: NO RIGHT to counsel when police take physical evidence such as handwriting exemplars or fingerprints.

DUE PROCESS STANDARD
A defendant can attack an identification as denying due process when the identification is (1) UNNECESSARILY SUGGESTIVE AND (2) there is a SUBSTANTIAL LIKELIHOOD OF MISIDENTIFICATION.

NOTE: no right to a lineup and no self-incrimination issue.

Question 133

Crimpro: Pretrial Identification: The Remedy

Answer 133

The remedy for an unconstitutional identification is EXCLUSION of the in-court indentification (unless it has an independent source).

1. Independent Source: a witness may make an in-court identification if the in-court identification has an independent source. The factors a court will weigh in determining an independent source include the opportunity to observe the defendant at the time of the crime, the ease with which the witness can identify the defendant, and the existence or absence of prior misidentifications.
2. Hearing: the admissibility of identification evidence should be determined at a suppression hearing in the absence of the jury, but exclusion of the jury is not constitutionally required. The government bears the burden of proof s the the presence of counsel or a waiver by the accused, or as to an independent source for the in-court identification, while the defendant must prove an alleged due process violation.

Question 134

Crimpro: Pretrial Procedures: Preliminary Hearing to Determine Probable Cause to Detain (Gerstein Hearing)

Answer 134

A defendant has a 4th Amendment right to be released from detention if there is no probable cause to hold him. Thus, a defendant has a right to a determination of probable cause. A preliminary hearing is a hearing held after arrest but before trial to determine whether probable cause for detention exists. The hearing is an informal, ex parte, nonadversarial proceeding.

WHEN RIGHT APPLIES
If probable cause has already been determined (grand jury indictment or an arrest warrant), a preliminary hearing need not be held. If no probable cause determination has been made, a defendant has a right to a preliminary hearing to determine probable cause if SIGNIFICANT PRETRIAL CONSTRAINTS ON DEFENDANT’S LIBERTY exist. Thus, the right applies if the defendant is release only upon the posting of bail or if he is held in jail in lieu of bail. It does not apply if the defendant is released merely upon the condition that he appear for trial.

TIMING
The hearing must be held within a reasonable time, and the Court has determined that 48 hours is presumptively reasonable.

REMEDY
There is NO REAL REMEDY for the defendant for the denial of a hearing, because unlawful detention, without more, has no effect on the subsequent prosecution. However, if evidence is discovered as a result of the unlawful detention, it will be suppressed under the exclusionary rule.

Question 135

Crimpro: Pretrial Procedures: Pretrial Detention

Answer 135

1. Initial Appearance: soon after the defendant is arrested, she must be brought before a magistrate who will advise her of her rights, set bail, and appoint counsel if necessary. The initial appearance may be combined with the Gerstein hearing right, but will be held whether or not a Gerstein hearing is necessary. For misdemeanors, this appearance will be trial.
2. Bail
   Most state statutes create a right to be released on appropriate bail (either on personal recognizance or on a cash bond).

• -Due Process Concern: because denial of bail deprives a person of liberty, such denials must comply with due process.
• -Substantive due process: Denial of bail does not violate substantive due process by imposing punishment before a defendant is found guilty because the denial of bail is not punishment but a regulatory solution to the problem of persons committing crimes while out on bail.
• -Procedural due process: denial of bail does not violate procedural due process because it provides detainees with a right to a hearing on the issue, expedited review, etc.

Right to be free from excessive bail: state constitutions and state statutes prohibit (probably 8th amendment too). Traditionally interpreted that bail be set no higher than necessary to ensure the defendant’s appearance at trial.

Bail Issues are Immediately appealable :in most jurisdictions and under federal law. If not immediately appealable, the denial of bail can be reached by an immediate petition for a writ of habeas corpus. Once convicted, appeal about bail is moot.

Defendant incompetent to stand trial: standards for commitment and subsequent release must be essentially identical with those for the commitment of persons not charged with crime; otherwise a denial of equal protection.

3. Pretrial Detention Practices that are reasonably related to maintaining jail security do not violate due process or 4th Amendment and without more, do not constitute punishment.

Question 136

Crimpro: Pretrial Procedures: Grand Juries

Answer 136

CHARGING GRAND JURIES
Most states east of the Mississippi and the Federal system use the grand jury as a regular part of the charging process. The charging grand jury DETERMINES PROBABLE CAUSE TO PROSECUTE by returning the bill of indictment submitted by the prosecutor as a “true bill.” Western states generally charge by filing an information, a written accusation of crime prepared and presented by the prosecutor. Informations also are used when the defendant waives her right to grand jury indictment.

SPECIAL OR INVESTIGATIVE GRAND JURIES
Investigates crime in the particular jurisdiction and can initiate a criminal case by bringing an indictment.

Question 137

Crimpro: Pretrial Procedures: Speedy Trial

Answer 137

6th Amendment requirement of speedy Trial is in the interest of the defendant and society.

A determination of whether the defendant’s right to a speedy trial has been violated will be made by an evaluation of the totality of the circumstances. Following factors should be evaluated:

• -length of delay
• -reason for delay
• -whether defendant asserted his right
• -prejudice to defendant

Delays caused by assigned counsel should be attributed to the defendant and not the court.

REMEDY: dismissal with prejudice

WHEN RIGHT ATTACHES: when defendant has been arrested or charged. (period between dismissal of charges and refiling doesn’t count)

Defendant’s Knowledge of Charges Unnecessary

Special Problems

(i) Detainees: a defendant who is incarcerated in one jurisdiction but has charges pending in another jurisdiction has a right to have the second jurisdiction exert reasonable efforts to obtain his presence for trial of these pending charges.
(ii) Indefinite Suspension of Charges: violation of the right to a speedy trial to permit the prosecution to indefinitely suspend charges, such as permitting the government to dismiss “without prejudice” which permits reinstatement of the prosecution AT ANY TIME. (indefinitely suspending the statute of limitations)

Question 138

Crimpro: Pretrial Procedures: Competency to Stand Trial

Answer 138

1. Competency and Insanity Distinguished
   Both based on abnormality of defendant, but competency is based on mental condition at the time of trial and insanity defense is based on mental condition at the time of the offense. Incompetency is not a defense, but rather is a bar to trial until the person gains competency. A defendant who is competent to stand trial is competent to plead guilty.
2. Due Process Standard
   Prohibits the trial of an incompetent person. A person is incompetent to stand trial under the due process standard if, because of her present mental condition, she either :
   (i) lacks a rational as well as a factual UNDERSTANDING OF THE CHARGES AND PROCEEDINGS, or
   (ii) lacks sufficient present ABILITY TO CONSULT WITH HER LAWYER with a reasonable degree of understanding.

FORCED CURE: government may involuntarily administer antipsychotic drugs to a mentally ill defendant facing serious criminal charges in order to make him competent to stand trial if:

(i) the treatment is medically appropriate
(ii) the treatment is substantially unlike to cause side effects that may undermine the fairness of the trial, and
(iii) considering less-intrusive alternatives, the treatment is necessary yto further important governmental trial related interests.

3. Trial Judge’s Duty to Raise Competency Standard
   If evidence of defendant’s incompetency appears to the trial judge, the judge has a constitutional obligation to conduct further inquiry and determine whether in fact the defendant is incompetent. Judge’s failure to raise the issue does not constitute a waiver.
4. Burden Can be Place on Defendant: to prove that he is not competent to stand trial by a preponderance of the evidence; this does not violate due process. However, requiring clear and convincing evidence violates due process.
5. Detention of Defendant
   - -based on incompetency: may be detained in a mental hospital for a brief period of time, but cannot be hospitalized indefinitely or for a long period of time simply because found incompetent. This can be done only if independent “civil commitment” proceedings has begun and result in her commitment.

–based on insanity: can be confined to mental hospital indefinitely without a civil commitment hearing even at the expiration of the maximum sentence. However, a defendant acquitted by reason of insanity who is determined to have recovered sanity cannot be indefinitely committed in a mental facility merely because he is unable to prove himself dangerous to others.

Question 139

Crimpro: Trial: Basic Right to a Fair Trial

Answer 139

1. Right to Public Trial: guaranteed by the 6th and 14th Amendments

Preliminary Probable Cause Hearing: presumptively open to the public and the press.

Suppression Hearings: may not be closed to the public unless:

(i) the party seeking closure show an overriding interest likely to be prejudiced by a public hearing;
(ii) the closure is no broader than necessary to protect such an interest;
(iii) reasonable alternatives to closure have been considered, and
(iv) adequate findings to support closure are entered by the trial court

Voire Dire of Prospective Jurors: right to public trial extends to voir dire

Trial: press and public have right to attend the trial even if the defense and prosecution agree to close it. Televising permissible over the defendant’s objections.

2. Right to An Unbiased Judge: no actual malice or financial interest
3. Must Judge Be a Lawyer?
   no in a minor misdemeanor prosecution
   yes in a serious crime case
4. Right to Be Free of Trial Disruption
   example: in some cases television broadcasting would disrupt the trial and violate due process if the trial is notorious enough
5. Trial in Prison Clothing: unconstitutional for the state to COMPEL the defendant to stand trial in prison clothing. If the defendant does not wish to be tried in prison clothing, he must make a timely objection. Similar with regard to visible shackles unless their use is justified by concerns about courtroom security or risk of escape.
6. Right to Have Jury Free from Unfair Influencers: if the jury is exposed to influences favorable to the prosecution, due process is violated.
7. No Right to Preservation of Potentially Exculpatory Evidence: but due process violated if the police in BAD FAITH destroy evidence

Question 140

Crimpro: Trial: Right to Trial by Jury

Answer 140

Sixth Amendment right to trial by jury applies to the states. But states get great latitude in the details of the jury use and conduct because of

(i) the view that many of the details of the jury were historical accidents,
(ii) the belief that the jury will act rationally, and
(iii) the cost.

Question 141

Crimpro: Trial: Counsel: generally

Answer 141

A defendant has a right to counsel under the 5th and 6th Amendments.

1. Remedy When Right to Counsel Violated: automatic reversal of conviction, even without any showing of unfairness in the proceedings
2. Waiver of Right to Counsel at Trial and Right to Defend Oneself
3. Indigence and Recoupment of Cost: state may require repayment later when person able to pay
4. Right to Support Services for Defense: psychiatrist for insanity defense or where state trying to show defendant will be dangerous in the future
5. Seizure of Funds Constitutional: if drug money and were going to be used to pay the lawyer
6. Right to Counsel Limited While Testifying

Question 142

Crimpro: Trial: Right to Confront Witnesses

Answer 142

The Sixth Amendment grants to defendants in a criminal prosecution, the right to confront adverse witnesses. This right, held applicable to the states, seeks to ensure that:

1. The fact finder and the defendant OBSERVE THE DEMEANOR of the testifying witness; and
2. The defendant has the opportunity to CROSS EXAMINE any witness testifying against him.

The defendant is entitled to a face to face encounter with the witness, but absence of face to face confrontation between the defendant and the accuser does not violate the Sixth Amendment when preventing such a confrontation serves an important public purpose (such as insulating a child witness from trauma) and the reliability of the witness’s testimony is otherwise assured.

1. Right Not Absolute
   - -disruptive defendant
   - -voluntarily leaving the courtroom
   - -government may discourage attendance
2. Introduction of Co-Defendant’s Confession
   A right of confrontation problem develops with the introduction of a co-defendant’s confession because of the inability of the nonconfessing defendant to compel the confessing co-defendant to take the stand for cross-examination at their joint trial.

General Rule–Confession Implicating Co-Defendant Prohibited: where tried together

Exceptions:

• -all portions referring to the other defendant can be eliminated
• -confessing defendant takes the stand and subjects himself to cross-examination with respect to the truth or falsity of what the statement asserts
• -confession of nontestifying cod-defendant is being used to rebut the defendant’s claim that his confession was obtained coercively. Jury must be instructed as to the purpose of the admission.

3. Prior Testimonial Statement Unavailable Witness
   Under the Confrontation Clause, prior testimonial evidence may NOT be admitted unless:
   (i) the declarant is UNAVAILABLE; and
   (ii) the defendant had an OPPORTUNITY TO CROSS EXAMINE the declarant at the time the statement was made

TESTIMONIAL: at a minimum the term includes testimony from a preliminary hearing, grand jury hearing, former trial, or police interrogation.

Police Interrogation:

• -nontestimonial when the primary purpose for the police interrogation is to enable the police to respond to an ongoing emergency
• -testimonial when there is no ongoing emergency and the primary purpose of the interrogation is to establish or prove past acts

Results of Forensic Lab Testing: are testimonial in nature, therefore a lab report is not admissible into evidence at trial under the Confrontation Clause unless the technician who produced the test report is unavailable and the defendant had an opportunity to cross-examine him.

Forfeiture by wrongdoing: if the wrongdoing was intended to keep the witness from testifying

Question 143

Crimpro: Guilty Pleas and Plea Bargaining: Basic Trends

Answer 143

1. Intelligent Choice Among Alternatives: courts unwilling to disturb a guilty plea if it is this
2. Contract View
   negotiating and bargaining: record should show agreement and terms of the agreement

Question 144

Crimpro: Guilty Pleas and Plea Bargaining: Taking the Plea

Answer 144

1. Advising Defendant of the Charge, the Potential Penalty, and His Rights
   The judge must determine that the plea is VOLUNTARY AND INTELLIGENT. This must be done by addressing the defendant personally in open court ON THE RECORD. Specifically, the judge must be sure that the defendant knows and understands things like:

–nature of the charge, including the crucial elements of the crime charged

–the maximum possible penalty and any mandatory minimum (but failure to explain the special parole terms is not fatal)

–that he has a RIGHT NOT TO PLEAD GUILTY and that, if he does, he WAIVES THE RIGHT TO TRIAL.

Attorney may inform defendant–record must show this.

Unfairly informed defendant not bound.

2. Remedy: withdrawal of the plea
3. No Constitutional requirement that record contain Factual Basis for Plea

Question 145

Crimpro: Guilty Pleas and Plea Bargaining: Collateral Attacks on Guilty Pleas After Sentence

Answer 145

Those pleas that are seen as an intelligent choice among the defendant’s alternatives are immune from collateral attack.

1. Plea Offered by Defendant Who Denies Guilt: seen as an intelligent choice by the defendant and withdrawal of the plea will not be permitted when there is strong evidence of guilt in the record. Admission of guilt is not a constitutional requisite to imposition of criminal penalty.
2. Bases for an Attack on a Guilty Plea After Sentence
   - -Plea Involuntary
   - -Lack of Jurisdiction
   - -Ineffective Assistance of Counsel
   - -Failure to Keep the Plea Bargain

Question 146

Crimpro: Guilty Pleas and Plea Bargaining: Plea Bargaining

Answer 146

1. Enforcement of the Bargain
   A defendant who enters into a plea bargain has a right to have the bargain kept. the plea will be enforced against the prosecutor and the defendant but not against the judge who does not have to accept the plea.
2. Power of the State to Threaten More Serious Charge: does not make pleas involuntary
3. Power to Charge more Serious Offense: no vindictiveness where prosecutor charges more serious offense when defendant demands a jury trial
4. Admission of Statements Made in Connection with Plea Bargaining: inadmissible UNLESS knowingly and voluntarily waive the federal rules exclusionary provisions
5. No Right to Impeachment or Affirmative Defense Evidence prior to entering plea

Question 147

Crimpro: Constitutional Rights in Relation to Sentencing and Punishment: Procedural Rights in Sentencing

Answer 147

RIGHT TO COUNSEL: sentencing is usually a “critical stage” of a criminal proceeding, thus requiring the assistance of counsel, as substantial rights of the defendant may be affected

RIGHT TO CONFRONTATION AND CROSS-EXAMINATION: the USUAL sentence may be based on hearsay and uncross-examined reports.

New Proceeding: where a magnified sentence is based on a statute that requires new findings of fact to be made, those facts must be found in a context that grants the right to confrontation and cross-examination.

Capital Sentence Procedures: it is clear that a defendant in a death penalty case must have more opportunity for confrontation than need be given a defendant in other sentencing proceedings.

Question 148

Crimpro: Constitutional Rights in Relation to Sentencing and Punishment: Resentencing After Successful Appeal and Reconviction

Answer 148

GENERAL RULE–RECORD MUST SHOW REASONS FOR HARSHER SENTENCE
Purpose of this requirement is to make sure defendant is not vindictively penalized for exercising his rights to appeal. PEARCE

EXCEPTIONS
Reconviction upon trial de novo: some jurisdictions grant trial de novo and the requirement of a record for harsher sentence not necessary because new judge likely won’t be vindictive.

Jury Sentencing: Pearce does not apply to states that use jury sentencing, unless the second jury was told of the first jury’s sentence.

RECHARGING IN A TRIAL DE NOVO
The prosecutor may not obtain an indictment for a more serious charge in a trial de novo because of the possibility of prosecutorial vindictiveness and retaliation for exercising the statutory right to a trial de novo.

Question 149

Crimpro: Constitutional Rights in Relation to Sentencing and Punishment: Substantive Rights in Regard to Punishment

Answer 149

1. Criminal Penalties Constituting “Cruel and Unusual Punishment”

Punishment Grossly Disproportionate to Offense is cruel and unusual.

Proportionality–No Right to Comparison of Penalties in Similar Cases

Death Penalty: may be imposed only under a STATUTORY SCHEME that gives the judge or jury reasonable DISCRETION (to consider mitigating circumstances), full INFORMATION concerning defendants, and GUIDANCE (no vague statutes) in making the decision.

2. Recidivist Statutes: mandatory life NOT cruel and unusual
3. Consideration of Defendant’s Perjury at Trial: can be taken into effect and is important for inquiring into defendant’s chances of rehabilitation.
4. Imprisonment of Indigents for Nonpayment of Fines Violates Equal Protection Clause

Question 150

Crimpro: Constitutional Problems on Appeal: Equal Protection and Right to Counsel on Appeal

Answer 150

1. First Appeal
   Conditions that make the appeal less accessible to the poor than to the rich violate equal protection.

Right to Counsel
Attorney May Withdraw if Appeal Frivolous

2. Discretionary Appeals
   No right to counsel being provided for indigents.

Question 151

Crimpro: Rights During Punishment–Probation, Imprisonment, Parole: Right to Counsel at Parole and Probation Revocations

Answer 151

Probation Revocation Involving Resentencing: is entitled

Other Situations: right to counsel much more limited
There is a right to represented by counsel only if, on the facts of the case, such reprensentation is NECESSARY TO A FAIR HEARING. Generally necessary only if defendant denies commission of the acts alleged or asserts a complex argument. Also, each defendant must be told of their right to counsel and the record must indicate their reason for refusal.

Question 152

Crimpro: Rights During Punishment–Probation, Imprisonment, Parole: Prisoner’s Rights

Answer 152

1. Due Process Rights: only where regulations and operations impose ATYPICAL AND SIGNIFICANT HARDSHIP in relation to the ordinary incidents of prison life.
2. No Fourth Amendment Protections in Search of Cells: no reasonable expectation of privacy
3. Right of Access to Courts
4. First Amendment Rights
   Prison regulations reasonably related to penological interests will be upheld even though they burden First Amendment rights.
   –incoming: great interest
   –outgoing mail–no interest
5. Right to Adequate Medical Care
   - -deliberate indifference to serious medical needs of prisoners constitutes cruel and unusual punishment in violation of 8th Amendment, as does severe overcrowding that results in inadequate medical care
   - -negligence does not violate 8th

Question 153

Crimpro: Double Jeopardy: When Jeopardy Attaches

Answer 153

The Fifth Amendment right to be free of double jeopardy for the same offense has been incorporated into the 14th. The general rule is that once jeopardy attaches, the defendant may not be retried for the same offense.

1. Jury Trials
   Jeopardy attaches at the EMPANELING AND SWEARING of the jury.
2. Bench Trials
   Jeopardy attaches when the FIRST WITNESS IS SWORN.
3. Juvenile Proceedings
   The COMMENCEMENT of an adjudicatory juvenile proceeding bars a subsequent criminal trial for the same offense.
4. Not in Civil Proceedings
   Jeopardy does not attach in civil proceedings other than juvenile proceedings.

Question 154

Crimpro: Double Jeopardy: Exceptions Permitting Retrial

Answer 154

1. Hung Jury
2. Mistrial for Manifest Necessity
3. Retrial After Successful Appeal: unless ground for reversal was insufficient evidence to support the guilty verdict
   - -charges on retrial cannot be more serious than original trial
   - -may impose more serious sentence, but record must show valid reason
4. Breach of Plea Bargaining

Question 155

Crimpro: Double Jeopardy: Same Offense

Answer 155

1. General Rule–When Two Crimes Do Not Constitute Same Offense

Two crimes do not constitute the same offense if EACH CRIME REQUIRES PROOF OF AN ADDITIONAL ELEMENT that the other crime does not require, even though some of the same facts may be necessary to prove both crimes.

APPLICATION OF BLOCKBURGER
Under Blockburger, the following do NOT constitute the same offenses:
–manslaughter with an automobile and hit and run
–reckless driving and drunk driving
–reckless driving and failure to yield the right of way
–uttering a forged check and obtaining money by false pretenses by using the forged check

2. Cumulative Punishments for Offenses Constituting the Same Crime
   Impositions of cumulative punishments for two or more statutorily defined offenses, SPECIFICALLY INTENDED BY THE LEGISLATURE TO CARRY SEPARATE PUNISHMENTS, even though constituting the “same” crime under the BLOCKBURGER test, does not violate the prohibition of multiple punishments for the same offense of the Double Jeopardy Clause, when the punishments are IMPOSED AT A SINGLE TRIAL.
3. Lesser Included Offenses
   - -retrial for lesser included offense barred
   - -retrial of greater offense barred, except the retrial for murder is permitted if the victim dies after attachment of jeopardy for battery.
   - -a state may continue to prosecute a charged offense, despite the defendant’s guilty plea to lesser included or allied offenses stemming from the same incident.
4. Conspiracy and Substantive Offense: no violation of double jeopardy for prosecution of conspiracy if some of the alleged OVERT ACTS of that conspiracy have already been prosecuted.
5. Prior Act Evidence: no equivalent to prosecution of that act, so no double jeopardy
6. Conduct Used as a Sentence Enhancer: does not violate double jeopardy
7. Civil Actions: double jeopardy prevents only repetitive criminal prosecutions

Question 156

Crimpro: Double Jeopardy: Appeals by Prosecution

Answer 156

Prosecution may appeal any dismissal on the defendant’s motion not constituting an acquittal on the merits.

Also, prosecution may appeal if a successful appeal would not require a retrial, such as when the trial judge granted a motion to set aside the jury verdict

Appeal of sentence: ok if pursuant to a congressionally enacted statute permitting such review

Question 157

Crimpro: Double Jeopardy: Issue Preclusion (Collateral Estoppel)

Answer 157

The notion of collateral estoppel is embodied in the guarantee against double jeopardy. A defendant may not be tried or convicted of a crime if a prior prosecution by that sovereign resulted in a FACTUAL DETERMINATION INCONSISTENT WITH ONE REQUIRED FOR CONVICTION.

But doctrine has limited utility because of general verdict in criminal trials.

Inconsistent verdicts: if a defendant has been charged with multiple counts and there is an inconsistency in the verdicts among the counts, the focus should be on what was decided rather than on what was not decided. That is, the issues necessarily decided in the acquittal will have preclusive effect even if the same issues were involved in the counts on which the jury deadlocked.

Question 158

Crimpro: Privilege Against Compelled Self Incrimination: When Privilege May be Asserted

Answer 158

1. Proceedings Where Potentially Incriminating Testimony Sought
2. Privilege Not a Defense to Civil Records Requirements
   - -limitation–criminal law enforcement purposes
3. Privilege Not Applicable to Identification Request After Terry Stop

Question 159

Crimpro: Privilege Against Compelled Self Incrimination: Method for Invoking the Privilege

Answer 159

1. Privilege of a Defendant: has right not to take the witness stand at trial and not to be asked to do so. It is impermissible to call the jury’s attention to the jury’s attention to the fact that he has chosen not to testify
2. Privilege of a Witness: does not permit a person to avoid being sworn in; must listen to the questions and specifically invoke the privilege rather than answer the question

Question 160

Crimpro: Privilege Against Compelled Self Incrimination: Scope of Protection

Answer 160

1. Testimonial but Not Physical Evidence
2. Compulsory Production of Documents
3. Seizure and Use of Incriminating Documents
4. When Does Violation Occur?–a violation of the self-incrimination clause does not occur until a person’s compelled statements are used against him in a criminal case

Question 161

Crimpro: Privilege Against Compelled Self Incrimination: Prohibition Against Burdens on Assertion of the Privilege

Answer 161

1. Comments on Defendant’s Silence: no allowed
   except for impeachment of a claim that the defendant was not allowed to explain his side of the story

Harmless error test applies–overwhelming evidence against the defendant anyway.

2. Penalties for Failure to Testify Prohibited

Question 162

Crimpro: Privilege Against Compelled Self Incrimination: Elimination of the Privilege

Answer 162

1. Grant of Immunity
   - -use and derivative use immunity is sufficient to extinguish the privilege (may still be prosecuted for independent source)
   - -testimony obtained by a promise of immunity is by definition coerced and involuntary–so may not be used for impeachment
   - -use by another sovereign impermissible
2. No Possibility of Incrimination: no privilege if statute of limitations has run
3. Scope of Immunity: extends only to the offenses to which the question relates and does not protect against perjury committed during the immunized testimony

Question 163

Crimpro: Privilege Against Compelled Self Incrimination: Waiver of Privilege

Answer 163

1. Waiver by Criminal Defendant: by taking the witness stand
2. Waiver by Witness: only if she discloses incriminating information. Once such disclosure has been made, she can be compelled to disclose any additional information as long as further disclosure does not increase the risk of conviction or create a risk of conviction on a different offense

Question 164

Evidence: General Considerations: Threshold Admissibility Issues

Answer 164

A shorthand summary of evidence law might be stated in one sentence:
MATERIAL and RELEVANT evidence is admissible if COMPETENT.

Materiality exists when the proffered evidence relates to one of the substantive legal issues in the case. The key questions to ask regarding materiality are: What issue is the evidence offered to prove? Is that legal issue material to the subtantive cause of action or defense in the case?

Relevance: Probativeness–The Link Between Proof and Proposition
Probative evidence CONTRIBUTES TO PROVING OR DISPROVING a material issue. Does the evidence tend to make the material proposition (issue) more probably true or untrue than it would be without the evidence?

Federal Rules–Materiality and Probativeness Combined in a single requirement of relevance.

Question 165

Evidence: General Considerations: Evidence Classifications

Answer 165

Direct Evidence: relies on actual knowledge by means of one’s senses

Circumstantial Evidence: relies on inference of the existence of a material fact from other facts

Testimonial Evidence: oral evidence given under oath

Documentary Evidence: in the form of a writing

Real Evidence: consists of things

Question 166

Evidence: General Considerations: Limited Admissibility

Answer 166

Evidence may be:

1. Admissible for One Purpose but Not Another
2. Admissible Against One Party but Not Another

When this happens the Jury Must be Properly Instructed. If the court determines that even with instruction, the probativeness is substantiall outweighed by danger of unfair prejudice with respect to its incompetent purpose, the evidence may still be excluded.

Question 167

Evidence: Relevance: Determining Relevance

Answer 167

Relevant evidence is any evidence having a tendency to make the existence of any fact that is of consequence to the determination of an action more probable than it would be without the evidence.

1. General Rule–Must Relate to Time, Event, or Person in Controversy
2. Exceptions–Certain Similar Occurrences Are Relevant

Question 168

Evidence: Judicial Notice: Judicial Notice of Law–Mandatory or Permissive

Answer 168

The judge’s task of finding applicable law is accomplished by informal investigation of legal source materials. This process, unmentioned in the FRE has been traditionally described in terms of the judge taking judicial notice of the law applicable to the case.

Classification of Mandatory or Permissive Judicial notice of Law Depends on Accessibility of Source Materials

Mandatory Judicial Notice

• -Federal public law (Constitution, statutes, treaties, public acts of Congress, and federal case law)
• -State public law (constitution, public statutes, and common law of the state)
• -Official regulations (rules and regulations of federal government and forum state)

Permissive Judicial Notice

• -municipal ordinances and private acts or resolutions of Congress and of the local state legislature
• -laws of foreign countries

Question 169

Evidence: Real Evidence: In general

Answer 169

Addressed Directly to Trier of Fact
Object in issue is presented for INSPECTION BY THE TRIER OF FACT.

Special Problems

• -proper authentication
• -too burdensome
• -prejudicial emotions

Question 170

Evidence: Real Evidence: Types of Real Evidence

Answer 170

1. Direct
2. Circumstantial
3. Original
4. Prepared

Question 171

Evidence: Real Evidence: General Conditions of Admissibility

Answer 171

Real evidence must be RELEVANT to the proposition in issue. The admissibility of real proof also depends on additional legal requirements.

AUTHENTICATION
The object must first be identified as being what the proponent claims it to be. Real evidence is often authenticated by:
1. Recognition Testimony
2. Chain of Custody

CONDITION OF OBJECT; USEFUL PROBATIVENESS
If the condition of the object is significant, it must be shown to be in substantially the SAME CONDITION AT THE TRIAL. Object must be logically helpful in tending to prove the proposition in issue.

LEGAL RELEVANCE
Assuming the object has been properly identified and is probative, the discretion of the trial judge is called upon to decide whether some auxiliary policy or principle outweighs the need to admit the real evidence. Such policies limiting the use of real evidence frequently concern:

1. Physical inconvenience of bringing the object into the courtroom;
2. Indecency or impropriety;
3. Undue prejudice where the probative value of the object or exhibit is outweighed by the danger of unfair prejudice.

Question 172

Evidence: Real Evidence: Particular Types of Real Proof (6)

Answer 172

1. Reproductions (admissible) and Explanatory (usually not admitted) Real Evidence
2. Maps, Charts, Models, Etc.
   Must be authenticated by testimonial evidence showing they are FAITHFUL REPRODUCTIONS of the object or thing depicted.
3. Exhibition of Child in Paternity Suits
4. Exhibition of Injuries
5. Jury View of the Scene
6. Demonstration
   - -demonstrations showing effect of bodily injury are usually excluded where the exhibition would reveal hideous wounds, elicit cries of pain, or otherwise unduly dramatize the injury and inflame the minds of the jurors
   - -demonstrations under the sole control of witnesses are excluded because not subject to cross examination
   - -scientific experiments if substantially similar conditions and would not result in undue waste of time or confusion of the issues

Question 173

Evidence: Documentary Evidence: Authentication

Answer 173

Before a writing or any secondary evidence of its content may be received in evidence, the writing must be authenticated by proof showing that the writing is what proponent claims it is. The writing is usually not self authenticating. It needs a testimonial sponsor or shepherding angel to prove that the writing was made, signed, or adopted by the particular relevant person.

1. Quantum of Proof: sufficient to support a jury finding of genuineness
2. Authentication by Pleadings or Stipulation
   - -even by failing to deny an allegation in a pleading
3. Evidence of Authenticity
4. Compare–Authentication of Oral Statements
5. Self-Authenticating Documents

Question 174

Evidence: Documentary Evidence: Best Evidence Rule

Answer 174

The best evidence rule is more accurately called the ORIGINAL DOCUMENT RULE. It may be stated as follows:
In proving the terms of a writing (recording, photograph, or x-ray), where the terms are material, the original writing must be produced.

Secondary evidence of the writing, such as oral testimony regarding the writing’s contents, is permitted only after it has been shown that the original is unavailable for some reason other than the serious misconduct of the proponent.

Applicability of the Rule
For the most part, the rule applies to two classes of situations:
(i) where the writing is a LEGALLY OPERATIVE OR DISPOSITIVE INSTRUMENT such as a contract, deed, will, or divorce decree; or
(ii) where the knowledge of a witness concerning a fact results from having READ it in the document.

Question 175

Evidence: Documentary Evidence: Parol Evidence Rule

Answer 175

The essence of the parol evidence rule is as follows:

If an agreement is reduced to writing with the intent that it embody the full and final expression of the bargain, the writing is the agreement and hence constitutes the only evidence of it. All PRIOR OR CONTEMPORANEOUS NEGOTIATIONS or agreements ARE MERGED into the written agreement. Parol (extrinsic) evidence is not admissbile to add to, detract from, or alter the agreement as written.

1. Substantive and Evidentiary Aspects
   Although part of substantive law of contracts, impact evidence law because of its IMPACT ON MATERIALITY. Prior and contemporary oral agreements are not material when offered to vary the terms of an apparently complete written contract.

Subsequent Modifications of Written Contract: parol evidence is admissible to show subsequent modification or discharge of the written contract.

Question 176

Evidence: Hearsay Rule: Statements that are Nonhearsay Under the Federal Rules (2)

Answer 176

1. Prior Statements by Witness

2. Admission of Party Opponent

Question 177

Evidence: Hearsay Rule: Hearsay Exeptions–Declarant’s Availability Immaterial (12)

Answer 177

1. Present State of Mind
2. Excited Utterances
3. Present Sense Impressions
4. Declarations of Physical Condition
5. Business Records
6. Past Recollection Recorded
7. Official Records and Other Official Writings
8. Ancient Documents and Documents Affecting Property Interests
9. Learned Treatises
10. Reputation
11. Family Records
12. Market Records

Question 178

Evidence: Hearsay Rule: Residual Catch-all Exception of Federal Rules

Answer 178

The Federal Rules provide a general catch-all exception for hearsay statements not covered by specific exceptions. There are three requirements for a statement to be admitted under the catch-all exceptions.

1. “Trustworthiness” Factor
   circumstantial guarantees of trustworthiness
2. “Necessity” Factor
   must be offered on a material fact and must be more probative than prejudicial so that interests of justice will be served
3. Notice to Adversary: in advance of trial

Question 179

Evidence: Procedural Considerations: Burdens of Proof

Answer 179

1. Burdens of Producing or Going Forward With Evidence
2. Burden of Persuasion (depends on standard–preponderance of evidence; clear and convincing; beyond a reasonable doubt)

Question 180

Evidence: Procedural Considerations: Presumptions: defined and effect

Answer 180

A presumption is a rule that requires that a particular inference be drawn from an ascertained set of facts. It is a form of substitute proof or evidentiary shortcut, in that proof of the presumed fact is rendered unnecessary once evidence has been introduced of the basic fact that gives rise to the presumption

EFFECT–SHIFT BURDEN OF PRODUCTION
Federal Rule 301 provides that a presumption imposes on the party against whom it is directed, the burden of going forward with evidence to rebut or meet the presumption. However, absent a provision otherwise, a presumption generally doesn’t shift to such a party the burden of proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast.

Question 181

Real Property: Estates In Land: Present Possessory Estates:general definition and list

Answer 181

“Estates in land” are POSSESSORY INTERESTS in land. These interests may be presently possessory or they may become possessory in the future. They may be freeholds, which gives some legal right to hold or they may be nonfreeholds, which gives mere possession.

1. Fee Simple Absolute
2. Defeasible Fees
3. Fee Tail
4. Life Estate
5. Estates for Years, Periodic Estates, Estates at Will, Tenancies at Sufference

Question 182

Real Property: Landlord and Tenant: Landlord Duties and Tenant Remedies (5)

Answer 182

1. Duty to Deliver Possession of Premises
2. Quiet Enjoyment
3. Implied Warranty of Habitability
4. Retaliatiory Eviction
5. Discrimination

Question 183

Real Property: Landlord and Tenant: Condemnation of Leaseholds (2)

Answer 183

1. Entire Leasehold Taken by Eminent Domain–Rent Liability Extinguished (because both the leasehold and the reversion have merged in the condemnor and there is no longer a leasehold estate) Absent a lease provision to the contrary, the lessee is entitled to compensation for the taking of the leasehold estate (i.e., fair market value for the lease).
2. Temporary or Partial Taking–Tenant Not Discharged from Rent Obligation, but Entitled to Compensation (a share of the condemnation award) for the taking.

Question 184

Real Property: Fixtures: Common Ownership Cases (2)

Answer 184

1. Annexor’s Intent Controls in Common Ownership Cases

2. Effect of Fixture Classification

Question 185

Real Property: Fixtures: Divided Ownership Cases (4)

Answer 185

1. Landlord-Tenant
2. Life Tenant and Remainderman
3. Licensee and Landowner
4. Trespasser and Landowner

Question 186

Real Property: Rights in the Land of Another–Easements, Profits, Covenants, and Servitudes: Introduction to Easements

Answer 186

The holder of an easement has the RIGHT TO USE a tract of land (called the servient tenement) for a special purpose, but has NO RIGHT TO POSSESS AND ENJOY the tract of land. The owner of the servient tenement continues to have the right to full possession and enjoyment subject only to the limitation that he cannot interfere with the right of special use created in the easement holder. Typically, easements are created in order to give their holder the right of access across a tract of land, e.g., the privilege of laying utility lines, or installing sewer pipes and the like. Easements are either affirmative or negative, appurtenant or gross.

Question 187

Real Property: Rights in the Land of Another–Easements, Profits, Covenants, and Servitudes: Profits (6)

Answer 187

1. Defined: A nonpossessory interest in land in which the holder is entitled to enter upon the servient tenement and take the soil or a substance of the soil (minerals, timber, oil or game). There is a constructional preference for profits in gross rather than profits appurtenant.
2. Creation (created in same way as easements)
3. Alienability (Profit appurtenant follows the ownership of the dominant tenement. A profit in gross may be assigned or transferred by a holder.)
4. Exclusive (even to the owner of the land) and Nonexclusive Profits (can grant to others) Distinguished
5. Scope (determined by the words of the EXPRESS GRANT if there was a grant or BY THE NATURE OF THE USE if acquired by prescription.)
6. Termination (in the same way as easements)AND (misuse of the profit will be held to surcharge the servient estate and will extinguish the profit)

Question 188

Real Property: Rights in the Land of Another–Easements, Profits, Covenants, and Servitudes: Equitable Servitudes

Answer 188

1. Creation
2. Enforcement
3. Equitable Defenses to Enforcement
4. Termination

Question 189

Real Property: Adverse Possession: Requirements (6)

Answer 189

1. Running of Statute
2. Actual and Exclusive Possession
3. Open and Notorious Possession
4. Hostile
5. Continuous Possession
6. Payment of Property Taxes Generally Not Required

Question 190

Real Property: Adverse Possession: Disability (3)

Answer 190

1. Effect of Disabilities (Statute does not begin to run if the true owner was under some kind of disability to sue WHEN THE CAUSE OF ACTION FIRST ACCRUED (i.e, the inception of the adverse possession).
2. No Tacking of Disabilities
3. Maximum Tolling Periods (in some states 20 years–so maximum period would be 20 years plus statute of limitation period)

Question 191

Real Property: Adverse Possession: Adverse Possession and Future Interests (Overall rule plus 2)

Answer 191

Statute of limitations does not run against the holder of a future interest until that interest becomes possessory. Until the prior present estate terminates, the holder of a future interest has no right to possession, and no cause of action against a wrongful possessor.

1. Possibility of Reverter–Statute of Limitations Runs on Happening of Event because the fee simple determinable automatically comes to an end. (in other words, the grantor may lose the property to the possessor if doesn’t bring an ejectment action)
2. Right of Entry–Happening of Event Does Not Trigger Statute of Limitations because fee simple not terminated until grantor ejects (but grantor should be careful of a defense of laches)

Question 192

Real Property: Conveyancing: Land Sale Contracts:

Answer 192

1. Statue of Frauds Applicable
2. Doctrine of Equitable Conversion
3. Marketable Title
4. Time of Performance
5. Tender of Performance
6. Remedies for Breach of the Sale Contract
7. Seller’s Liability for Defects on Property
8. Real Estate Brokers
9. Title Insurance

Question 193

Real Property: Conveyancing: Deeds–Form and Contract (3)

Answer 193

1. Formalities
2. Defective Deeds and Fraudulent Conveyances
3. Description of Land Conveyed

Question 194

Real Property: Conveyancing: Delivery and Acceptance (5)

Answer 194

1. Delivery–In General
2. Retention of Interest by Grantor or Conditional Delivery
3. Where Grantor Gives Deed to Third Party
4. Acceptance
5. Dedication

Question 195

Real Property: Conveyancing: Covenants for Title in Statutory Special Warranty Deed and Quitclaim Deed

Answer 195

Statutory Special Warranty Deed: Use of the word grant in a conveyance creates by implication, assurances against acts of the grantor: (1) grantor has not conveyed the same estate; (2) free from encumbrances made by the grantor.

Quitclaim Deeds: a release of whatever interest, if any, the grantor has in the property.

Question 196

Real Property: Conveyancing: Recording (5)

Answer 196

1. Recording Acts–In General
2. Types of Recording Acts
3. Who Is Protected by Recording Acts
4. Title Search
5. Effect of Recordation

Question 197

Real Property: Conveyancing: Conveyance by Will (4)

Answer 197

1. Ademption
2. Exoneration
3. Lapse and Anti-lapse Statutes
4. Abatement

Question 198

Real Property: Conveyancing: Crops (Emblements) (3)

Answer 198

1. Conveyance of Land Includes Crops (unless contrary intent is shown)
2. Exception–Harvested Crops
3. Exception–Crops Planted by Tenant

Question 199

Real Property: Security Interests in Real Estate: Types of Security Interests (5)

Answer 199

1. Mortgage
2. Deed of Trust
3. Installment Land Contract
4. Absolute Deed–Equitable Mortgage
5. Sale-Leaseback

Question 200

Real Property: Security Interests in Real Estate: Transfers by Mortgagee and Mortgagor

Answer 200

1. Transfer by Mortgagee

2. Transfer by Mortgagor–Grantee Takes Subject To Mortgage

Question 201

Real Property: Security Interests in Real Estate: Defenses to the Underlying Obligation of the Mortgage

Answer 201

Because a mortgage is granted to secure an obligation, if the obligation is unenforceable, so is the mortgage. Therefore, defenses in an action on the underlying obligation are defenses against an action on the mortgage, including: (i) failure of consideration, (ii) duress, (iii) mistake, (iv) fraud.

Question 202

Real Property: Security Interests in Real Estate: Possession Before Foreclosure (4)

Answer 202

1. Theories Title–the mortgagee may have a right to take possession before foreclosure, depending on the theory the state follows.
2. Mortgagor Consent and Abandonment –mortgagee can take possession
3. Risks of Mortgagee in Possession (duty to account for rents, manage the property, and tort liability is why most mortgagee don’t take possession)
4. Receiverships – Courts will appoint receiver to manage the property upon showing of some combination of 3 factors: (i) waste; (ii) value of property inadequate to secure the debt; (iii) mortgagor is insolvent.

Question 203

Real Property: Security Interests in Real Estate: Foreclosure

Answer 203

Process by which the mortgagor’s interest in the property is terminated. The property is generally sold to satisfy the debt in whole or in part (foreclosure by sale). Almost all states require foreclosure by sale. All states allow judicial sale, while about half also allow power of sale. The nonjudicial sale is often permitted with deeds of trust but not with mortgages. Foreclosure sales are conducted by auction, with the highest bidder taking the property. The lender may bid at the sale and in some cases, the lender is the sole bidder.

Question 204

Real Property: Security Interests in Real Estate: Installment Land Contracts (5)

Answer 204

Installment contracts may provide for forfeiture rather than foreclosure as the vendor’s remedy in event of default, but is harsh, so courts have tended to resist forfeiture clauses by developing the following theories:

1. Equity of Redemption: grace period to pay off accelerated full balance of the contract.
2. Restitution: refund excess payments according to fmv
3. Treat as a Mortgage
4. Waiver: if pattern of accepting late payments, then right of forfeiture waived
5. Election of Remedies: must choose forfeiture or damages, but not both

Question 205

Real Property: Rights Incidental to Ownership of Land (Natural Rights): Right to Lateral and Subjacent Support of land (2)

Answer 205

1. Right to Lateral Support

2. Right to subjacent Support

Question 206

Real Property: Rights Incidental to Ownership of Land (Natural Rights): Water Rights (3)

Answer 206

1. Watercourses
2. Groundwater
3. Surface Water

Question 207

Real Property: Rights Incidental to Ownership of Land (Natural Rights): Right to Exclude–Remedies of Possessor (4)

Answer 207

1. Trespass
2. Private Nuisance
3. Continuing Trespass
4. Law or Equity

Question 208

Real Property: Cooperatives, Condominiums, and Zoning: Cooperatives (3)

Answer 208

Residents are tenants of the cooperative by virtue of their occupancy lease and owners of the cooperative by virtue of their stock interest. Stock interests in the cooperative are not transferable apart from the occupancy lease to which they are attached.

1. Restriction on Transfer of Interests can be retained by cooperative.
2. Mortgages: held by cooperative and have priority over occupancy leases (individual tenants not liable)
3. Maintenance Expenses

Question 209

Real Property: Cooperatives, Condominiums, and Zoning: Condominimums (3)

Answer 209

Each owner owns the interior of her individual unit plus an undivided interest in the exterior and common elements.

1. Restriction on Transfer of Interests: treated as a fee ownership, so ordinary rules against restraints on alienation apply.
2. Mortgages: each owner finances own unit
3. Maintenance Expenses: pays own taxes and proportionate share of maintenance and insurance.

Question 210

Real Property: Cooperatives, Condominiums, and Zoning: Zoning (4)

Answer 210

Zoning power based on state’s police power and control land use for HEALTH, SAFETY, MORALS, AND WELFARE of citizens. Zoning–division into districts. Zoning power limited by due process clause of 14th and no taking clause of 5th. Cities and counties can zone only if authorized to do so by state enabling acts. Ordinances that do not conform to such acts are ultra vires (beyond the authority of the local body) and are void.

1. Nonconforming Use: a use that exists at the time of the statute cannot be eliminated at once. Amortization: gradual elimination of such nonconforming use.
2. Special Use Permits
3. Variance
4. Unconstitutional Takings and Exactions

Question 211

Torts: Intentional Torts: Prima Facie Case: Intent (6)

Answer 211

The requisite intent for intentional torts can be either specific or general.

1. Specific Intent
   Actor intends the consequences of his conduct if his GOAL in acting is to bring about these consequences.
2. General Intent
   An actor intends the consequences of his conduct if he KNOWS WITH SUBSTANTIAL CERTAINTY that these consequences will result.
3. Actor Need Not Intend Injury
4. Transferred Intent
   Where defendant intends to commit a tort against one person but instead (i) commits a different tort against that person, or (iii) commits a different tort against a different person. In such a case, the INTENT TO COMMIT A TORT AGAINST ONE PERSON IS TRANSFERRED TO THE OTHER TORT OR TO THE INJURED PERSON for purposes of establishing a prima facie case.

Limitations: Both torts must be within the following list: Assault, Battery, False Imprisonment, Trespass to land, Trespass to Chattel.

5. Motive Distinguished
6. Minors and Incompetents Can Have Requisite Intent

Question 212

Torts: Intentional Torts: Prima Facie Case–Intentional Torts to the Person: Battery (Prima Facie case + 7)

Answer 212

An act by the defendant which brings about HARMFUL or OFFENSIVE CONTACT to the plaintiff’s person.

1. Harmful or Offensive Conduct (to a reasonable person of ordinary sensibilities)
2. Plaintiff’s Person (anything connected)
3. Causation (direct; indirect–sets in motion a force that brings about harmful or offensive contact)
4. Apprehension Not Necessary
5. Transferred Intent: applies
6. Actual Damages Not Required (nominal damages; sometimes punitives where defendant acted with malice)

Question 213

Torts: Intentional Torts: Prima Facie Case–Intentional Torts to the Person: Assault (Prima Facie Case +2)

Answer 213

An act by the defendant creating a REASONABLE APPREHENSION in plaintiff of IMMEDIATE HARMFUL OR OFFENSIVE CONTACT to plaintiff’s person.

1. Transferred Intent: Applies
2. No Requirement of Damages: nominal and punitives (malicious)

Question 214

Torts: Intentional Torts: Prima Facie Case–Intentional Torts to the Person: False Imprisonment (Prima Facie Case +6)

Answer 214

An act or omission to act on the part of the defendant that CONFINES or RESTRAINS the plaintiff to a BOUNDED area;
INTENT on the part of the defendant to confine or restrain the plaintiff to a bounded area;
CAUSATION

1. No Need to Resist
2. Time of Confinement: immaterial except to extent of damages
3. Awareness of Imprisonment
4. What is a Bounded Area: Plaintiff’s freedom of movement IN ALL DIRECTIONS must be limited
5. Transferred Intent: applies
6. No Requirement of Damages

Question 215

Torts: Intentional Torts: Prima Facie Case–Intentional Torts to Property: Trespass to Land (Prima Facie Case +4)

Answer 215

An act of PHYSICAL INVASION of plaintiff’s real property by defendant;
INTENT of defendant’s part to bring about a physical invasion of plaintiff’s real property
CAUSATION

1. Intent: mistakes as to the lawfulness of the entry is no defense–intent to enter upon the land is sufficient
2. Who May Bring Action: anyone in actual or constructive possession of land
3. Transferred Intent
4. No Requirement of Damages

Question 216

Torts: Intentional Torts: Prima Facie Case–Intentional Torts to Property: Conversion (prima facie case +4)

Answer 216

An act of defendant that INTERFERES WITH PLAINTIFF’S RIGHT OF POSSESSION in the chattel that is SERIOUS ENOUGH in nature or consequence to warrant that the defendant PAY THE FULL VALUE of the chattel;
INTENT TO PERFORM THE ACT bringing about the interference with plaintiff’s right of possession
CAUSATION

1. Mere Intent to Perform Act even if conduct is wholly innocent
2. Seriousness of Interference or Consequence (refuses to return; alters property; longer withholding period and more extensive the use)
3. Subject Matter of Conversion: tangible personal property and intangibles that have been reduced to physical form (e.g., promissory note), and documents in which title to chattel is merged (bill of lading). Real property cannot be converted.
4. Who May Bring Action for Conversion? Anyone with possession or immediate right of possession.

Question 217

Torts: Intentional Torts: Defenses to the Intentional Torts: Self-Defense: how much force

Answer 217

Force that reasonably appears to be necessary to prevent the harm. One may not use force that is likely to cause death or serious bodily injury unless reasonably believes he is in danger of serious bodily injury. If more force than necessary is used, the actor loses the privilege of self defense.

Question 218

Torts: Intentional Torts: Defenses to the Intentional Torts: Defense of Property: how much force?

Answer 218

One may use REASONABLE force to defend property, but may NOT use force that will cause death or serious bodily harm. One may not use indirect deadly force such as trap, spring gun, or vicious dog.

Question 219

Torts: Intentional Torts: Defenses to the Intentional Torts: Reentry unto Land (self help) (2)

Answer 219

1. Common Law Privilege

2. No Such Privilege Under Modern Law

Question 220

Torts: Intentional Torts: Defenses to the Intentional Torts: Privilege of Arrest (3)

Answer 220

1. Invasion of Land allowed
2. Subsequent Misconduct: failing to bring arrested party before a magistrate, unduly detaining the party in jail
3. Mistake–can be liable for false imprisonment

Question 221

Torts: Intentional Torts: Defenses to the Intentional Torts: Necessity (2)

Answer 221

A person may interfere with the real or personal property of another where the interference is reasonably and apparently necessary to avoid threatened injury from a natural or other force and where the threatened injury is substantially more serious than the invasion that is undertaken to avert it.

1. Public Necessity: act is for the public good, defense is absolute
2. Private Necessity: act is solely to benefit a limited number of people, defense is qualified, actor must pay damages.

Question 222

Torts: Harm to Economic and Dignitary Interests: Defamation: Defamatory Language (4)

Answer 222

1. Defamatory on its face.
2. Inducement (pleads an proves additional facts as) and Innuendo (establishes the defamatory meaning by)
3. Methods of Defamation: pictures, satire, drama
4. Statements of Opinion: only actionable if appears to be based on specific facts AND an express allegation of one of those fact would be defamatory.

Question 223

Torts: Harm to Economic and Dignitary Interests: Defamation: “Of or Concerning” the Plaintiff: general rule; special proof; members of a group

Answer 223

1. Reasonable reader, listener, or viewer would understand the defamatory statement to refer to plaintiff.
2. Colloquium: pleading and proving extrinsic facts to show that plaintiff was intended.
3. All Members of Small Group: where the defamatory language refers to all members of a small group, each member may establish that the defamatory statement was made of and concerning him by alleging that he is a member of the group.
4. All Members of a Large Group: No action
5. Some Members of a Small Group: must show statement referred to plaintiff

Question 224

Torts: Harm to Economic and Dignitary Interests: Defamation: Publication (4)

Answer 224

1. Only Intent to Publish Required–doesn’t need to know that defaming the plaintiff
2. Repetition: each repetition is a separate publication for which the plaintiff may recover damages.
3. “Single Publication” Rule–all copies of a newspaper, magazine, or book edition are treated as only one publication. Product release starts the Statute of Limitations.
4. Who May Be Liable?

Primary publisher: each individual who takes part in the making of the publication and is held liable to the same extent as the speaker.

Republisher: one who repeats a defamatory statement will be held liable on the same basis as primary publisher, even when makes it clear that does not believe the defamation.

Secondary Publishers: one who is responsible for disseminating materials that might contain defamatory matter (vendors of newspapers) only liable IF THEY KNOW OR SHOULD HAVE KNOWN of the defamatory content.

Question 225

Torts: Harm to Economic and Dignitary Interests: Defamation: Damage to Plaintiff’s Reputation (5)

Answer 225

Plaintiffs burden of proof as to damages may depend on distinction between libel and slander.

1. General or Presumed Damages: presumed by law and don’t need to be proved.
2. Special Damages: In defamation, must SPECIFICALLY prove that sufferered ECONOMIC LOSS as a result of damage to reputation.
3. Libel: defamatory statement recorded in writing or some other permanent form (tv show). GENERAL DAMAGES PRESUMED.

Distinctions between jurisdictions:
libel per se: defamatory on its face–general damages
libel per quod: proved by extrinsic evidence–special damages

4. Slander: special damages
5. Slander Per Se: considered defamatory on its face if falls within one of the 4 categories and gets general damages

• -Business or Profession
• -Loathsome disease
• -Crime Involving Moral Turpitude
• -Unchastity of a Woman

Question 226

Torts: Harm to Economic and Dignitary Interests: Defamation: Falsity

Answer 226

At common law, a defamatory statement was presumed to be false. The Supreme Court has rejected this presumption in all cases where the plaintiff is constitutionally required to prove some type of fault. In these cases, the plaintiff must prove as an element of the prima facie case that the statement was false.

(exam tip: even where the statement is true, you may be able to assert a claim for intentional infliction of emotional distress, but a public figure or a matter of public concern cannot be actionable on these grounds)

Question 227

Torts: Harm to Economic and Dignitary Interests: Defamation: Fault on Defendant’s Part

Answer 227

Although at common law defamation liability could be strict, the Supreme Court has imposed a fault requirement in cases involving public figures or matters of public concern.

Public Officials–Malice Required
Public Figures–Malice Required
Private Persons, Matter of Public Concern–Need Not Prove Malice, At Least Negligence Required

Public Figure: (i) has achieved such pervasive fame or notoriety that he becomes a public figure for all purposes and contexts; or (ii) where he voluntarily assumes a CENTRAL ROLE in a particular PUBLIC CONTROVERSY and thereby becomes a “public figure” for that limited range of issues.

Malice: Knowledge that the statement was false or reckless disregard as to its truth or falsity. (NOT measured by reasonable person standard to investigate, but whether defendant ENTERTAINED SERIOUS DOUBTS as to the truthfulness of his publication.)

Alteration of a quotation: must prove that the alteration results in a MATERIAL CHANGE IN THE MEANING CONVEYED BY THE STATEMENT.

Question 228

Torts: Harm to Economic and Dignitary Interests: Defamation: Defenses to Defamation (4)

Answer 228

1. Consent
2. Truth
3. Absolute Privilege
   (i) Judicial Proceedings: all statements made by judge, juror, counsel, witnesses or parties in all aspects of the proceeding as long as it bears some REASONABLE RELATIONSHIP to the proceeding.
   (ii) Legislative Proceedings: federal or state legislators in their official capacity–no requirement of reasonable relationship to any matter at hand.
   (iii) Executive Proceedings: while exercising functions of office–must have some reasonable relationship to the matter.
   (iv) Compelled Broadcast or Publication: equal time statutes
4. Qualified Privilege
   (i) Reports of Public Proceedings
   (ii) Public Interest: publication to one acting in public action; fair comment and criticism (book reviews)
   (iii) Interest of Publisher: statement made to defend own actions
   (iv) Interest of Recipient: and reasonable for defendant to make the publication–recommendation for a job
   (v) Common Interest of Publisher and Recipient

Loss of privilege through abuse:

(i) statement not within scope of privilege
(ii) malice–knowledge and reckless disregard for truth or falsity of statement

Burden of Proof: Defendant bears burden to prove that a privilege exists.

Question 229

Torts: Harm to Economic and Dignitary Interests: Defamation: Mitigating Factors (3)

Answer 229

1. No Actual Malice
2. Retraction
3. Anger (if provoked by the plaintiff)

Question 230

Torts: Harm to Economic and Dignitary Interests: Invasion of Right to Privacy: Appropriation of Plaintiff’s Name or Picture

Answer 230

UNAUTHORIZED USE by defendant of plaintiff’s picture or name for defendant’s COMMERCIAL ADVANTAGE.

Limited to Advertisment or Promotion of Product or Services.

Question 231

Torts: Harm to Economic and Dignitary Interests: Invasion of Right to Privacy: Intrusion on Plaintiff’s Affairs or Seclusion

Answer 231

ACT OF PRYING OR INTRUDING on the affairs or seclusion of the plaintiff by the defendant;
The intrusion is something that would be HIGHLY OFFENSIVE TO A REASONABLE PERSON; and
The thing to which there is an intrusion or prying is PRIVATE.

Question 232

Torts: Harm to Economic and Dignitary Interests: Invasion of Right to Privacy: Publication of Facts Placing Plaintiff in False Light

Answer 232

Publication of FACTS about plaintiff by defendant placing plaintiff in a FALSE LIGHT in the public eye;
The false light is something that would be HIGHLY OFFENSIVE TO A REASONABLE PERSON under the circumstances; and
MALICE on the part of defendant where the published matter is in the PUBLIC INTEREST.

Publication or Public Disclosure: this is more than publication in defamation.

False Light: views that he does not hold or actions that he didn’t take.

Malice Necessary Where in Public Interest

Question 233

Torts: Harm to Economic and Dignitary Interests: Invasion of Right to Privacy: Public Disclosure of Private Facts about Plaintiff

Answer 233

Publication or public disclosure by defendant of PRIVATE information about the plaintiff; and
The matter made public is such that its disclosure would be HIGHLY OFFENSIVE TO A REASONABLE PERSON.

Facts must be private and may be true.

Malice necessary if a matter of legitimate public interest.

Question 234

Torts: Harm to Economic and Dignitary Interests: Invasion of Right to Privacy: Defenses to Invasions of Privacy (3)

Answer 234

1. Consent: but must not exceed scope. Some states require it be in writing.
2. Defamation Defenses based on absolute and qualified privilege apply to those predicated on publication grounds (false light and public disclosure of private facts)
3. Truth, inadvertance, good faith, and lack of malice are NOT good defenses for most invasion of privacy actions.

Question 235

Torts: Harm to Economic and Dignitary Interests: Invasion of Right to Privacy: Miscellaneous–causation; damages; scope of liability

Answer 235

1. Causation: invasion must have been PROXIMATELY CAUSED by defendant’s conduct.
2. Proof of Special Damages Unnecessary–emotional distress and mental anguish ARE sufficient.
3. Right is Personal–does not extend to members of a family.
4. Not Applicable to Corporations

Question 236

Torts: Harm to Economic and DignItary Interests: Misrepresentation: Intentional Misrepresentation

Answer 236

MISREPRESENTATION made by defendant;
SCIENTER;
An INTENT TO INDUCE plaintiff’s RELIANCE on the misrepresentation;
CAUSATION (i.e., actual reliance on the misrepresentation);
JUSTIFIABLE RELIANCE by plaintiff on the misrepresentation; and
DAMAGES

Misrepresentation: usually must be a misrepresentation of a MATERIAL FACT OR PRESENT FACT.

No duty to disclose–so failure to disclose a material fact or opinion does not generally satisfy the first element unless:
FIDUCIARY RELATIONSHIP–duty of disclosure
REAL PROPERTY SALE–seller knows buyer unaware of and cannot reasonably discover material information about the transaction.
UTTERANCE DECEIVES PLAINTIFF–if the defendant speaks, they have a duty

ACTIVE CONCEALMENT–duty to disclose

SCIENTER: knowing it to be false or made with reckless disregard as to its truth or falsity

FORESEEABLE PLAINTIFFS: no need to intend to induce reliance on a particular plaintiff where it is foreseeable that a certain class of people will rely on the misrepresentation: Continuous Deception Exception and Third-Party Reliance Problem

NO DUTY TO INVESTIGATE for justifiable reliance

RELIANCE ON OPINION usually NOT justifiable UNLESS:

(i) Superior Knowledge of Defendant
(ii) Statements of Law (house conforms to city codes)
(iii) Statement of Future Events (promise to pay $500 per month for next two years)

DAMAGES: only ECONOMIC damages–benefit of the bargain

Question 237

Torts: Harm to Economic and Dignitary Interests: Misrepresentation: Negligent Misrepresentation

Answer 237

MISREPRESENTATION made by defendant in a BUSINESS OR PROFESSIONAL CAPACITY;
BREACH OF DUTY toward PARTICULAR PLAINTIFF;
CAUSATION;
JUSTIFIABLE RELIANCE by plaintiff upon the misrepresentation;
DAMAGES

Duty Owed Only to Particular Plaintiff Whose Reliance Contemplated: no third party liability

Question 238

Torts: Harm to Economic and Dignitary Interests: Interference With Business Relations: Privileges (4)

Answer 238

An Interferor’s conduct may be privileged where it is a proper attempt to obtain business for the interferor or protect its interests.

1. Prospective Business Relationship vs. Existing Contract
2. Means of Persuasion Used
3. Whether Defendant is a Competitor of Plaintiff
4. Defendant’s Relationship with the Third Party (duty?)

Question 239

Torts: Harm to Economic and Dignitary Interests: Wrongful Institution of Legal Proceedings: Malicious Prosecution

Answer 239

INSTITUTION OF CRIMINAL PROCEEDINGS against plaintiff;
Termination FAVORABLE TO PLAINTIFF;
ABSENCE OF PROBABLE CAUSE for prosecution;
IMPROPER PURPOSE of defendant (i.e., malice); and
DAMAGES

Institution of Criminal Proceedings–filing a police report to procure plaintiff’s arrest (prosecuting attorneys are absolutely privileged)

Termination of Proceedings in Plaintiff’s Favor–must demonstrate the INNOCENCE of plaintiff

Damages: damages must be proved, but available for emotional distress and punitives

False Arrest Distinguished–arrest itself is illegal, where here the arrest would be carried out in a lawful manner

Question 240

Torts: Harm to Economic and Dignitary Interests: Wrongful Institution of Legal Proceedings: Abuse of Process (1)

Answer 240

1. Malicious Prosecution Distinguished

Question 241

Torts: Negligence: The Duty of Care: To Whom is the Duty of Care Owed? (3)

Answer 241

1. General Rule–Foreseeable Plaintiffs only
2. The Unforeseeable Plaintiff Problem: when D breaches a duty to P1 and also causes injury to P2. D’s liability to P2 will depend upon whether the Andrews or Cardozo view is Palsgraf is adopted. Most courts follow Cardozo.

Andrews: D owes a duty to ANYONE who suffers injuries as a proximate result of his breach of duty to SOMEONE.

Cardozo: P2 was located in a foreseeable ZONE OF DANGER.

3. Specific Situations
   RESCUERS–foreseeable as long as the rescue is not extremely careless (wanton)
   PRENATAL INJURIES–duty of care is owed to VIABLE fetus (wrongful life action not recognized–failure to diagnose a congenital defect or properly perform contraceptive procedure)(wrongful birth and wrongful pregnancy recognized–damages are expenses of delivering the child)
   INTENDED THIRD PARTY BENEFICIARIES OF ECONOMIC TRANSACTIONS–if reasonable foreseeable that negligence in the transaction would cause harm to that person

Question 242

Torts: Negligence: The Duty of Care: What is Applicable Standard of Care?: Basic Standard–The Reasonable Person (3)

Answer 242

Defendant’s conduct is measured against the reasonable, ordinary, prudent person. This reasonable person has the following characteristics, measured by an OBJECTIVE standard:

1. Physical Characteristics–Same as Defendant’s (disabilities)
2. Average Mental Ability (individual handicaps are not considered, low IQ no excuse)
3. Same Knowledge as Average Member of Community (this is baseline–person with superior knowledge is expected to use that knowledge)

Question 243

Torts: Negligence: Breach of Duty: Res Ipsa Loquitor

Answer 243

The circumstantial evidence doctrine res ipsa loquitor (the thing speaks for itself) deals with those situations where the fact that a particular injury occurred may itself establish or tend to establish a breach of duty owed.

Res Ipsa Loquitor requires the plaintiff to show the following:

1. Inference of Negligence–plaintiff must show that the accident causing his injury is the type that would not normally occur unless someone was negligent.
2. Negligence Attributable to Defendant–i.e., evidence must be presented that this type of accident ordinarily happens because of the negligence of someone in defendant’s position.
3. Plaintiff’s Freedom from Negligence–may do so by own testimony

EFFECT of Res Ipsa Loquitor

1. No directed verdict for defendant because plaintiff has made a prima facie case of negligence. (judgment as a matter of law)
2. The effect of defendant’s evidence that due care was exercised has the same effect in res ipsa cases as in all other cases. Jury will weigh it to determine fault.

MULTIPLE DEFENDANTS
Where more than one person had control of the instrumentality, res ipsa loquitor generally may NOT be used to establish a prima facie case of negligence.

Question 244

Torts: Negligence: Causation: Proximate Cause (Legal Causation): General rule of liability

Answer 244

Defendant is liable for all harmful results that are THE NORMAL INCIDENTS OF AND WITHIN THE INCREASED RISK CAUSED BY his acts. The test is based on FORESEEABILITY.

Question 245

Torts: Negligence: Causation: Proximate Cause (Legal Causation): Direct Cause Cases

Answer 245

A direct cause case is one where the facts present an UNINTERRUPTED CHAIN OF EVENTS from the time of the defendant’s negligent act to the time of the plaintiff’s injury.

FORESEEABLE HARMFUL RESULTS–DEFENDANT LIABLE

UNFORESEEABLE HARMFUL RESULTS–DEFENDANT NOT LIABLE

Question 246

Torts: Negligence: Damages: Damages Recoverable in the Action (4)

Answer 246

1. PERSONAL INJURY
   Plaintiff is to be compensated for ALL his damages (past, present, and future) both special and general. Includes economic damages such as medical expenses and lost earning and noneconomic damages such as pain and suffering (emotional distress). (foreseeability irrelevant)
2. PROPERTY DAMAGE
   The measure of damage for property damage is the reasonable COST OF REPAIR, or if the property has been almost or completely destroyed, its FAIR MARKET VALUE at the time of the accident.
3. PUNITIVE DAMAGES
   In most jurisdictions if defendant’s conduct was “wanton and willful,” reckless, or malicious.
4. NONRECOVERABLE ITEMS
   Includes interest from date of damage in personal injury action and attorneys’ fees.

Question 247

Torts: Negligence: Defenses to Negligence: Contributory Negligence: Standard of Care

Answer 247

1. Standard of Care for Contributory Negligence
   (i) general rule: standard of care is same as that for ordinary negligence
   (ii) rescuers: a plaintiff may take extraordinary risks when attempting a rescue without being considered contributorily negligent.
   (iii) remaining in danger: may be contributorily negligent to fail to remove oneself from danger
   (iv) violation of statute: plaintiff’s contributory negligence may be established by his violation of a statute under the same rules that govern whether a statute can establish defendant’s negligence
   (v) as a defense to violation of a statute by defendant: unless the statute designed to protect plaintiff from own incapacity and lack of judgment.

Question 248

Torts: Negligence: Defenses to Negligence: Assumption of Risk

Answer 248

Plaintiff may be denied recovery if he assumed the risk of any damage caused by the defendant’s acts. This assumption may be express or implied. To assume risk, either expressly or impliedly, plaintiff must have KNOWN OF THE RISK and VOLUNTARILY assumed it. It is irrelevant that the plaintiff’s choice is unreasonable.

IMPLIED ASSUMPTION OF RISK

1. KNOWLEDGE OF THE RISK–may be implied where the risk is one that the average person would clearly appreciate.
2. VOLUNTARY ASSUMPTION–not voluntary where no alternative to proceeding in the face of risk
3. CERTAIN RISKS MAY NOT BE ASSUMED–public policy: common carriers and public utilities not allowed to limit liability by a disclaimer; when statute is enacted to protect a class, members of that class will not be deemed to have assumed risk; risks will not be assumed in situation involving fraud, force, or emergency.

EXPRESS ASSUMPTION OF RISK
Exculpatory clauses in a contract–closely scrutinized but generally upheld

NO DEFENSE TO INTENTIONAL TORTS–but is a defense to wanton or reckless conduct.

Question 249

Torts: Negligence: Defenses to Negligence: comparative negligence

Answer 249

A substantial MAJORITY of states now permit a contributorily negligent plaintiff to recover a percentage of his damages under some type of COMPARATIVE NEGLIGENCE system. In every case where contributory negligence is shown, the trier of fact weighs the plaintiff’s negligence against the defendant’s and reduces plaintiff’s damages accordingly.

PARTIAL COMPARATIVE NEGLIGENCE–most jurisdictions will still bar plaintiff’s recovery if his negligence passes a threshold level (50% or 51%) (multiple defendants–plaintiff’s negligence is compared with the total negligence of all defendants combined)

PURE COMPARATIVE NEGLIGENCE–allows recovery no matter how great plaintiff’s negligence is

LAST CLEAR CHANCE–not used in comparative negligence states

IMPLIED ASSUMPTION OF RISK–abolished

EXPRESS ASSUMPTION OF RISK–retain the defense

INTENTIONAL TORTS–no defense, but is for wanton and willful conduct by defendant

Question 250

Torts: Liability Without Fault (Strict Liability): Liability for Animals

Answer 250

TRESPASSING ANIMALS–owner is strictly liable for damage done by trespass of his animals (other than household pets) as long as it was REASONABLY FORESEEABLE.

PERSONAL INJURIES

1. Wild Animals–strictly liable
2. Domestic Animals–not strictly liable, KNOWLEDGE OF ANIMALS DANGEROUS PROPENSITIES REQUIRED, even if animal never harmed anyone before (statutes–dog bite statutes)

PERSONS PROTECTED

1. Licensees and Invitees–landowner strictly liable (public duty exception: zookeeper)
2. Trespassers–must prove negligence (landowner knows trespasser on the land and fails to warn them)

COMPARE VICIOUS WATCHDOG–liable under intentional tort principles

Question 251

Torts: Liability Without Fault (Strict Liability): Abnormally Dangerous Activities

Answer 251

QUESTION OF LAW

1. The activity must create a foreseeable risk of SERIOUS HARM EVEN WHEN REASONABLE CARE IS EXERCISED by all actors; and
2. The activity is NOT A MATTER OF COMMON USAGE in the community.

Question 252

Torts: Liability Without Fault (Strict Liability): Extent of Liability

Answer 252

SCOPE OF DUTY OWED
Duty owed is an ABSOLUTE DUTY TO MAKE SAFE the animal, activity, or condition that is classified abnormally dangerous, and liability is imposed for any injuries to persons or property resulting therefrom.

To Whom is the Duty Owed: foreseeable plaintiffs
Duty Limited: to normally dangerous propensity

PROXIMATE CAUSE
Majority view is that the same rules of direct and indirect causation govern in strict liability as they do in negligence.

DEFENSES
Contributory Negligence States–no defense if the plaintiff simply failed to realize the danger or guard against its existence. It IS a defense if plaintiff knew of the danger and his unreasonable conduct was the very cause of the harm from the wild animal or abnormally dangerous activity.

Comparative Negligence States–same as negligence cases

Pennsylvania, a comparative negligence state: “unknowing” contributory negligence (failure to discover or guard against the existence of the danger) is no defense, while “knowing” contributory negligence (“assumption of risk”) is a complete defense.

Question 253

Torts: Products Liability: Basic Principles: Existence of a Defect: Types of Defects

Answer 253

To find liability under any products liability theory, plaintiff must show that the product was “defective” when the product left defendant’s control.

2 Types of Defects

MANUFACTURING DEFECTS
When a product emerges from a manufacturing process not only different from the other products, but also more dangerous than if it had been made the way it should have been, the product may be so “unreasonably dangerous” as to be defective because of the manufacturing process.

DESIGN DEFECTS
When all the products of a line are made identically according to manufacturing specification, but have dangerous propensities because of their mechanical features or packaging, the entire line may be found to be defective because of poor design.

INADEQUATE WARNINGS (design defect)
A product must have clear and complete warnings of any danagers that may not be apparent to users.  For prescription drugs and medical devices, warnings need not be supplied to the patient; a warning to the prescribing physician usually will suffice (the "learned intermediary" rule)

Question 254

Torts: Products Liability: Basic Principles: No Requirement of Contractual Privity Between Plaintiff and Defendant

Answer 254

Whether the parties to the suit are in privity (when a contractual relationship exists between them–such as a direct sale) is generally irrelevant under current law except for some of the warranty theories of liability.

VERTICAL PRIVITY ABSENT
Privity does not exist where the injured plaintiff, usually the buyer, is in the direct distribution chain but is suing a remote party–the wholesaler of the manufacturer–rather than the retailer who sold the product to the plaintiff.

HORIZONTAL PRIVITY ABSENT
Privity is absent where the defendant, usually the retailer, is in the direct distribution chain with the buyer, but the plaintiff injured by the product is not the buyer, but rather the buyer’s friend, neighbor, or a complete stranger.

Question 255

Torts: Products Liability: Liability Based on Negligence: Defendant with Duty of Care to Plaintiff

Answer 255

COMMERCIAL SUPPLIER OF PRODUCTS

Includes: manufacturer of a chattel or a component part thereof, assembler, wholesaler, retailer, or even a used car dealer who sells reconditioned or rebuilt cars.

Those who repair a product owe a general duty of care, but are not usually “suppliers” for purposes of products liability cases.

LABELING ANOTHER’S PRODUCT
A retailer who LABELS a product as the retailer’s own or assembles a product from components manufactured by others is liable for the negligence of the actual manufacturer, even though the retailer is not personally negligent.

PRIVITY NOT REQUIRED
duty of care is owed to ANY FORESEEABLE PLAINTIFF (user, consumer, or bystander)

Question 256

Torts: Products Liability: Liability Based on Strict Liability: Defendant Must be “Commercial Supplier”

Answer 256

COMMERCIAL SUPPLIER OF PRODUCTS

Includes: manufacturer of a chattel or a component part thereof, assembler, wholesaler, retailer, or even a used car dealer who sells reconditioned or rebuilt cars.

Those who repair a product owe a general duty of care, but are not usually “suppliers” for purposes of products liability cases.

Distinction between product and service: restaurants are treated as suppliers of products, while most courts treat the transfusion of infected blood as the rendition of a service.

PRODUCT NOT SUBSTANTIALLY ALTERED: required to hold a commercial supplier liable.

HORIZONTAL AND VERTICAL PRIVITY NOT REQUIRED

NO PROOF OF FAULT NEEDED: only proof that product was defective

Question 257

Torts: Products Liability: Liability Based on Strict Liability: Causation

Answer 257

ACTUAL CAUSE
To prove actual cause, the plaintiff must trace the harm suffered to a defect in the product that existed WHEN THE PRODUCT LEFT THE DEFENDANT’S CONTROL. However, if the defect is difficult to prove (product destroyed), plaintiff may rely on an inference that this type of product failure ordinarily would occur only as a result of a product defect. If the plaintiff claims that one of the defective conditions was a lack of an adequate, plaintiff is entitled to the presumption that the adequate warning would have been read and heeded.

PROXIMATE CAUSE: same as for proximate cause governing general negligence and strict liability actions. As with product liability cases based on negligence, the negligent failure of an intermediary to discover the defect does not cut off the suppliers strict liability.

Question 258

Torts: Products Liability: Liability Based on Strict Liability: Damages and Defenses

Answer 258

Personal Injury and Property Damage: most states deny recovery under strict liability when the sole claim is for ECONOMIC LOSS.

DEFENSES
1. Contributory Negligence State:
UNKNOWING
Ordinary contributory negligence is not a defense (where plaintiff failed to discover or guard against the existence of the defect).
KNOWING
Unreasonable conduct, such as voluntarily and unreasonably encountering a known risk (i.e., assumption of risk) are defenses.

2. Comparative Negligence State
   Same application as in negligence cases, but PA recognizes KNOWING AND UNKNOWING distinction on recovery.

DISCLAIMER OF LIABILITY INEFFECTIVE: irrelevant if personal injury or property damage have occurred.

Question 259

Torts: Products Liability: Implied Warranties of Merchantability and Fitness: Privity (2)

Answer 259

1. Vertical Privity No Longer Required
2. UCC Alternative on Horizontal Privity:
   (i) Alternative A: extends implied warranty protection to a BUYER’S FAMILY, HOUSEHOLD AND GUESTS who suffer personal injury;
   (ii) Alternative B: extends protection to any natural person who suffers personal injury;
   (iii) Alternative C: covers any person who suffers any injury.

MOST STATES HAVE ADOPTED ALTERNATIVE A

UCC silent on vertical privity

Question 260

Torts: Products Liability: Implied Warranties of Merchantability and Fitness: Defenses (4)

Answer 260

1. Assumption of Risk: using product while knowing of breach of warranty bars recovery
2. Contributory Negligence: unreasonable failure to discover the defect does not bar recovery, but unreasonable conduct AFTER discovery does bar recovery
3. Comparative Negligence: used to reduce damage award in same way as strict liability cases
4. Notice of Breach: UCC requires buyer to notify seller of breach WITHIN A REASONABLE TIME after the buyer discovers or should have discovered the breach.

Question 261

Torts: Products Liability: Representation Theories (Express Warranty and Misrepresentation of Fact): Express Warranty (scope, privity, basis of the bargain, basis of liability, effect of disclaimers, causation, damages, defenses)

Answer 261

1. Scope of Coverage: sale of goods and lease of goods
2. Privity Not Required: although UCC declares alternatives to apply to express and implied warranties, most courts have held privit to be irrelevant in express warranty cases.
3. Basis of the Bargain: if someone not in privity is permitted to sue, this remote person need not have known about the affirmation as long as it became a part of the basis of the bargain for someone else within the chain of distribution.
4. Basis of Liability – Breach of Warranty (no fault necessary)
5. Effect of Disclaimers: effective only to the extent that it can be read consistently with any express warranties made. (virtually impossible to disclaim an express warranty)
6. Causation, Damages, and Defenses: same as implied warranties

Question 262

Torts: Products Liability: Representation Theories (Express Warranty and Misrepresentation of Fact): Misrepresentation of Fact

Answer 262

1. Defendant’s State of Mind: as long as the defendant is a seller engaged in the business of selling such products, there is no need to show fault on the defendant’s part. The plaintiff need only show that the representation proved false, without regard to the defendant’s state of mind (strict liability). (can have intentional and negligent)
2. Material Fact Required: puffing or opinion not actionable
3. Intent to Induce Reliance of Particular Buyer: evidence of a representation made to the public by label, advertisement, or otherwise is sufficient to show an intent to induce reliance
4. Justifiable Reliance: reliance need not be victims (because no privity required–could have been previous buyer who passed the product on to someone else)
5. Actual Cause: reliance by the purchaser serves to show actual cause
6. Damages: punitives may be available if the misrepresentation was intentional
7. Defenses
   Assumption of risk: none if plaintiff entitled to rely on the representation
   Contributory negligence: only if negligent misrepresentation

Question 263

Tort: General Considerations for All Tort Cases: Vicarious Liability: Doctrine of Respondeat Superior

Answer 263

A master/employer will be vicariously liable for tortious acts committed by her servant/employee if the tortious acts occur WITHIN THE SCOPE OF THE EMPLOYMENT RELATIONSHIP.

1. Frolic and Detour: if the deviation was minor in time and geographic area, the employee will still be considered to be acting within the scope of employment
2. Intentional Torts: in some instances found to be within the scope of employment
   (i) Force is Authorized in the employment: bouncer
   (ii) Friction is generated by the employment: bill collector
   (iii) Employee is furthering the business of the employer: removing rowdy customers from premises
3. Liability to Own Negligence: by negligently selecting or supervising their employees. This is NOT vicarious liability.

Question 264

Tort: General Considerations for All Tort Cases: Vicarious Liability: Independent Contractor Situations

Answer 264

In general, a principal will NOT be vicariously liable for tortious acts of her agent if her agent is an independent contractor.

BROAD EXCEPTIONS

1. Independent contractor is engaged in inherently dangerous activities.
2. The duty, for public policy reasons, is simply nondelegable (duty of a business to keep premises safe for customers).

LIABILITY FOR OWN NEGLIGENCE: in selecting or supervising independent contractor

Question 265

Tort: General Considerations for All Tort Cases: Vicarious Liability: Partners and Joint Venturers

Answer 265

Each member of a partnership or joint venture is vicariously liable for the tortious conduct of another member committed in the scope and course of the affairs of the partnership or joint venture.

JOINT VENTURE:
A joint venture, although similar to a partnership, is for a more limited time period and more limited purpose. A joint venture exists when two or more people enter into an activity if two elements are present:

1. Common Purpose (majority of courts–business purpose)
2. Mutual Right of Control–is not crucial that the party does not give instructions, just important that there is a mutual agreement that each party has the right to have her desires respected on the same basis as the others.

Question 266

Tort: General Considerations for All Tort Cases: Vicarious Liability: Automobile Owner for Driver

Answer 266

General rule is that an automobile owner is NOT VICARIOUSLY LIABLE for the tortious conduct of another driving his automobile.

FAMILY CAR DOCTRINE: adopted by many states–owner is liable for tortious conduct of immediate family or household members who are driving with the owner’s express or implied permission.

PERMISSIVE USE STATUTES: Liability for ANYONE driving with such consent.

Owner Liable for own negligence in entrusting the car to a driver.

Question 267

Tort: General Considerations for All Tort Cases: Vicarious Liability: Parent for Child

Answer 267

Parent is NOT VICARIOUSLY LIABLE for the tortious conduct of the child at common law.

However, by statute, most states make parents liable for the willful and intentional torts of their minor children up to a certain dollar amount.

Child Acting as an Agent for Parents–vicarious liability

Parent Liable for Own Negligence in allowing the child to do something.

Question 268

Tort: General Considerations for All Tort Cases: Parties–Multiple Defendant Issues: Joint and Several Liability

Answer 268

When two or more tortious acts combine to proximately cause an INDIVISIBLE injury to a plaintiff, each tortfeasor is jointly and severally liable for that injury. This means that each is liable to the plaintiff for the entire damage.

However, if the actions are independent and the injury is divisible, and it is possible to identify the portion of injuries caused by each defendant, then each will only be liable for the identifiable portion.

TORTFEASORS ACTING IN CONCERT (by agreement) jointly and severally liable even if the injury is divisible and one could identify what each tortfeasor has done alone.

STATUTORY LIMITATIONS: most common types abolish joint liability either
(i) for those tortfeasors judged to be less at fault than the plaintiff, or
(ii) for all tortfeasors with regard to noneconomic damages.
The liability of the tortfeasor in those situations is proportional to his fault.

Question 269

Tort: General Considerations for All Tort Cases: Parties–Multiple Defendant Issues: Satisfaction and Release

Answer 269

1. Satisfaction: if a plaintiff recovers full payment from one tortfeasor, either by settlement or payment of a judgment, there is a “satisfaction.” She may not recover further against any other joint tortfeasor.
2. Release: in most states, a release of one tortfeasor does NOT discharge other tortfeasors unless expressly provided in the release agreement. Rather, the claim against the others is reduced to the extent of the amount stipulated in the agreement or the amount of consideration paid, whichever is greater.

Question 270

Tort: General Considerations for All Tort Cases: Parties–Multiple Defendant Issues: Contribution and Indemnity (3)

Answer 270

1. Contribution: most states allow a tortfeasor required to pay more than his share of damages to have a claim against the other jointly liable parties for the excess.

Most states have a comparative contribution system, but a minority of states have an equal shares system.

The tortfeasor from whom contribution is sought must be originally liable to the plaintiff.

Not allowed for Intentional Torts.

2. Indemnity: involves SHIFTING THE ENTIRE LOSS between or among tortfeasors, in contrast to apportioning it as in contribution. Indemnity is available in the following circumstances:
   (i) right to indemnity by contract (not an implied right)
   (ii) vicarious liability–employer can seek indemnification from the employee
   (iii) products liability–each supplier has a right of indemnification against all previous suppliers in the distribution chain
   (iv) considerable difference in degree of fault between joint tortfeasors

Question 271

Tort: General Considerations for All Tort Cases: Survival and Wrongful Death: Survival of Tort Actions

Answer 271

At common law, a tort action abated at the death of either the tortfeasor or the victim. Most states have changed this by statute, i.e., the SURVIVAL ACTS. A victim’s cause of action will survive to permit recovery of all damages from the time of injury to the time of death. In the majority of states, these acts apply to both torts to property and torts resulting in personal injury.

EXCEPTIONS
Torts that invade an INTANGIBLE PERSONAL INTEREST, e.g., defamation, malicious prosecution, are so personal they expire upon victim’s death.

Question 272

Tort: General Considerations for All Tort Cases: Survival and Wrongful Death: Wrongful Death (who may bring the action; measure of recovery; effect of defenses)

Answer 272

Every state has some form of wrongful death statute.

1. Who May Bring Action: personal representative or surviving spouse or next of kin. Depends on state. PA–personal representative.
2. Measure of Recovery: is for the pecuniary injury resulting to the spouse and next of kin–loss of support, loss of consortium (NOT pain and suffering which would be elements of a personal injury survival action) (judgment small for elderly and children) (creditors have not claim against amount awarded)
3. Effect of Defenses: recovery is allowed ONLY to the extent the deceased could have recovered in the action if he had lived (contributory negligence of deceased would reduce or bar a recovery)

Question 273

Tort: General Considerations for All Tort Cases: Tortious Interferences With Family Relations: Between what family members?

Answer 273

HUSBAND-WIFE: either can maintain an action

PARENT CHILD

1. Parent’s Actions Yes
2. Child’s Actions No

Question 274

Tort: General Considerations for All Tort Cases: Tort Immunities: Intra-Family Tort Immunities

Answer 274

INJURY TO PERSON
Under the traditional view, one member of a family unit could NOT sue another in tort for personal injury. Now:
1. Husband-Wife Immunity Abolished
2. Parent-Child Immunity Limited to intentional tortious conduct and automobile accident cases (insurance purposes)

INJURY TO PROPERTY
A suit for property damage may usually be maintained by any family member against any other family member.

Question 275

Tort: General Considerations for All Tort Cases: Tort Immunities: Governmental Tort Immunity (federal; state; municipal; public officials)

Answer 275

Under the doctrine of sovereign immunity, governmental units were traditionally not subject to tort actions unless they had consented to the suit. Now, by statute and judicial decision, that immunity is considerably limited.

FEDERAL GOVERNMENT

Federal Torts Claim Act–waiver of immunity for tortious acts. Immunity still attaches for:

1. Certain enumerated torts: assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel and slander, misrepresentation and deceit, and interference with contract rights;

2. DISCRETIONARY ACTS (immunity) (planning or decisionmaking level)
MINISTERIAL ACTS (no immunity) (operational level of government);

3. Government contractors in a product’s liability case: if the contractor conformed to reasonable, precise specifications approved by the government and warned the government about any known dangers in the product.

STATE GOVERNMENT
Most states have substantially waived their immunity from tort actions to the same extent as the federal government. Thus, immunity still attaches for discretionary acts and for legislative and judicial decisionmaking.

MUNICIPALITIES
About half of the states have abolished municipal tort immunity by statute or judicial decision to the same extent as state immunity (discretionary acts and policy decisions still immune).
1. Where Immunity Abolished–Public Duty Rule Limitation: where a duty is owed to the public at large and is not owed to any one citizen, unless there is a special relationship between the municipality and the citizen, there is no liability. (Special relationship: (i) assumption through promises or actions of an affirmative duty to act on behalf of the party who was injured; (ii) knowledge on the part of the municipalities agents that inaction could lead to harm; (iii) some form of direct contact between the municipality’s agents and the injured party; AND (iv) that party’s justifiable reliance on the municipality’s affirmative undertaking.)
2. Where Immunity Retained–Limited to Government Functions (as opposed to proprietary functions). (proprietary functions include utility companies, maintaining airport parking lot, etc.)

PUBLIC OFFICIALS
Official has immunity when carrying out official duties where they involve DISCRETIONARY acts done without malice or improper purpose. No immunity for MINISTERIAL duties.

Question 276

Conlaw: Powers of the Federal Government: Judicial Power: Power of Judicial Review: Federal Review of State Acts

Answer 276

The basis exists in the Supremacy Clause of Article VI, which states that the Constitution, Laws, and Treaties of the US take precedence over state laws, and that the judges of the state courts must follow federal law, anything in the constitution or laws of any state to the contrary notwithstanding.

Question 277

Conlaw: Powers of the Federal Government: Judicial Power: Federal Courts: Article I and Article III Courts

Answer 277

Article I Courts
Congress has created certain other courts by way of implementing its various legislative powers: e.g., US Tax Court. Judges of such Article I courts do not have life tenure or protection from salary decrease as do Article III court judges. Article I Courts are sometimes vested with administrative as well as judicial functions, and the congressional power to create such hybrid courts has been sustained by the Supreme Court.

Article III Courts
Article III courts are those established by Congress pursuant to the provisions of Article III, Section I. Congress has power to delineate the jurisdictional limits, both original and appellate, of these courts, although it is bound by the standards of judicial power set forth in Article III as to subject matter, parties, and the requirement of the “case or controversy.” Thus, Congress cannot require these courts to render advisory opinions or perform administrative or nonjudicial functions.

Congress cannot take cases of the type traditionally heard by Article III courts and assign jurisdiction over them to Article I courts.

Question 278

Conlaw: Powers of the Federal Government: Judicial Power: Jurisdiction of the Supreme Court: Original (Trial) Jurisdiction

Answer 278

Under Article III, Section 2, the Supreme Court has original jurisdiction “in all cases affecting the Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party.” This provision is self-executing; Congress may NEITHER RESTRICT NOR ENLARGE the Supreme Courts original jurisdiction, but Congress may give concurrent jurisdiction to lower federal courts and has done so regarding all cases except those between states.

Question 279

Conlaw: Powers of the Federal Government: Judicial Power: Constitutional and Self-Imposed Limitations on Exercise of Federal Jurisdictions–Policy of “Strict Necessity”: Ripeness–Immediate Threat of Harm

Answer 279

A plaintiff generally is not entitled to review of state law before it is enforced (i.e., may not obtain a declaratory judgment). Thus, a federal court will not hear a case unless the plaintiff has been harmed or there is an immediate threat of harm.

Question 280

Conlaw: Powers of the Federal Government: Legislative Power: Enumerated and Implied Powers (14)

Answer 280

1. Necessary and Proper Power
2. Taxing Power
3. Spending Power
4. Commerce Power
5. War and Related Powers
6. Investigatory Power
7. Property Power
8. No Federal Police Power
9. Bankruptcy Power
10. Postal Power
11. Power Over Citizenship
12. Admiralty Power
13. Power to Coin Money and Fix Weights and Measures
14. Patent/Copyright Power

Question 281

Conlaw: Powers of the Federal Government: Legislative Power: Delegation of Legislative Power (5 Limitations)

Answer 281

BROAD DELEGATION of legislative power to executive officers and/or administrative agencies and even delegation of rulemaking power has been upheld.

LIMITATIONS
1. Power Cannot Be Uniquely Confined to Congress, e.g., the power to declare war, nor the power to impeach.

2. Must Include Intelligible Standards for the Delegate to Follow: but practicably, almost anything will pass as an intelligible standard (e.g., “upholding public interest, convenience, or necessity”)
3. Separation of Powers Limitation: keeps Congress from keeping certain controls over certain delegates.
4. Important Liberty Interests: if the delegate interferes with the exercise of a fundamental right or liberty, the burden falls upon the delegate to show that she has the power to prevent the exercise of the right and her decision was in furtherance of that particular policy.
5. Criminal vs. Civil Punishment: the legislature may delegate its authority to enact regulations, the violation of which are crimes, but prosecution for such violations must be left to the executive and judicial branches. However, agencies may enact and impose civil penalties (fines labeled as civil fines) without prosecution in court.

Question 282

Conlaw: Powers of the Federal Government: Legislative Power: The Speech or Debate Clause–Special Immunity for Federal Legislators

Answer 282

Article I, Section 6 provides that “For any speech or debate in either House [members of Congress] shall not be questioned in any other place.

PERSONS COVERED
Immunity extends to aides who engage in acts that would be immune if performed by the legislator.

Does not extend to state legislators.

SCOPE OF IMMUNITY
Conduct that occurs in the regular course of the legislative process and the motivation behind that conduct are immune from prosecution.

BRIBES EXCLUDED

SPEECHES AND PUBLICATIONS MADE OUTSIDE CONGRESS EXCLUDED

DEFAMATORY STATEMENTS: republication in a press release or a newsletter is not immune

Question 283

Conlaw: Powers of the Federal Government: Executive Power: Domestic Powers: Appointment and Removal of Officers

Answer 283

President is empowered with the advice and consent of the Senate to appoint all AMBASSADORS, other PUBLIC MINISTERS and consuls, JUDGES OF THE SUPREME COURT, and all OTHER OFFICERS OF THE UNITED STATES, whose appointments are not herein otherwise provided for . . . but Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.

APPOINTMENT OF INDEPENDENT COUNSEL (SPECIAL PROSECUTOR): inferior officer. Therefore, under the Appointment Clause, Congress is free to vest the power to appoint a special prosecutor in the judiciary.

NO APPOINTMENTS BY CONGRESS: although Congress may appoint its own officers to carry on INTERNAL LEGISLATIVE TASKS, it may not appoint members of a body with administrative or enforcement powers; such persons are officers of the US and must be appointed by the President with senatorial confirmation unless Congress has vested their appointment in the President alone, in federal courts, or in heads of departments.

REMOVAL
Constitution is SILENT except for ensuring tenure of all Article III judges “during good behavior.”

By President: President can remove high level, purely executive officers (cabinet members) at will, without interference from Congress. However, Congress may provide statutory limitations (e.g., removal for good cause) on the President’s power to remove all other executive appointees.

By Congress:
Limitation on Removal Power: must use impeachment
Limitation on Powers of Removable Officers: Congress cannot give a government employee who is subject to removal from office by Congress any powers that are truly executive in nature.

Question 284

Conlaw: Powers of the Federal Government: Executive Power: Power Over External Affairs

Answer 284

WAR
Although lacking the power to declare or initiate formal war, the President has extensive military powers.

Actual Hostilities
Commander in Chief of armed forces and militia in actual hostilities against the US without a congressional declaration of war. But Congress may limit the President under its power to enact a MILITARY APPROPRIATION EVERY TWO YEARS.

Military Government
includes the establishment of military governments in occupied territories including military tribunals

BROAD FOREIGN RELATIONS POWER: power to appoint and receive ambassadors and make treaties (with advice and consent of the Senate), and to enter into executive agreements.

TREATY POWER
Treaty power is granted to the President “by and with the advice and consent of the Senate, provided 2/3 of the Senators present concur.

Supreme Law once effective

Self Executing: Effective without any implementation by Congress
Non-Self Executing Treaties: not effective unless and until Congress passes legislation to effectuate their ends (President does not have power to effectuate a non-self executing treaty)

Conflict with Congressional Acts: last in time prevails

Conflict with Constitution: treaties are not co-equal with the Constitution.

EXECUTIVE AGREEMENTS
President’s power to enter into agreements with the heads of foreign countries is not expressly provided for in the Constitution; nevertheless, the power has become institutionalized. Can be on any subject as long as they don’t violate the Constitution. Similar to treaties but don’t require the consent of Senate.

Conflicts with Other Governmental Action: Executive agreements that are not consented to by the Senate are not “the supreme law of the land. Conflicting federal statutes and treaties will prevail. However, executive agreements will prevail over state laws.

President has power to settle claims of US citizens against foreign governments through executive agreement.

Question 285

Conlaw: Powers of the Federal Government: Executive Power: Executive Privilege/Immunity

Answer 285

EXECUTIVE PRIVILEGE
Not a constitutional power, but an inherent privilege to protect the communications of the president.

Extent of Privilege
Presidential documents and conversations are presumptively privileged, but the privilege must yield to the need for such materials in a criminal case to which they are relevant and otherwise admissible. This determination may be made by the trial judge after hearing the evidence in camera.

EXECUTIVE IMMUNITY
President has ABSOLUTE IMMUNITY FROM CIVIL DAMAGES based on any action that he took within his OFFICIAL RESPONSIBILITIES (even if peripheral duties) NO IMMUNITY from suit for conduct before taking office.

(Presidential aides immunized when exercising discretionary authority for the President in “sensitive” areas of national concern.)

Question 286

Conlaw: Powers of the Federal Government: Executive Power: Impeachment

Answer 286

1. Persons Subject to Impeachment:
   President, Vice President, and all civil officers of the United States.
2. Grounds
   Treason, bribery, high crimes, misdemeanors.
3. Impeachment by the House
   MAJORITY VOTE in the House is necessary to invoke the charges of impeachment.
4. Conviction by the Senate
   TWO THIRDS VOTE in Senate is necessary to convict.

Question 287

Conlaw: Federal System: Relative Spheres of Federal and State Power: Exclusive Federal Powers vs. Exclusive State Powers

Answer 287

EXCLUSIVE FEDERAL POWERS
1. Power of States Expressly Limited by Constitution such as treaty power, coinage of money, and duty on imports.

2. Inherent Federal Powers such as declaration of war, federal citizenship, naturalization, FEDERAL RELATIONS.

EXCLUSIVE STATE POWERS
Unlimited. Having all powers not prohibited to them by the Constitution. Tenth Amendment. However, given the expansive interpretation of federal powers (commerce clause) little state power is exclusive.

Question 288

Conlaw: Federal System: Relative Spheres of Federal and State Power: Concurrent Federal and State Power–Supremacy Clause

Answer 288

Most governmental power is concurrent.

Supremacy Clause provides that federal law AND THE OBJECTIVES OF FEDERAL LAW is supreme where there is a conflict.

PREEMPTION: a state or local law may fail under the Supremacy Clause, even if it does not conflict with federally regulated conduct or objectives, if it appears that Congress intended to “occupy” the entire field, thus precluding ANY state or local regulation.

EXPRESS PREEMPTION: federal law can expressly preempt state law; will be narrowly construed

IMPLIED PREEMPTION: courts will try to deduce Congress’s intent. If federal laws are comprehensive or a federal agency is created to oversee in that area, preemption will often be found. Court will start with the PRESUMPTION that the historic state police powers are NOT to be superceded unless that was teh CLEAR AND MANIFEST PURPOSE OF CONGRESS.

Question 289

Conlaw: Federal System: Intergovernmental Tax and Regulation Immunities: Federal Taxation and Regulation of State or Local Governments

Answer 289

1. Tax or Regulation Applying to State and Private Entities – Valid (solution is political power)
2. Tax or Regulation that Applies Only to States: Congress may not compel states to enact or enforce a regulatory program or to pay a tax.

EXCEPTION–CIVIL RIGHTS under 14th and 15th Amendments Congress may use its power to restrict state activities.

EXCEPTION–SPENDING POWER CONDITIONS: Congress may puts strings on money.

3. Commandeering State Officials Prohibited: requiring states to regulate their own citizens. However, the Court has allowed Congress to REGULATE THE STATES BY PROHIBITING STATE OFFICIALS FROM PERFORMING CERTAIN ACTS.

Question 290

Conlaw: Federal System: Intergovernmental Tax and Regulation Immunities: State Taxation and Regulation of Federal Government

Answer 290

1. No Direct Tax on Federal Instrumentalities
2. Nondiscriminatory, Indirect Taxes: permissible if they do not UNREASONABLY BURDEN the federal government. (state income taxes on salaried federal employees are valid) (sales and use taxes invalid)
3. State Regulation of Federal Government: no power unless Congress consents (state may not require a post office employee to obtain a state driver’s license in order to drive a mail truck; contractor does not need to acquire a state license to build a government facility on an Air Force base)

Question 291

Conlaw: Federal System: Intergovernmental Tax and Regulation Immunities: Privileges and Immunities Clauses: Article IV–Privileges of State Citizenship

Answer 291

INTERSTATE PRIVILEGES AND IMMUNITIES CLAUSE: the Citizens of each state shall be entitled to all Privileges and Immunities of citizens in the several states. Prohibits discrimination by a state against nonresidents.

1. Corporations and Aliens Not Protected
2. Only “Fundamental Rights” Protected: those involving important COMMERCIAL ACTIVITIES or CIVIL LIBERTIES.
3. Substantial Justification Exception: must show that nonresidents either cause or are part of the problem it is attempting to solve, and there are NO LESS RESTRICTIVE MEANS to solve the problem.
4. Note-Relationship to Commerce Clause: tend to mutually reinforce each other, so need to consider both when evaluating an exam question.

Question 292

Conlaw: Federal System: Intergovernmental Tax and Regulation Immunities: Privileges and Immunities Clauses: Fourteenth Amendment–Privileges of National Citizenship

Answer 292

Prohibits states from denying their citizens the privileges and rights of national citizenship, such as the right to petition Congress for redress of grievances, the right to vote for federal officers, etc.

1. Corporations Not Protected
2. Bill of Rights Not Included: Slaughterhouse cases held that the fundamental rights protected against federal abuse (first 10 Amendments) are NOT PRIVILEGES OR IMMUNITIES OF NATIONAL CITIZENSHIP within the meaning of the 14th Amendment; nor are such other basic rights as the right to live, work, and eat. Thus, the guarantees of the Bill of Rights are protected from state action only by the Due Process and Equal Protection Clauses of the 14th Amendment.
3. Right to Travel protected by Privileges and Immunities Clause

Question 293

Conlaw: State Regulation or Taxation of Commerce: Regulation of Interstate Commerce: Regulation of Commerce by Congress

Answer 293

Congress’s power is plenary and pervasive, but not exclusive.

1. Power of Congress to Supersede or Preempt State Regulation:
   Supremacy Clause makes federal law supreme so that conflicting state laws are void. Further, Congress may preempt an entire field and prevent states from making any laws concerning the area preempted.
2. Power of Congress to Permit or Prohibit State Regulation: states generally may not discriminate against interstate commerce, but congress can give states power to violate the commerce clause. (tax on out of state insurance company allowed because congress had enacted a statute allowing states to regulate in any manner they wanted)

Limitation: can’t violate civil rights

Question 294

Conlaw: State Regulation or Taxation of Commerce: Regulation of Interstate Commerce: State Regulation of Commerce in the Absence of Congressional Action

Answer 294

If Congress has not enacted laws regarding the subject, a state or local government may regulate local aspects of interstate commerce if the regulation:

1. Does NOT DISCRIMINATE against out of state competition to benefit local economic interests; AND
2. Is NOT UNDULY BURDENSOME.

DISCRIMINATORY REGULATIONS

(i) protecting local businesses against interstate competition generally will be invalid
(ii) requiring a business to perform specific business operations in state in order to engage in other business activity within the state
(iii) limiting access to in-state products
(iv) prohibiting out of state wastes (unless congress authorizes)

Exceptions:
1. Necessary to Important Noneconomic State Interest and there are No Reasonable Alternatives Available (importation of live baitfish)

2. State as Market Participant: state can prefer its own citizens in hiring, buying, selling (but must be careful of Privileges and Immunities Clause and have a substantial justification for the regulation) (No “downstream” restrictions)
3. Favoring Government Performing Traditional Government Function (waste disposal–county flow control that required waste haulers to bring waste to state facility rather than private facilities is valid)

NONDISCRIMINATORY LAWS THAT IMPOSE BURDEN–BALANCING TEST

1. Are there less restrictive alternatives?
2. Absence of conflict with other states.
3. Strong deference to states with regard to regulation of internal governance of Corporations.

Question 295

Conlaw: State Regulation or Taxation of Commerce: Regulation of Interstate Commerce: Twenty-First Amendment–State Control over Intoxicating Liquor

Answer 295

1. Intrastate Regulation: importation of liquor and conditions under which liquor is sold or used within the state. However, regs that constitute only an economic preference for local liquor manufacturers may violate the Commerce Clause.
2. Interstate Regulation: transitory liquor is subject to the Commerce Clause, so a state that prohibits transporting liquor to the state would violate the Commerce clause and be unconstitutional.
3. Federal Power: 21st Amendment does not prohibit Congress from controlling economic transactions involving alcoholic beverage under the commerce power. So federal antitrust law would apply to liquor dealers fixing prices.

Question 296

Conlaw: State Regulation or Taxation of Commerce: Power of States to Tax Interstate Commerce: General Considerations

Answer 296

The same general considerations that apply to state regulation of commerce apply to taxation. Pursuant to the Commerce Clause, Congress has complete power to authorize or forbid state taxation affecting interstate commerce. If Congress has not acted, look to see if the tax DISCRIMINATES against interstate commerce. If it does, it is invalid. If it doesn’t, assess whether the burden on interstate commerce outweighs the benefit to the state. Three tests must be met: (i) there must be a SUBSTANTIAL NEXUS between the taxpayer and the state; (ii) the tax must be FAIRLY APPORTIONED; and (iii) there must be a FAIR RELATIONSHIP between the tax and the services or benefits provided by the state.

DISCRIMINATORY TAXES
Unless authorized by Congress, state taxes that discriminate against interstate commerce violate the Commerce Clause. Such taxes may be held to violate the Interstate Privileges and Immunities Clause (Article IV) if they also discriminate against nonresidents of the state, as well as the Equal Protection Clause if the discrimination is not rationally related to a legitimate state purpose.

Finding Discrimination:

1. Tax Singles Out Interstate Commerce
2. Tax with In-State Subsidy (tax on milk dealers with subsidy to instate dairies)

Choosing the Proper Clause (Commerce is not always the best)

1. Interstate Privileges and Immunities Clause (Article IV): if a state or local tax discriminates against a NATURAL PERSON WHO IS A NONRESIDENT, the Article IV clause is the strongest argument because it is more direct than a Commerce Clause Argument.
2. Equal Protection Clause:
   (i) where Congress approves the discrimination it will not violate Commerce clause, but may violate equal protection
   (ii) taxes based on suspect classification or infringing on fundamental rights.

NONDISCRIMINATORY TAXES
The Court reviews nondiscriminatory state and local taxes affecting interstate commerce and balances the state need to obtain the revenue against the burden the tax imposes on the free flow of commerce–an approach similar to the one used for examining nondiscriminatory regulations to see whether they impose an undue burden on interstate commerce.

Factors: Court generally considers 3 factors in determining whether the nondiscriminatory tax is valid:

1. Substantial Nexus between the activity or property taxed and the taxing state. Substantial nexus requires significant or substantial activity within the taxing state.
2. Fair Apportionment according to a rational formula (i.e., the tax should be based on the extent of the taxable activity or property in the state). Otherwise the activity or property would be subject to cumulative tax burdens. (tax on out of state sales on in state business invalid because the business can be subject to taxes on the out of state sales by the other states)
3. Fair Relationship to the services or benefits provided by the state.

Question 297

Conlaw: State Regulation or Taxation of Commerce: Power of States to Tax Interstate Commerce: Use Tax

Answer 297

Use taxes are taxes imposed on the users of goods purchased out of state.

Permissible in Buyer’s State: as long as the use tax is not higher than the sales tax rate.

State May Force Seller to Collect Use Taxes: if the seller has the substantial nexus required by the Commerce Clause. The substantial nexus requirement can be met if the seller engages in some SIGNIFICANT ACTIVITY in the buyer’s state, e.g., maintains offices there. Merely soliciting orders by mail and shipping orders into the state is not sufficient.

Question 298

Conlaw: State Regulation or Taxation of Commerce: Power of States to Tax Interstate Commerce: Ad Valorem Property Taxes

Answer 298

Ad Valorem Property Taxes are taxes based on a percentage of the assessed value of the property in question. Such taxes are generally valid. However, a Commerce Clause issue arises when the property tax moves in interstate commerce. Goods in transit are TOTALLY EXEMPT from taxation. Once the goods come to a halt in the state (i.e., obtain a taxable situs), they may be taxed. Then the issue usually revolves around whether the tax imposes an undue cumulative burden (i.e., apportionment).

NO TAX ON COMMODITIES IN THE COURSE OF INTERSTATE COMMERCE (exempt from tax because each state could tax an item to death)
1. When is Property in the Course of Interstate Commerce?
Interstate commerce begins when the cargo is delivered to an interstate carrier OR the cargo actually starts its journey. Goods being prepared for transit are NOT in the course of interstate commerce. It ends when it REACHES ITS DESTINATION,and thereafter the goods are subject to local tax.
Effect of a Break in Transit: will not destroy the continuity of transit unless the break was INTENDED TO END OR SUSPEND the shipment.
2. No Apportionment Issues

TAX ON INSTRUMENTALITIES USED TO TRANSPORT GOODS INTERSTATE
Validity depends on
(i) whether the instrumentality has acquired a TAXABLE SITUS in the taxing state (i.e., whether there are sufficient contacts with the taxing state to justify the tax)
AND
(ii) since the physical situs of the instrumentalities may change from state to state during the year, whether the value of the instrumentality has been properly APPORTIONED ACCORDING TO THE AMOUNT OF CONTACTS with each taxing state. The taxable situs (contacts) is required by the Due Process Clause to establish the state’s power to tax at all, and apportionment is required by the Commerce Clause to prevent an intolerable burden on Interstate Commerce.

Taxable Situs: an instrumentality has a taxable situs in a state if it receives BENEFITS OR PROTECTION from the state. An instrumentality may have more than one taxable situs, upon each of which state can impose a tax subject to the required apportionment.

Apportionment Requirement: If an instrumentality has only one situs, the domiciliary can tax at full value. If the instrumentality has more than one taxable situs, a tax apportioned on the value of the instrumentality will be upheld if it fairly approximates the average physical presence of the instrumentality within the taxing state. The TAXPAYER HAS THE BURDEN of proving that the instrumentality has acquired a taxable situs outside of his domiciliary state.

UPHELD:

(i) using proportion of miles traveled within the taxing state to the total number of miles traveled by the instrumentality.
(ii) computing the average number of instrumentalities physically present in the taxing state on any one day during the tax year and taxing that portion at full value, as if in the state all year.

double taxation may still exist but should be minimal if proper apportionment formulas used

Question 299

Conlaw: State Regulation or Taxation of Commerce: Power of States to Tax Interstate Commerce: Privilege, License, Franchise, or Occupation Tax

Answer 299

Doing business taxes.
May be measured by a flat amount or by a proportional rate based on revenue derived from the taxing state.

Must meet the basic requirements:

(i) activity taxed must have a SUBSTANTIAL NEXUS TO THE TAXING STATE
(ii) tax must be FAIRLY APPORTIONED
(iii) must NOT DISCRIMINATE against interstate commerce
(iv) must FAIRLY RELATE TO SERVICE PROVIDED by the state

Taxpayer has burden of proof showing that the state’s apportionment formula is unfair.

Question 300

Conlaw: State Regulation or Taxation of Commerce: Power of States to Tax Foreign Commerce: Import-Export Clause

Answer 300

1. State Taxation of “Imports” Prohibited Absent Congressional Consent
2. State Taxation of “Exports” Prohibited

Question 301

Conlaw: Individual Guarantees Against Government or Private Action: Limitations on Power and State Action Requirement: Constitutional Restrictions on Power Over Individuals: Bill of Rights

Answer 301

1. Bill of Rights: first 10 Amendment to the Constitution

Rights applicable to states: Supreme Court has said that only those rights that are “essential to liberty” are applicable to the states through the 14th Amendment.

• -First Amendment guarantees
• -Second Amendment
• -Fourth Amendment
• -some elements of the Fifth Amendment (privilege against self incrimination; compensation for taking of private property for public use)
• -Sixth Amendment
• -Eighth Amendment

Rights not applicable to the states by incorporation:

• -Third Amendment (quartering troops)
• -Fifth Amendment right to a grand jury indictment in criminal cases
• -Seventh Amendment right to a jury trial in civil cases; and
• -Eighth Amendment right against excessive fines

Question 302

Conlaw: Individual Guarantees Against Government or Private Action: Retroactive Legislation: Ex Post Facto Laws

Answer 302

TWO EX POST FACTO CLAUSES
Neither state nor federal government may pass an ex post facto law. Article I, Section 9: federal prohibition; Article I, Section 10: state prohibition.

An ex post facto law is LEGISLATION that RETROACTIVELY alters the CRIMINAL LAW in a SUBSTANTIALLY PREJUDICIAL manner so as to deprive a person of any right previously enjoyed FOR THE PURPOSE OF PUNISHING THE PERSON FOR SOME PAST ACTIVITY.

CRIMINAL: if a law’s purpose is civil rather than punitive, it is not ex post fact law unless its EFFECT is so CLEARLY punitive as to negate the legislature’s intention.

RETROACTIVE ALTERATIONS: if it

(i) Makes criminal an act that WAS INNOCENT WHEN DONE;
(ii) Prescribes GREATER PUNISHMENT for an act than was prescribed for the act when it was committed; or
(iii) REDUCES THE EVIDENCE required to convict a person of a crime from what was required at the time that the act was allegedly committed.

DISTINGUISH PROCEDURAL CHANGES: will not necessarily trigger–a modified law can be applied to a crime committed before the law’s modificatin if the defendant had notice of the possible penalty and the modified law does not increase the burden on the defendant.

INDIRECT APPLICATION TO COURTS: due process prevents courts from retroactively interpreting criminal law in an unexpected and indefensible way.

Question 303

Conlaw: Individual Guarantees Against Government or Private Action: Retroactive Legislation: Bills of Attainder

Answer 303

A bill of attainder is legislative act that INFLICTS PUNISHMENT WITHOUT JUDICIAL TRIAL upon individuals who are designated either by name or in terms of past conduct. Past conduct acts to define who those particular persons are.

1. Two Clauses: both FEDERAL AND STATE GOVERNMENTS are prohibited from passing bills of attainder.
2. Two Requirements Preclude Finding of Bill of Attainder:
   (i) Judicial machinery for trial and punishment of crime
   (ii) Definition of criminal conduct in such general terms as not to ensnare within the definition a single individual or small group for punishment because of past behavior.
3. Nixon Case: Congress passed legislation to authorize government control of the presidential papers and tape recordings of former President Nixon. The Supreme Court held that this was NOT A BILL OF ATTAINDER. The circumstances of the Nixon resignation made him a unique “class of one” as to the need to control his papers. The act was held “nonpunitive” and in pursuance of IMPORTANT PUBLIC POLICY.
4. Draft Registration Case: federal statute denying financial aid to students who failed to register for draft was not a bill of attainder. The law reasonable PROMOTED NONPUNITIVE GOALS and was NOT A LEGISLATIVE PUNISHMENT taken on the basis of any irreversible act, since aid was awarded to those who registered late.

Question 304

Conlaw: Individual Guarantees Against Government or Private Action: Procedural Due Process: Basic Principle

Answer 304

The Due Process Clauses of the Fifth Amendment and the 14th Amendment provide that the government shall not take a person’s life, liberty, or property without due process of law.

WHEN IS INDIVIDUALIZED ADJUDICATION REQUIRED?
There is a right to procedural due process only when the government acts to deprive an INDIVIDUAL of life, liberty, or property. There is no right to individualized adjudication when the government acts generally, even if the action will result in burdening individuals’ life, liberty or property interests.

INTENTIONAL DEPRIVATION VS NEGLIGENT DEPRIVATION
Fair process is required for INTENTIONAL acts of the government or its employees. If an injury is caused to a person through the mere NEGLIGENCE of a government employee, there is no violation of the Due Process Clause.

VIOLATION OF DUE PROCESS: requires more than a mere denial of certain kinds of remedies. Only when the government affords NO remedy or INADEQUATE kinds of remedies may a violation of due process result.

FAIR, NEUTRAL DECISIONMAKER–JUDGE BIAS
The Due Process Clause requires a judge to recuse himself when he has ACTUAL BIAS (e.g., he has a direct, personal, substantial, pecuniary interest in a case) or when there is merely a SERIOUS RISK OF ACTUAL BIAS. A serious risk of actual bias exists when “under a realistic appraisal of psychological tendencies and human weakness, the judge’s interest poses such a risk of actual bias or prejudice that it must be forbidden.

PROTECTION VS. CREATION
The due process provisions do not create property or liberty interests; their purpose is to provide PROCEDURAL SAFEGUARDS AGAINST ARBITRARY DEPRIVATION.

Question 305

Conlaw: Individual Guarantees Against Government or Private Action: Procedural Due Process: Is Life, Liberty, or Property being Taken?

Answer 305

Court must determine whether a LEGITIMATE liberty or property interest is being taken.

LIBERTY
A deprivation of liberty occurs if a person:
(i) Loses significant freedom of action; OR
(ii) Is denied a freedom provided by the Constitution or a statute.

Examples:

1. Commitment to Mental Institution
   (i) Adults: entitled to an adversary hearing before indefinitely committed to a mental institution against their will. State must prove basis for commitment by “clear and convincing” evidence. However, if a person has been acquitted of criminal charges on the basis of insanity defense, the court needs only find grounds for commitment on preponderance of the evidence.
   (ii) Minor Children: screening by a neutral factfinder–mere parental consent is not enough
2. Injury to Reputation
   Not itself a deprivation of liberty or property. However, if governmental acts so injure a person’s reputation that he will have LOST SIGNIFICANT EMPLOYMENT OR ASSOCIATIONAL OPPORTUNITIES, there is a loss of liberty.
3. Exercise of Fundamental Constitutional Rights
   Application: Government Employee’s Freedom of Speech
   A government employee may not be discharged for engaging in CONSTITUTIONALLY PROTECTED SPEECH. If a government employee is discharged for her speech or writing, a hearing must be held to determine whether the speech was protected.

PROPERTY
Includes more than personal belongings and realty, chattels, or money, but an abstract need or desire for the benefit is not enough. There must be a LEGITIMATE CLAIM or ENTITLEMENT to the benefit under state or federal law.

Public Education: There is a property interest in public education when school attendance is required.

Welfare Benefits
One has a property interest in welfare benefits if she has previously been determined to meet the statutory criteria.

Continued Public Employment
If there is a state statute or ordinance that creates a public employment contract, or there is some clear practice or mutual understanding that an employee can be terminated only for “cause,” then there is a property interest; but if the employee holds his position only at the “will” of the employer, there is no property interest in continued employment.

Question 306

Conlaw: Individual Guarantees Against Government or Private Action: Procedural Due Process: What Type of Process is Required? (Mathew v. Eldridge)

Answer 306

While all intentional governmental deprivations of life, liberty, or property require fair process, what constitutes fair process in terms of the timing and scope of the hearing varies according to the circumstances of the deprivation. The court will weight:
(i) The importance of the INDIVIDUAL INTEREST involved;
(ii) The value of specific PROCEDURAL SAFEGUARDS to that interest; and
(iii) The GOVERNMENTAL INTEREST in fiscal and adminstrative efficiency.
In all situations, the Court will probably require FAIR PROCEDURES and an UNBIASED DECISIONMAKER. Normally, the person whose interest is being deprived should also receive NOTICE of the government’s action and have an OPPORTUNITY TO RESPOND BEFORE termination of the interest. However, the court may allow a post-termination hearing in situations where a pre-termination hearing is highly impracticable.

Question 307

Conlaw: Individual Guarantees Against Government or Private Action: Procedural Due Process: Access to Courts–Indigent Plaintiffs

Answer 307

There may often be a fee for government services, including a fee for use of courts (e.g., filing fee). Whether the government must waive such fees for indigents depends on the nature of the rights involved.

1. Fundamental Rights–Waiver Required
2. Nonfundamental Rights–Waiver Not Required

Question 308

Conlaw: Individual Guarantees Against Government or Private Action: Taking Clause: Taking vs. Regulation

Answer 308

While the government must pay compensation for a taking, it does not need to pay for mere regulation of property unless it amounts to a taking. No clear cut formular.

GUILDELINES USED TO DETERMINE IF TAKING OR REGULATION

1. Actual Appropriation or Destruction Property or Physical Invasion–always a taking except in emergencies (no compensation when state ordered destruction of cedar trees that threatened to spread disease to apple orchards)
2. Use Restrictions: Denial of ALL Economic Value of Land–Taking unless principles of nuisance or property law that existed when the owner acquired the land make the use prohibitable (zoning laws adopted after the purchase of lots prohibted erecting any structures on his lots)
3. Use Restrictions: Temporary Denial of All Economic Use–May be a Taking depending on facts.
4. Use Restrictions: Decreasing Economic Value–do not result in a taking AS LONG AS THEY LEAVE AN ECONOMICALLY VIABLE USE FOR THE PROPERTY (consider all the facts and investment expectations of the owner)
5. Building/Development Permits–Transfer of Occupation Rights to Municipality. Taking unless government can show that the condition relates to a legitimate government interest and the adverse impact of the proposed building/development on the area is roughly proportional to the loss caused to the property owner from the forced transfer of occupational rights. (permit to expand retail store conditioned on giving city land for a bike path–taking because not show a sufficient relationship between the need for a bike path and the expansion of the building)
6. Utility Rate Regulation–no taking as long as the rates are not set so low that they are unjust and confiscatory
7. Zoning Ordinances: not a taking even if deny an owner the highest and best use of her land unless: (i) amount to physical appropriation (Loretto), (ii) deny an owner of all economic use (Lucas), (iii) unreasonably interfere with distinct, investment-backed expectations (Penn Central)
8. Remedy–Inverse Condemnation
   Usually if government is going to take land it will condemn the land and pay the owner just compensation. If the government takes the land without compensation, the owner can bring an action for reverse condemnation. If the court decides there was a taking the government will have to pay the owner or terminate the regulation and pay the owner damages.

A person who purchases property after a regulation is in place may still bring a claim.

3. Remedy–Inverse Condemnation

Question 309

Conlaw: Individual Guarantees Against Government or Private Action: Taking Clause: Just Compensation

Answer 309

The owner is entitled to the REASONABLE VALUE of her property AT THE TIME OF THE TAKING–fair market value. The test is ordinarily a LOSS TO THE OWNER, not a gain to the taker. Due process guarantees notice and hearing, administration or judicial, on the amount of compensation, but the hearing need not precede the taking.

Worthless Property–no compensation need be paid.

Question 310

Conlaw: Individual Guarantees Against Government or Private Action: Introduction to Substantive Due Process and Equal Protection: Relationship between Substantive Due Process and Equal Protection

Answer 310

The Due Process Clauses and the Equal Protection Clause guarantee the fairness of laws. Substantive due process guarantees that laws will be reasonable and not arbitrary, and equal protection guarantees that similarly situated people will be treated alike. Both guarantees require the Court to review the SUBSTANCE OF THE LAW rather than the procedures employed.

Substantive Due Process: generally where the law limits the liberty of ALL persons to engage in some activity it is a due process question.

Equal Protection: where a law treats a class of people differently from others

Note–Clauses Not Necessarily Mutually Exclusive, but on MBE they probably won’t have both in one question.

Question 311

Conlaw: Individual Guarantees Against Government or Private Action: Introduction to Substantive Due Process and Equal Protection: Standards of Review

Answer 311

STRICT SCRUTINY (Maximum Scrutiny):
Used when suspect classification or fundamental right is involved.
A law will be upheld only if it is NECESSARY to achieve a COMPELLING or OVERRIDING government purpose.
The court will always consider whether less restrictive means are available.
Burden of proof is on government.

INTERMEDIATE SCRUTINY
Used when a classification based on gender or legitimacy is involved.
A law will be upheld if it is SUBSTANTIALLY related to an IMPORTANT government purpose.
Unclear about burden of proof, but probably on government.

RATIONAL BASIS (Minimal Scrutiny)
Used whenever the other two standards are not applicable.
A law will be upheld if it is RATIONALLY RELATED TO A LEGITIMATE interest (i.e., not arbitrary or irrational).
Burden of proof on challenger.
Law does not need to be the best law–loose fitting laws will work–deference of the court to the legislature.

Question 312

Conlaw: Individual Guarantees Against Government or Private Action: Equal PRotection: Proving Discriminatory Classification

Answer 312

The mere fact that legislation or governmental action has a discriminatory effect is not sufficient to trigger strict scrutiny or intermediate scrutiny. There must be INTENT to discriminate on the part of the government. Intent can be shown in three ways: facial discrimination; discriminatory application; or discriminatory motive.

FACIAL DISCRIMINATION
A law may include a classification on its face. This type of law by its own terms makes a distinction between classes of persons. In such cases, the court merely has to apply the appropriate standard of review for that classification.

Facial Discrimination may be found absent racial language if the law cannot be explained except in racial terms. (establishing districts for an election–such bizarre boundaries could only be explained racially)

DISCRIMINATORY APPLICATION
In some instances a law that appears to be neutral on its face will be applied in different manner to different classes of people. If the person challenging the government action can prove that the government official applying the law had a discriminatory purpose, the law will be invalidated. (law prohibited operating a laundry in wooden buildings without an exemption, but the exemptions were only given to white persons and not chinese)

DISCRIMINATORY MOTIVE
Sometimes a government action will appear neutral on its face and in its application, but will have disproportionate impact on a particular class of persons. Such a law will be found to involve classification and be subject to the appropriate scrutiny if the court finds that the law-making body enacted and maintained the law for a DISCRIMINATORY PURPOSE.  In such cases, the court should admit into evidence statistical proof that the law has a disproportionate impact on one class of persons.  But mere statistical evidence is not sufficient, but must be combined with other evidence of intent to show discriminatory purpose.

Question 313

Conlaw: Individual Guarantees Against Government or Private Action: Equal PRotection: Suspect Classifications

Answer 313

Suspect classifications include race, national origin, and alienage.

RACE AND NATIONAL ORIGIN
Benign Government Discrimination–Affirmative Action: subject to strict scrutiny

1. Remedying Past Discrimination–government has a compelling interest in remedying past discrimination against a race or ethnic minority.
2. Where There Has Been No Past Discrimination by Government–government may still have a compelling interest in affirmative action. However, must be narrowly tailored.

Remedial Justifications:

(i) local private discrimination–remedy allowed
(ii) diversity in public education–no in public schools; yes in colleges because of desire for enhanced learning environment; race is a plus in combination with consideration of the whole candidate, but cannot use quota system or point system where race is given points
(iii) discriminatory legislative apportionment; race can be considered in drawing up new voting districts, but it cannot be the predominate factor, unless the government can show that the plan is narrowly tailored to serve a compelling state interest (eradicating past discrimination is compelling interest; maximizing the number of districts where racial minority members are the majority, which is not a compelling interest.
(iv) private affirmative action–is not state action so not subject to Equal protection clause, but might be subject to statutes enacted under 13th and 14th enabling clauses.

ALIENAGE CLASSIFICATIONS

Federal Classifications: unclear as to the standard of review, but never seem to be subject to strict scrutiny due to Congress’s plenary power over aliens–valid if not arbitrary and unreasonable. (federal Medicare regs could establish a 5 year residency requirement for the benefits)

State and Local Classifications: subject to strict scrutiny; a state law requiring US citizenship for welfare benefits, civil service jobs, or a license to practice law will be struck down because there is no compelling interest justifying the requirement. Exception: Participation in Self Government Process: (notary public-no because only clerical) (police officers and primary and secondary school teachers-yes)

Undocumented Aliens

1. Punitive Laws Against Illegal Alien Adults: Supreme Court has NOT held that they are a suspect class.
2. Education Rights of Alien Children: Court held that state denied equal protection to undocumented alien children when it denied them state-supported primary or secondary education. However, the Court upheld a state statute that permitted a school district to deny tuition free education to any child who lived apart from his parent or lawful guardian if the child’s presence in the school district was for the primary purpose of attending school in the district. The state does not have to consider such a child to be a bona fide resident of the school district.

Question 314

Conlaw: Individual Guarantees Against Government or Private Action: Equal PRotection: Quasi-Suspect Classifications:

Answer 314

Gender and Legitimacy (Intermediate Scrutiny)

GENDER

Intentional Discrimination Against Women: will usually be invalid under the intermediate scrutiny standard because the government is unable to show the “exceedingly persuasive justification” that is required.

Government Interest Must be Genuine–not hypothesized for the purpose of litigation defense. Neither may the government’s justification rely on OVERBROAD GENERALIZATIONS about males and females that will create or perpetuate the legal, social, and economic inferiority of women.

Affirmative Action Benefiting Women: designed to remedy past discrimination will generally be upheld.

Intentional Discrimination Against Men: invalid unless related to an important government interest.

Invalid Discrimination:

• -Denial to admit males to a state university or nursing school.
• -Law that provides that only wives are eligible for alimony.
• -Law that permits unwed mother, but not unwed father, to stop adoption of offspring.
• -Law providing a higher minimum drinking age for men than for women.

Valid Discrimination:

• -Law punishing males but not females for statutory rape–classification was found to be substantially related to important interest of preventing pregnancy of minors.
• -Male only draft registration
• -Law granting automatic US citizenship to nonmarital children born abroad to American mothers, but requiring fathers to take specific steps to establish paternity in order to make such children citizens.

LEGITIMACY CLASSIFICATIONS

No Punitive Purpose

• -Inheritance from Father: state cannot absolutely exclude illegitimate children under intestate laws; state can require that paternity of father be proved before his death since the requirement is substantially related to the important interest
• -Statute of Limitations on Paternity Suits May Be Discriminatory–law invalid that required illegitimate children to bring suit for paternity within six years of birth, but other children didn’t have that requirement (issue was support).

Immigration Preference to Legitimate Children–Permissible
Due to the plenary power over immigration, Court upheld Federal law.

Question 315

Conlaw: Individual Guarantees Against Government or Private Action: Equal PRotection: Other Classifications

Answer 315

All other classifications are reviewed under the rational basis standard and will be upheld unless they bear no rational relationship to any conceivable legitimate government interest. Nevertheless, if the government has no interest in denying a benefit or imposing a burden on a group of persons other than a societal fear or dislike of them, the classification will not meet the standard.

1. Age Not Suspect
2. Wealth Not Suspect: but lack of wealth, or inability to pay a government required fee, cannot be the sole basis upon which a person is deprived of a fundamental constitutional right.

Abortion: Court upheld government refusal to pay for abortions. The Court found that a woman does not have a fundamental constitutional right to obtain abortion services; rather a woman has a right to make a decision to have an abortion without government interference.

Education: not a fundamental right.

Question 316

Conlaw: Individual Guarantees Against Government or Private Action: Fundamental Rights: Right of Privacy includes (8)

Answer 316

1. Marriage
2. Use of Contraceptives
3. Abortion
4. Obscene Reading Material
5. Keeping Extended Family Together
6. Rights of Parents
7. Intimate Sexual Conduct
8. Freedom From Collection and Distribution of Personal Data

Question 317

Conlaw: Individual Guarantees Against Government or Private Action: Fundamental Rights: Right to Vote: Restrictions on Right to Vote

Answer 317

The right of all US citizens over 18 years of age to vote is mentioned in the 14th, 15th, 19th, 24th, and 26th Amendments. It extends to all national and state government elections, including primaries. The right is fundamental; thus restrictions on voting, other than on the basis of age, residency, or citizenship, are INVALID unless they can pass strict scrutiny.

RESTRICTIONS ON RIGHT TO VOTE

1. Residency Requirements: relatively short requirements are valid (30 days) because there is a compelling interest in ensuring that only bona fide residents vote. Longer requirements likely invalid because they discriminate against newer residents without a compelling state interest and thus violate the equal protection clause. Might also violate the right to travel interstate. Congress may override residency requirements in presidential elections.

Members of Armed Forces: right to vote cannot be automatically denied to members of the armed forces stationed at a particular locality. They must be given an opportunity to prove their bona fide residency.

Nonresidents–laws prohibiting them from voting are generally valid.

2. Property Ownership–conditioning right to vote or be a candidate generally invalid unless it is a special purpose election (e.g., water storage district elections).
3. Poll Taxes–prohibited under 24th Amendment and they also violate the equal protection clause.
4. Primary Elections
   State regulation of party primaries subject to First Amendment freedom of association. State can require a person to be registered with a particular party for a certain amount of time before voting in the primary. Also, States may subsidize primaries of major parties.

Question 318

Conlaw: Individual Guarantees Against Government or Private Action: Fundamental Rights: Right to Travel

Answer 318

INTERSTATE TRAVEL

1. Nature of the Right: Individuals have a fundamental right to travel from state to state, which encompasses the right:
   (i) to leave and enter another state, and
   (ii) to be treated equally if they become permanent residents of that state.

Court has been inconsistent in the standard of review used, but rational basis IS NOT a valid standard.

Examples:

• -One year waiting period before a person may receive subsistence welfare payments: INVALID
• -Law providing that persons residing in the state for less than a year may receive welfare benefits no greater than those paid in the state of prior residence: INVALID
• -One year waiting period for state subsidized medical care: INVALID
• -One year waiting period to get a divorce: VALID
• -State requirement that a voter register to vote in a party primary 10 months before the primary election: VALID
• -State requirement that a voter register to vote in a party primary 23 months before the primary election:INVALID

Distinctions between old and new residents: a state law that distinguishes between residents of the state on the sole basis of their length of residency will serve no legitimate state interest.

INTERNATIONAL TRAVEL
Supreme Court has not declared this to be a fundamental right, although it appears that it is protected from arbitrary federal interference by the due process clause of the 5th Amendment.

Right not violated when government refuses to pay Social Security benefits to person who leave the country.

Congress may give the executive branch the power to revoke a passport of a person who conduct in another country presents a danger to US foreign policy.

Treasury Department, with congressional authorization could restrict travel to and from Cuba without violating the 5th Amend.

Question 319

Conlaw: Individual Guarantees Against Government or Private Action: Fundamental Rights:right to Refuse Medical Treatment

Answer 319

Supreme Court has ruled that right to refuse medical treatment is a part of an individual’s liberty that is protected by the 5th and 14th Amendment due process clauses.

However, the Supreme court has NOT ruled that this aspect of liberty is a “fundamental right” and has not explained which standard of review should be used.

VACCINATION
An individual can be made to submit to vaccination against contagious diseases because of the governmental and societal interest in preventing the spread of disease.

REFUSAL OF MEDICAL TREATMENT
Supreme Court has assumed (without making a decision) that a mentally competent adult has the right to refuse lifesaving medical treatment (including lifesaving nutrition).

No Right To Assisted Suicide

Criminal Defendants–may be involuntarily administered antipsychotic drugs to make him competent to stand trial if:

(i) the treatment is medically appropriate
(ii) the treatment is substantially unlikely to cause side effects that may undermine the fairness of the trial, and
(iii) considering less intrusive alternatives, the treatment is necessary to further important governmental trial-related interests.

Question 320

Conlaw: First Amendment Freedoms: Freedom of Speech and Assembly: General PRinciples: Government Speech

Answer 320

GOVERNMENT SPEECH: Free speech clause restricts government REGULATION OF PRIVATE SPEECH; it does not require the government to aid private speech nor restrict the government from expressing its views. The government generally is free to voice its opinions and to fund private speech that furthers its views while refusing to fund other private speech, absent some other constitutional limitations, such as the Establishment Clause or Equal Protection Clause. Because government speech is not subject to first amendment, it is not subject to the various levels of scrutiny. Generally, government speech and funding of speech will be upheld if it is rationally related to a legitimate state interest.

PUBLIC MONUMENTS: A city’s placement of a PERMANENT monument in a public park is government speech and thus is not subject to Free Speech Clause scrutiny, even if the monument was privately donated. Government may refuse to display a monument if it wants.

GOVERNMENT FUNDING OF PRIVATE MESSAGES: In contrast to the government funding of speech to promote its own message, when the government chooses to fund private messages, it generally must do so on a viewpoint neutral basis. (Exception: Funding of Art–have to pick and choose and it will inevitable end up being on the basis of the content of the art.)

Question 321

Conlaw: First Amendment Freedoms: Freedom of Speech and Assembly: Time, Place, and Manner Restrictions–Regulation of Conduct: Public Forums and Designated Public Forums

Answer 321

Public forum property that has historically been open to speech-related activities (streets, sidewalks, parks) is called a public forum. Public property that has not historically been open to speech-related activities but which the government has thrown open for such activities on a permanent or temporary basis, by practice or policy, is called a designated public forum. The government may regulate speech in public forums and designated public forums with reasonable time, place and manner restrictions.

TEST
To be valid, government regulations of speech and assembly in public forums and designated public forums must:
(i) Be CONTENT NEUTRAL (i.e., subject matter neutral and viewpoint neutral);
(ii) Be NARROWLY TAILORED to serve an IMPORTANT government interest; and
(iii) Leave open ALTERNATIVE CHANNELS of communication.

(remember–even if a regulation meets the above conditions, it may still be struck down on other grounds)

EXAMPLES: RESIDENTIAL AREAS

Targeted Picketing: regulation prohibiting was upheld

Charitable Solicitations: subject to reasonable regulation
(i) states cannot require professional fundraisers to disclose to potential donors the percentage of contributions collected over the previous year that were actually contributed to the charity. However, can require fundraiser to disclose her professional status. State has interest in preventing fraud.

Permits: state may not require permits in order for door to door canvassing for noncommercial or nonfundraising purposes.

EXAMPLE: DESIGNATED PUBLIC FORUM
Schools are not usually public forums. But if a school allows private organizations and members to use the school property for meetings when school programs are not in session, the school cannot deny a religious organization permission to use the property for meetings merely because religious topics will be discussed.

INJUNCTIONS
Injunctions that restrict First Amendment activity in public forums are treated differently from generally applicable ordinances because injunctions present a greater risk of censorship and discriminatory application. The test to be used to determine whether an injunction that restricts speech or protest is constitutional depends on whether the injucntion is content neutral.

Content Based–Necessary to a Compelling Interest
Content Neutral–Burdens No More Speech Than Necessary to achieve an Important Government Purpose.

Question 322

Conlaw: First Amendment Freedoms: Freedom of Speech and Assembly: Unprotected Speech–Regulation or Punishment Because of Content: General rule plus list of unprotected speech.

Answer 322

Restrictions on the content of speech must be necessary to achieve a compelling government interest. Very few restrictions on the content of speech are tolerated. The Court allows them only to prevent grave injury. The following is a list of the only reasons for which the Court has allowed content-based restrictions on speech

1. Clear and Present Danger of Imminent Lawlessness
2. Fighting Words
3. Obscenity
4. Defamatory Speech
5. Some Commercial Speech
6. Some Other Compelling Government Interest

Recall that even if a regulation falls within one of the above categories, it will not necessarily be held valid; it might still be void for vagueness or overbreadth.

Question 323

Conlaw: First Amendment Freedoms: Freedom of Speech and Assembly: Prior Restraints

Answer 323

Prior Restraint: any government action that would prevent a communication from reaching the public. Court would rather allow speech, then punish it if it was unprotected. However, the court will uphold prior restraints if some special harm would otherwise result. As with other restrictions on speech, a prior restraint must be narrowly tailored to achieve some compelling or, at least, significant governmental interest.

SUFFICIENCY OF GOVERNMENTAL INTEREST: special societal harm

• -national security
• -preserving fair trial (but compare grand jury prior restraint–law that prohibits a witness from ever disclosing the testimony he gave violates 1st)
• -contractual agreements
• -military circumstances (person on base must get permission before circulating petitions)
• -obscenity

PROCEDURAL SAFEGUARDS: no system of prior restraints will be upheld unless it provides the person whose speech is being restrained certain procedural safeguards. The safeguards arose in the context of movie censorship for obscenity, but the court has held that similar safeguards must be provided in all prior restraint cases.

(i) standards must be NARROWLY DRAWN, REASONABLE, AND DEFINITE so as to include only prohibitable speech;
(ii) if the restraining body wishes to retain dissemination of an item, it must PROMPTLY SEEK AN INJUNCTION; and
(iii) there must be a PROMPT AND FINAL JUDICIAL DETERMINATION of the validity of the restraint.

A number of other cases also provide that the GOVERNMENT BEARS THE BURDEN of proving that speech involved is unprotected.

OBSCENITY CASES
Seizure of Books and Films: may be made only upon probable cause that they contain obscenity or are otherwise unlawful.

–single seizures: only with a warrant issued by a neutral and detached magistrate. Then a prompt, post-seizure determination of obscenity must be available. If other copies of a seized film are not available to the exhibitor, he must be allowed to make a copy so that he may continue showing the film until a final determination has been made.

–large scale seizures to destroy them or block their distribution or exhibition: must be PRECEDED by a FULL ADVERSARY HEARING and a judicial determination of obscenity

Injunction: after seizing material, the government may enjoin its further publication only after ti is determined to be obscene in a FULL JUDICIAL HEARING.

Movie Censorship: time delays are less burdensome for movies than for other forms of expression. Governments can establish censorship boards to screen movies BEFORE they are released in the community, as long as the procedural safeguards mentioned above are followed.

Burden on Government to prove that is the least restrictive alternative to accomplish its goal.

Question 324

Conlaw: First Amendment Freedoms: Freedom of Speech and Assembly: Freedom of the Press

Answer 324

Generally, press has no greater protection than the public.

1. Publication of Truthful Information
2. Access to Trials: right of public and press may be outweighed by other considerations
3. Requiring Members of the Press to Testify Before Grand Juries: valid
4. Interviewing Prisoners: press has no right
5. Business Regulations or Taxes: yes
6. Monetary Damages for Failure to Keep Identity Confidential: yes
7. Broadcasting Regulations: radio and television may be more closely regulated than press because due to the limited number of frequencies available, broadcasters have a special privilege and therefore special duty to give suitable time to matters of public concern.
8. Cable Television Regulation: standard between broadcasts and press
9. Internet Regulation: strict scrutiny–no scarcity of frequencies and little likelihood that internet will invade the privacy of the home.

Question 325

Conlaw: First Amendment Freedoms: Freedom of Association and Belief: Electoral Process

Answer 325

Process: BALANCING TEST used in determining whether a regulation is valid; if the restriction on First Amendment activities is severe, it will be upheld only if it is narrowly tailored to achieve a compelling interest, but if the restriction is reasonable and nondiscriminatory, it will generally be upheld on the basis of the state’s important regulatory interest.

BALLOT REGULATIONS

Signature requirements:

• -interest of running an efficient election supports a requirement that candidates obtain a reasonable number of signatures to get on the ballot.
• -interest in promoting transparency and accountability in elections is sufficient to justify public disclosure of the names and addresses of person who sign ballot petitions

Primary Voting Regulations:

• -state may enforce a party rule that a person be registered as a member of the party within a reasonable amount of time prior to the primary to be able to vote (burden on associational rights not severe)
• -state may require that persons voting in a primary be either registered in that party or as an independent
• -state may not prohibit a party from allowing independent voters to vote in the primary if the party wishes to allow independents to participate (severe burden on associational rights)

Single Party Limitations
–state may prohibit an individual from appearing on the ballot as a candidate of more than one party (interest in ballot integrity and political stability)

Nonpartisan Blanket Primary
–state primary ballot law providing that candidates self-identify their party preference and that the two top vote getters advance to the general election does no ON ITS FACE violate the association rights of political parties.

Party Regulation
–usually invalid

Limits on Election Campaign Contributions: not tested under a strict scrutiny standard; rather it must be “closely drawn” to match a “sufficiently important interest”– an intermediate scrutiny standard.

• -To Political Candidate–valid to stop corruption or the appearance of corruption
• -to Ballot Referendum Committee–invalid
• -Disclosures of Contributors or Recipients of Money–valid unless party can show a reasonable probability that disclosure will cause harm to the party, committee, or private party, they have First Amendment right to refuse to make such disclosures.

Limits on Expenditures: may not limit how much a person spends on own campaign

Compare–Regulations of Core Political Speech must be distinguished from regulations of the process surrounding elections

• -prohibiting any election day campaigning–invalid
• -prohibiting anonymous campaign literature–invalid
• -prohibiting judge candidates from announcing their views–invalid
• -distinguishing political speech from candidate advocacy–ad is core political speech unless it can be interpreted only as an appeal to vote for or against a candidate

Question 326

Conlaw: First Amendment Freedoms: Freedom of Association and Belief: Bar Membership and Public Employment

Answer 326

The government often requires person who accept government jobs to submit to loyalty oaths and refrain from certain conduct

RESTRAINTS ON CONDUCT
If a government employer seeks to fire an employee for speech related conduct, one of two tests will apply, depending on whether the speech involved a matter of public concern.

Matter of public concern: balance individual’s free speech interest with government’s efficient employer interest
Not a matter of public concern–deference to government

Petition Clause Claims treated similarly

Official Duty Exception: no constitutional rights to free speech

Participation in Political Campaigns: federal government MAY prohibit federal executive branch employees from taking part in political campaigns (to further nonpartisanship in administration and to protect employees from being coerced to work for the election of their employers.

Bans on Receiving Honoraria: not valid for “rank and file” employees

Patronage: freedom of political belief and association forbid the hiring, promotion, transfer, or recall of a public employee because of political party affiliation unless a policymaking or confidential position.

LOYALTY OATHS
It is permissible for the federal government to requires employees and other public officers to take loyalty oaths. However, must not be overbroad (prohibit constitutionally protected activities) or vague (have a chilling effect).

DISCLOSURE OF ASSOCIATIONS
Forcing disclosure of First Amendment acitivities as a condition of public employment or bar membership, or other public benefit, may have a chilling effect. State cannot force every prospective government employee to disclose EVERY organizational membership. Such a broad disclosure has INSUFFICIENT RELATION to loyalty and professional competence, and the state has available LESS DRASTIC MEANS to achieve its purpose. The state may inquire only into those activities that are relevant to the position. If the candidate fails to answer relevant questions, employment can be denied.

PRACTICE OF LAW
Regulation of the legal profession may conflict with the freedom of association rights of certain groups because it may impair with their ability to band together to advise each other and utilize counsel in their common interest. State must show a substantial interest, such as evidence of objectionable practices occuring or an actual or clearly threatened conflict of interest between lawyer and client.

Question 327

Conlaw: First Amendment Freedoms: Freedom of Religion: Free Exercise Clause

Answer 327

1. No Punishment (denying benefits to, or imposing burdens on someone on the basis) of Religious Beliefs: court has NEVER found a compelling interest to justify PUNISHMENT.

What constitutes religious belief: does not require recognition of a supreme being and need not arise from traditional or even organized religion. One definition is that the belief must occupy a place in the believer’s life parallel to that occupied by orthodox religious beliefs.

COURTS MAY NOT FIND RELIGIOUS BELIEFS TO BE FALSE.

RELIGIOUS OATHS FOR GOVERNMENTAL JOBS PROHIBITED

STATES MAY NOT EXCLUDE CLERICS FROM PUBLIC OFFICE

NO PUNISHMENT OF RELIGIOUS CONDUCT MERELY BECAUSE IT IS RELIGIOUS.

STATES CAN REGULATE GENERAL CONDUCT–CRIMINAL LAWS AND OTHER REGULATION
Free exercise clause cannot be used to challenge a law of general applicability unless it can be shown that the law was motivated by a desire to interfere with religion.

No Exemptions Required

Unemployment Compensation Cases–some exemptions required: if a person resigns from a job or is forced to quit a job because it conflicts with religious belief, state must pay unemployment compensation if she is otherwise entitled (except for criminal prohibitions)

RIGHT OF AMISH NOT TO EDUCATE THEIR CHILDREN

2. No Punishment of Religious Conduct Solely Because It is Religious
3. State Can Regulate General Conduct–Criminal Laws and Other Regulations
4. Unemployment Compensation Cases–Some Exemptions Required
5. Right of Amish Not to Educate their Children

Question 328

Conlaw: First Amendment Freedoms: Freedom of Religion: Establishment Clause

Answer 328

1. Sect Preference
   If a law or government program includes a preference for some religious sects over others, it will almost certainly be held invalid because the compelling interest test applies:
   To be valid, the law or program must be NARROWLY TAILORED to promote a COMPELLING INTEREST.
2. No Sect Preference (Lemon Test)
   If a government action does not involve a sect preference, the compelling interest test is not used; instead the government action will be valid under the Establishment Clause if it:
   (i) has a SECULAR PURPOSE;
   (ii) has a PRIMARY EFFECT that neither advances nor inhibits religion; AND
   (iii) does not produce EXCESSIVE GOVERNMENT ENTANGLEMENT with religion.

Establishment clause cases can be grouped into three categories:

(i) a limited group of cases unconnected to financial aid or education: good rule of thumb is that a law favoring or burdening religion or a specific religious group in particular will be invalid, but a law favoring or burdening a larger segment that happens to include religious groups will be valid.
- -state legislature can employ a chaplain and begin each legislative day with a prayer–based on history of legislative prayer in America
- -displays of ten commandments may be displayed unless it is shown to have a PREDOMINANTLY RELIGIOUS PURPOSE
- -some holiday displays are permissible–unless only uses religious symbols (nativity scene)
- -absolute right not to work on a Sabbath impermissible (can’t force employers to grant all employees because advances religion)
- -exemption from antidiscrimination laws (nonprofit activities)

(ii) cases involving financial aid to religiously affiliated institutions: lemon test applied more strictly when going to grade or high school than going to college or hospital.

(iii) cases concerning religious activities in public schools
- -prayer and bible reading–invalid (doesn’t matter if voluntary or involuntary
- -posting ten commandments in classroom–invalid
- -release time programs: using school grounds is invalid, but nonpublic building used is valid.
- -accommodation of religious students–on campus meetings: if allow others, must allow religion
- -curriculum controls

Question 329

Contracts: What is a Contract?: Types of Contracts: As to Formation

Answer 329

Contracts are frequently described as express, implied, or quasi. Only the first two are actually contracts, and they differ in the manner in which they are formed.

1. Express Contract: formed BY LANGUAGE, oral or written.
2. Implied in Fact Contract: formed by manifestation of assent other than oral or written language, i.e., BY CONDUCT.
3. Quasi Contract or Implied in Law Contract: not contracts at all. Construed by courts to AVOID UNJUST ENRICHMENT by permitting the plaintiff to bring an action in restitution to recover the amount of the benefit conferred on the defendant.

Question 330

Contracts: What is a Contract?: Types of Contracts: As to Acceptance

Answer 330

1. Bilateral Contracts–Exchange of Mutual Promises
2. Unilateral Contracts–Acceptance by Performance: here the offeror promises to pay upon completion of the requested act by the promisee. Once the act is completed, a contract is formed. In such contracts, there is one promisor and one promisee.
3. Modern View–Most Contracts are Bilateral
   (i) Acceptance by Promise or Start of Performance: Under Article 2 and Restatement 2, unless clearly indicated otherwise by the language or circumstances, ALL offers are “doubtful” or “indifferent” offers, which means they may be accepted by promising or beginning performance.

(ii) Unilateral Contracts Limited to Two Circumstances: Under Article 2 and R2, a traditional unilateral contract occurs in only two situations:
- -where the offeror clearly (unambiguously) indicates that COMPLETION OF PERFORMANCE IS THE ONLY MANNER OF ACCEPTANCE–the offeror is master of the offer and may create the offer in this fashion
- -where there is an OFFER TO THE PUBLIC, such as a reward offer, which so clearly contemplates acceptance by performance rather than a promise that only the performance requested in the offer will manifest acceptance.

Question 331

Contracts: What is a Contract?: Types of Contracts: As to Validity (3)

Answer 331

1. Void Contract: totally without any legal effect from the beginning. It cannot be enforced by either party.
2. Voidable Contract: one or both parties may elect to avoid
3. Unenforceable Contract: otherwise valid but which may not be enforceable due to VARIOUS DEFENSES extraneous to contract formation, such as statute of limitations or Statute of Frauds.

Question 332

Contracts: Mutual Assent–Offer and Acceptance: The Offer: Promise, Undertaking, or Commitment

Answer 332

For a communication to be an offer, it must contain a promise, undertaking, or commitment to enter into a contract, rather than a mere invitation to begin preliminary negotiations; i.e., there must be an INTENT to enter into a contract. The criteria used to determine whether a communication is an offer include the following:

1. Language:
   technical language such as “I offer” is useful but not necessary. Certain language is generally construed as contemplating an invitation to deal, preliminary negotiations: “I quote” “I would consider selling for”
2. Surrounding Circumstances: whether the statement was made in jest, anger, etc. However, if the statement is subjectively made in jest but REASONABLY understood by the hearer to be an offer, it will be treated as an offer because it is interpreted objectively.
3. Prior Practice and Relationship of the Parties
4. Method of Communication
   (i) Use of Broad Communication Media: the broader the communication media, the less likely the court will find it was an offer and the more likely it will be viewed as the SOLICITATION OF AN OFFER (exception–reward offers)
   (ii) Advertisements, etc.: USUALLY construed as mere INVITATIONS FOR OFFERS (but in some cases courts treat as offers where the language can be construed as containing a promise, the terms are certain and definite, and the offeree(s) is clearly identified)
5. Industry Custom

Question 333

Contracts: Mutual Assent–Offer and Acceptance: The Offer: Definite and Certain Terms

Answer 333

An offer must be definite and certain in its terms. The basic inquiry is whether enough of the essential terms have been provided so that a contract including them would be CAPABLE OF BEING ENFORCED. The principle is that the parties make their own contract; the courts do not make it for them. Typically, the following are important: identification of the offeree; definiteness of subject matter; price

IDENTIFICATION OF THE OFFEREE (or a class to which she belongs)

DEFINITENESS OF SUBJECT MATTER: must be certain because a court can only enforce a promise if it can tell with reasonable accuracy what the promise is.

Requirements for Specific Types of Contracts:
1. real estate transactions–land and price terms required

2. sale of goods–quantity term required
   (i) requirements and outputs contract
   - -quantity can’t be unreasonably disproportionate to any stated estimate or any normal or otherwise comparable output or requirement
   - -established business v new business: article 2 deals with this by reading a good faith agreement into the contract
   (ii) reasonable range of choices: offer allowing a person to specify an item within a reasonable range of choices may be sufficiently definite to result in a contract if accepted.
3. Services–Nature of work to be performed is required

MISSING TERMS: court can supply reasonable terms as long as they are consistent with parties intent as otherwise expressed.

Price: except for in a contract for real property, the failure to state the price does not prevent the formation of a contract if the parties intended to form a contract without the price being settled.

(i) Article 2 Gap Filler: the price will be a REASONABLE PRICE AT THE TIME OF DELIVERY if:
- -nothing is said as to price;
- -the price is left to be agreed to by the parties and they fail to agree; or
- -the price is to be fixed by some external factor or third party and it is not so set.
(ii) Article 2: price fixed by party in the future is ok but party must act in GOOD FAITH. If party does not act in good faith, the other party may either cancel the contract or fix a reasonable price herself.

DISTINGUISH–VAGUE TERMS

• -vagueness can be cured by part performance
• -uncertainty can be cured by acceptance (where the uncertainty was due to the offeree being given a choice of alternatives–acceptance is the communication of her choice)
• -focus on the contract rather than the offer (so part performance acts as an acceptance to form a contract that now has definite terms)

TERMS TO BE AGREED ON LATER
If term is a material term, the offer is too uncertain and the court will not supply a term (unless price in sale of goods)

Question 334

Contracts: Mutual Assent–Offer and Acceptance: Termination of the Offer: Termination by Acts of Parties: Termination by Offeror–Revocation

Answer 334

TERMINATION BY OFFEROR–REVOCATION
A revocation is the retraction of an offer by the offeror. A revocation terminates the offeree’s power of acceptance if it is communicated to her BEFORE SHE ACCEPTS.

1. Revocation by Direct Communication: offers made by publication may be terminated by publication or revocation THROUGH COMPARABLE MEANS.
2. Revocation by Indirect Communication: if offeree INDIRECTLY receives (i) correct information, (ii) from a reliable source, (iii) of acts of the offeror that would indicate to a reasonable person that the offeror no longer wishes to make the offer.
3. Revocation Effective When Received (when by publication, it is effective when published)
   - -At common law, a written communication is considered to have been “received” when it comes into the possession of the person addressed (or someone authorized to receive it) or when it is deposited in some place authorized as the place for this or similar communication to be deposited. The communication NEED NOT BE READ by the recipient to be effective.
   - -UCC a person receives notice when it comes to his attention or it is delivered at a place of business through which the contract was made or another location held out by that person as the place for receipt of such communications. An organization receives a communication at the time it is brought (or should have been brought) to the attention of the individual conducting the transaction.

Question 335

Contracts: Mutual Assent–Offer and Acceptance: Termination of the Offer: Termination by Operation of Law (3)

Answer 335

1. Termination by Death or Adjudicated Insanity of Parties: not necessary that death or insanity be communicated to the other party; nonadjudicated insanity only terminates an offer if the other party is aware of incapacity
2. Termination by Destruction of Subject Matter
3. Termination by Supervening Legal Prohibition of Proposed Contract

Question 336

Contracts: Mutual Assent–Offer and Acceptance: Acceptance: Who May Accept

Answer 336

1. Party to Whom Offer is Addressed or Directed
2. Offeree’s Power of Acceptance Cannot be Assigned (exception–option contract because the power to accept is a contract in and of itself and is assignable)
3. Offeree Must Know of Offer

Question 337

Contracts: Mutual Assent–Offer and Acceptance: Acceptance: Acceptance of Offer for Unilateral Contract

Answer 337

COMPLETION OF PERFORMANCE
Most courts hold that an offer to form a unilateral contract is not accepted until performance is completed. The beginning of a performance may create an option so that the offer is irrevocable. However, the offeree is not obligated to complete performance merely because he has begun performance, as only complete performance constitutes and acceptance of the offer.

NOTICE
Generally, the offeree is NOT required to give the offeror notice that he has begun the requested performance, but is required to notify the offeror within a reasonable time after performance has been completed. If a required notice is not given, the contract is formed but the offeror’s duties are discharged for failure of an implied condition subsequent.

However, no notice is required if:

(i) the offeror waived notice; or
(ii) the offeree’s performance would normally come to the offeror’s attention within a reasonable time.

Article 2: must notify upon beginning of performance

Question 338

Contracts: Mutual Assent–Offer and Acceptance: Acceptance: Acceptance of Offer for Bilateral Contract

Answer 338

Unless an offer specifically provides that it may be accepted only through performance, it will be construed as an offer to enter into a bilateral contract and may be accepted either by a promise to perform or by the BEGINNING OR PERFORMANCE.

GENERALLY, ACCEPTANCE MUST BE COMMUNICATED TO THE OFFEROR

(i) Exception: Waiver in Offer: offer provides that acceptance need not be communicated
(ii) Silence as Acceptance: usually not construed as acceptance unless the offeree takes offered benefits–especially if prior dealings between the parties would make silence reasonable

METHOD OF ACCEPTANCE
Unless otherwise provided, an offer is construed as inviting acceptance in ANY REASONABLE MANNER and by and medium reasonable under the circumstances. The offeror is master of the offer and can require an act to signify acceptance.

Offer to Buy Goods for Current or Prompt Shipment (Article 2): is construed as inviting acceptance either by a PROMISE TO SHIP or by CURRENT OR PROMPT SHIPMENT of conforming or nonconforming goods.

Shipment of Nonconforming goods: an acceptance creating a bilateral contract as well as the breach of the contract unless the seller seasonably notifies the buyer that a shipment of nonconforming goods is offered only as an ACCOMMODATION. The buyer is not required to accept accommodation goods and may reject them. If he does, the shipper is not in breach and is entitled to reclaim the accommodation goods, because her tender does not constitute an acceptance of the buyer’s original offer.

4. When Effective–The Mailbox Rule

Question 339

Contracts: Consideration: Elements of Consideration: Bargained For Exchange

Answer 339

This element requires that the promise induce the detriment AND the detriment induce the promise.

GIFT
If either of the parties intended to make a gift, he was not bargaining for consideration and this requirement will not be met.

1. Act or Forbearance by Promisee Must Be of Benefit to Promisor: if the promisor’s motive was to induce the detriment, it will be treated as consideration; if the motive was no more than to state a condition of a promise to make a gift, there is no consideration.
2. Economic Benefit Not Required

PAST OR MORAL CONSIDERATION

1. General Rule–Not Sufficient Consideration: if something was already given or performed before the promise was made, it will not satisfy the “bargain” requirement.
2. Exceptions:
   - -Debts Barred by a Technical Defense (statute of limitations): court will enforce a new promise if it is IN WRITING or has been PARTIALLY PERFORMED. However, the court will enforce the contract only to the extent of the new promise.
   - -Promise to Pay Arising Out of Past Material Benefit–Material Benefit Rule (some courts)

Question 340

Contracts: Consideration: Elements of Consideration: Legal Value: Adequacy of Consideration

Answer 340

Courts of law will normally NOT inquire into the adequacy of consideration (i.e., the relative values exchanged). If a party wishes to contract to sell an item of high market value for a relatively low price, so be it. However, COURTS OF EQUITY may inquire into the relative values and deny an EQUITABLE REMEDY if they find the contract to be unconscionable.

TOKEN CONSIDERATION
If the consideration is only token (something entirely devoid of value), it will usually not be legally sufficient. The courts reason that this indicates a gift rather than a bargained for consideration.

SHAM CONSIDERATION
Parties to a contract often recite that it was made in consideration of $1 or some other insignificant amount that was never intended to be paid. Most courts hold that evidence may be introduced to show that the consideration was not paid and no other consideration was given in its stead.

POSSIBILITY OF VALUE
Where there is a possibility of value in the bargained for act, adequacy of consideration will be found even though the value never comes into existence.

Question 341

Contracts: Consideration: Mutual and Illusory Promises–The Requirements of Mutuality: general rule and cases where promisor has some choice or discretion

Answer 341

Consideration must exist on both sides of the contract; that is, promises must be mutually obligatory. There are many agreements in which one party has become bound but the other has not. Such agreements lack mutuality, i.e., at least one of the promises is “illusory.” If so, consideration fails. However, the requisite mutuality will be found to exist in certain situations even though the promisor has some choice or discretion. Notable among these are the following:

REQUIREMENT AND OUTPUTS CONTRACTS
Consideration exists as the promisor has parted with the legal right to buy or sell the goods he may need from or to another source.

CONDITIONAL PROMISES
Enforceable no matter how remote the contingency is UNLESS the condition is entirely within the promisor’s control.

PROMISE CONDITIONED ON SATISFACTION WITH GOODS
Not illusory because the buyer has a duty to act in good faith.

RIGHT TO CANCEL OR WITHDRAW
Consideration is valid if the right is in ANY WAY RESTRICTED

EXCLUSIVITY AGREEMENTS–BEST EFFORTS IMPLIED (exclusive marketing agreements)

VOIDABLE PROMISES
Not held objectionable on mutuality grounds.

UNILATERAL/OPTIONS CONTRACTS
Enforceable because began performance/paid consideration.

SURETYSHIP PROMISES

RIGHT TO CHOOSE AMONG ALTERNATIVE COURSES

Question 342

Contracts: Consideration: Mutual and Illusory Promises–The Requirements of Mutuality: Suretyship Promises

Answer 342

A suretyship contract involves a promise to pay the debt of another. A suretyship contract is not enforceable unless it is supported by consideration. If a surety is compensated, the requirement of consideration is not much of an issue, because the compensation will serve as consideration for the surety’s promise. If however, the surety is gratuitous, the consideration requirement may cause problems. The timing become important in determining whether adequate consideration is present in a gratuitous surety situation.

Surety Makes Promise Before (or at the Same Time as) Creditor Performs or Promises to Perform–Consideration Present

2. Surety Makes Promise After Creditor Performs or Promises to Perform–Generally No Consideration to Support Surety’s Promise
   (i) Exception–Obtaining Surety Is Condition Precedent
   (ii) Exception–Creditor Gives Additional Consideration to Surety

Question 343

Contracts: Consideration: Mutual and Illusory Promises–The Requirements of Mutuality: Right to Choose Among Alternative Courses

Answer 343

A promise to choose one of several alternatives means of performance is illusory unless EVERY ALTERNATIVE involves SOME LEGAL DETRIMENT to the promisor. However, if the power to choose rests with the PROMISEE or some THIRD PARTY not under the control of the promisor, the promise is enforceable as long as AT LEAST ONE ALTERNATIVE involves some legal detriment.

Selection of Valuable Alternative Cures Illusory Promise

Question 344

Contracts: Requirement that No Defenses Exist: Defenses to Formation: Absence of Mutual Assent: Mutual Mistake as to Existing Fact

Answer 344

When both parties entering into a contract are mistaken ABOUT EXISTING FACTS (not future happenings) relating to the agreement, the contract may be voidable by the adversely affected party if:

(i) the mistake concerns a BASIC ASSUMPTION on which the contract is made;
(ii) the mistake has a MATERIAL EFFECT on the agreed upon exchange; and
(iii) the party seeking avoidance DID NOT ASSUME THE RISK of the mistake.

Assumption of Risk: mutual mistake is not a defense if the adversely affected party bore the risk that the assumption was mistaken. This commonly occurs when one party is in a position to better know the risks than the other party. In other words, to be a defense, it must be a mistake, not simply uncertainty.

Mistake in value generally not a defense.

Question 345

Contracts: Requirement that No Defenses Exist: Defenses to Formation: Public Policy Defenses to Contract Formation–Illegality

Answer 345

If either the CONSIDERATION OR THE SUBJECT MATTER of a contract is illegal, this will serve as a defense to enforcement. Contracts may be illegal because they are inconsistent with the Constitution, violate a statute, or are against public policy as declared by the courts.

1. Some Typical Cases of Illegality
   - -agreements in restraint of trade
   - -gambling contracts
   - -usurious contracts
   - -agreements obstructing administration of justice
   - -agreements inducing breach of public fiduciary duties
   - -agreements relating to torts or crimes
2. Effect of Illegality
   (i) Generally Contract is Void: in a close case a court may sever an illegal clause from the contract.
   (ii) Effect Depends on Timing of Illegality
   If the subject matter or consideration was illegal at the time of the offer, there was NO VALID OFFER. If it became illegal after a valid contract was formed, the supervening illegality operates to DISCHARGE THE CONTRACT because performance has become impossible.
   (iii) Compare–Illegal Purpose
   If the contract was formed for an illegal purpose but neither the consideration nor the subject matter is illegal, the contract is only VOIDABLE by the party who (i) did not know of the purpose OR (ii) knew but did not facilitate the purpose AND the purpose does not involve “serious moral turpitude.” If both parties knew, the contract is VOID and unenforceable.
3. Limitations on Legality Defense
   (i) Plaintiff Unaware of Illegality–may recover on the contract
   (ii) Parties Not in Pari Delicto–less culpable party may recover on theory that the law was designed to protect such a party
   (iii) Licensing–Revenue Raising vs. Protection
   If contract is illegal solely because a party does not have a license
   –License for Revenue Raising–Contract Enforceable
   –License for Protection of Public–Contract Not Enforceable

Question 346

Contracts: Requirement that No Defenses Exist: Defenses Based on Lack of Capacity: Legal Incapacity to Contract

Answer 346

Individuals in certain protected classes are legally incapable of incurring binding contractual obligations. Timely assertion of this defense by a promisor makes the contract VOIDABLE at his election.

CONTRACTS OF INFANTS

(i) Who Is an Infant: age of majority in most states is 18, but in many states a married person under 18 is an adult.
(ii) Effect of Infant’s Contract: voidable by the infant but binding on the adult
(iii) Disaffirmance: any time before or shortly after reaching the age of majority. If a minor chooses to disaffirm, she must return anything that she received under the contract THAT STILL REMAINS at the time of disaffirmance. However, there is no obligation to return any part of the consideration that has been squandered, wasted, or negligently destroyed.
- -exceptions: most states have a small number of statutory exceptions (student loans, insurance contracts, agreements not to reveal employer’s proprietary information)
(iv) Affirmance Upon Majority: Expressly or by conduct (failing to disaffirm within a reasonable time after reaching majority)
(v) liable in quasi-contract for necessities furnished to them

MENTAL INCAPACITY
Voidable: May disaffirm or affirm a contract during lucid period.
Liable in quasi-contract for necessities furnished to them

INTOXICATED PERSONS
Voidable; quasi contract for necessities.

Question 347

Contracts: Requirement that No Defenses Exist: Defenses Based on Lack of Capacity: Duress and Undue Influence

Answer 347

Contract induced by duress or undue influence are VOIDABLE and may be rescinded as long as not affirmed.

DURESS

• -Physical compulsion duress–void (grabs hand and makes you sign)
• -Duress by threat–voidable by the victim
• -Economic duress–generally not a defense

UNDUE INFLUENCE
Unfair persuasion of a party who is under the domination of the person exercising the persuasion or who by virtue of the relationship between them is justified in assuming that the person will not act in a manner inconsistent with his welfare. The elements of undue influence are often described as undue susceptibility to pressure by one party and excessive pressure by the other. Other factors considered are the unfairness of the resulting bargain and the availability of independent advice.

Question 348

Contracts: Requirement that No Defenses Exist: Defenses to Enforcement: Statute of Frauds

Answer 348

In most instances, an oral contract is valid. However, certain agreements, by statute, must be evidence by a WRITING SIGNED BY THE PARTIES SOUGHT TO BE BOUND.

WRITING REQUIREMENT
The Statute of Fraud does not require that the contract be in writing; it requires only that there be one or more writings signed by the person sought to be held liable on the contract that reflect the MATERIAL TERMS of the contract (e.g., in a land sale contract, a description of the land and a price are required; in a contract for the sale of goods, the quantity is required). Thus, a letter (even to a nonparty) or receipt, or even a check indicating a quantity of goods in the memo line, could be sufficient.
–Electronic Record Satisfies Writing Requirement (email)

SIGNATURE REQUIRED
Liberally construed in most courts–can be printed or typed. A parties initials or letterhead may also be sufficient.
–Electronic Signature: may be sufficient (is a matter of fact–no specific technologies required)

AGREEMENTS COVERED
1. Executor or Administrator Promises to Personally Pay Estate Debts

2. Promises to Pay Debt of Another (Suretyship Promises)
   - -must be collateral to another person’s promise to pay and not a primary promise to pay
   - -main purpose must not be pecuniary interest of promisor
3. Promises in Consideration of Marriage
4. Interest in Land
   –sale of land
   –leases for more than one year
   –easements for more than one year
   –fixtures
   –minerals (or the like) or structures if they are to be severed by the buyer (if they are to be severed by the seller, they are not an interest in the land, but are goods)
   –mortgages and most other security liens
   –Items not within the Statute
   Even though the end result of some contracts may be an interest in land, they still do not come within the Statute (contract to build a building; contract to buy and sell real estate and divide profits).
   –Effect of performance on Contracts
   Can still enforce a contract for an interest in land on the PART PERFORMANCE DOCTRINE: conduct that unequivocally indicates that the parties have contracted for the sale of the land will take the contract out of the statute of frauds. Most jurisdictions require at lease two of the following: payment (in whole or in part), possession, and/or valuable improvements.
5. Performance Not Within One Year
   A promise that by its terms CANNOT be performed within one year is subject to the Statute of Frauds. Part performance does not satisfy the Statute of Frauds in this case.
   –Effective Date: date of the agreement
   –Contracts Not Within the Statute: (i) Possibility of Completion within one year; (ii) Right to Terminate Within One Year; (iii) Lifetime Contracts
6. Goods Priced at $500 or More
   - -When Writing Not Required
   (i) Specialty Manufactured Goods: seller has made a SUBSTANTIAL BEGINNING in their manufacture or COMMITMENTS for their purchase before repudiation is received.
   (ii) Admissions in Pleadings or Courts: if party against whom the contract is enforceable makes admissions in pleadings or court, the contract is enforceable.
   (iii) Payment or Delivery of Goods: contract enforceable but not beyond the quantity of the goods accepted or paid for (rather than quantity in contract).
   - -Merchants–Confirmatory Memo Rule: sufficient to satisfy the statute of frauds to bind the sender and will also bind the recipient if he has reason to know of the confirmation contents AND he does not object to it in writing within 10 days of receipt.

EFFECT OF NONCOMPLIANCE WITH STATUTE
Under the majority rule, noncompliance with the Statute of Frauds renders the contract unenforceable at the option of the party to be charged. If the Statute is not raised as a defense, it is waived.

PROMISSORY ESTOPPEL
Sometimes applied in cases where it would be inequitable to allow the Statute of Frauds to defeat a meritorious claim. When a defendant falsely and intentionally tells a plaintiff that the contract is not within the Statute of Frauds or that a writing will be subsequently executed, or when his conduct foreseeably induces a plaintiff to change his position in reliance on an oral agreement, courts may use the doctrine to remove the contract completely from the Statute of Frauds.

REMEDIES IF CONTRACT IS WITHIN STATUTE
Even if no applicable exception for failure to comply with Statute of Frauds, in almost all cases a party can sue for the REASONABLE VALUE of the services or part performance rendered, or the restitution of any other benefit that has been conferred. (UNJUST ENRICHMENT) If the part performance takes the contract out of the statute of frauds, the party can sue for expectation damages on the contract.

CONTRACT MADE BY AGENT
Most states say agent’s authority does not need to be in writing except for contracts involving interest in real property.

7.

Question 349

Contracts: Requirement that No Defenses Exist: Defenses to Enforcement: Unconscionability

Answer 349

The concept of unconscionability allows a court to REFUSE TO ENFORCE A PROVISION OR AN ENTIRE CONTRACT (or to modify the contract) to avoid “unfair” terms. It is sometimes said that there are two types of unconscionability: substantive unconscionability (unconscionability based on terms) and procedural unconscionability (unfair surprise or unequal bargaining power). Most cases deal with procedural unconscionability.

COMMON INSTANCES OF PROCEDURAL UNCONSCIONABILITY

1. Inconspicuous Risk-Shifting Provisions
   Standardized printed form contracts often contain a material provision that seeks to shift a risk normally borne by one party to the other. Examples of such provisions are:
   (i) CONFESSIONS OF JUDGMENT clauses, which are illegal in most states;
   (ii) DISCLAIMER OF WARRANTY provisions; and
   (iii) ADD ON CLAUSES that subject all of the property purchased from a seller to repossession if a newly purchased item is not paid for.

Typically such clauses are found in the fine print (boilerplate) in printed form contracts. Courts have invalidated these provisions because they are INCONSPICUOUS or INCOMPREHENSIBLE to the average person, even if brought to his actual attention.

2. Contracts of Adhesion–Take it or leave it
   Courts will deem a clause unconscionable and unenforceable if the signer is unable to procure necessary goods, such as an automobile, from any seller without agreeing to a similar provision. The buyer has no choice.
3. Exculpatory Clauses
   An exculpatory clause releasing a contracting party from liability for his own INTENTIONAL wrongful acts is usually found to be unconscionable because such a clause is against public policy in most states. Exculpatory for NEGLIGENT acts may be found to be unconscionable if they are inconspicuous, but are commonly upheld if they are in contracts for activities that are known to be hazardous (e.g., ski hill operator).
4. Limitations on Remedies
   A contractual clause limiting liability for damages to property generally will NOT be found to be unconscionable unless it is inconspicuous. However, if a contract limits a party to a certain remedy and that remedy FAILS OF ITS ESSENTIAL PURPOSE, a court may find the limitation unconscionable and ignore it.

TIMING
Unconscionability is determined by the circumstances as they existed AT THE TIME THE CONTRACT WAS FORMED.

EFFECT IF COURT FINDS UNCONSCIONABLE CLAUSE
If a court finds as a matter of law that a contract or a clause of the contract was unconscionable WHEN MADE, the court may: (i) refuse to enforce the contract; (ii) enforce the remainder of the contract WITHOUT the unconscionable clause; or (iii) LIMIT THE APPLICATION OF ANY CLAUSE so as to avoid an unconscionable result.

Question 350

Contracts:Determining the Terms of the Contract: Parol Evidence Rule–Supplementing, Explaining, or Contradicting Terms: Is the Writing an “Integration”?

Answer 350

IS THE WRITING AN INTEGRATION?

The question of whether the writing is an integration of all agreements between the parties can be broken down into two further subquestions:

(i) Is the writing intended as a FINAL expression?
(ii) Is the writing a COMPLETE or PARTIAL integration?

1. Is the writing intended as a final expression?
   If the parties only intended the writing to be a draft, the parol evidence rule will not bar introduction of further evidence. The MORE COMPLETE an agreement appears to be on its face, the more likely it was intended as an INTEGRATION.
2. Is the writing a complete or partial integration?
   If a partial integration, it may be supplemented by proving up consistent additional terms. Note: if the writing has a MERGER CLAUSE reciting that the agreement is complete on its face, this clause strengthens the PRESUMPTION that all negotiations were merged into the written document.
3. Who makes the decision?
   Majority view: a question of fact, but unlike other questions of fact is determined by the judge.
4. How is Determination Made?
   CORBIN TEST: (majority) It takes into account the SPECIFIC CIRCUMSTANCES OF THE TRANSACTION INVOLVED and asks whether parties like these, situated as they are, would naturally and normally include in their writing the extrinsic matter that is sought to be introduced. If people like these under circumstances like these would normally include the extrinsic matter in their writing, it will be excluded under the parol evidence rule. Otherwise the evidence is admissible.

WILLISTON TEST: look only at the face of the document and decide whether contracting parties would include the term that is being sought to be proved. If so then the evidence will be excluded. (it would have been there if they had wanted it to be there)

Question 351

Contract: Determining the Terms of the Contract: Parol Evidence Rule–Supplementing, Explaining, or Contradicting Terms: Extrinsic Evidence Outside the Scope of Rule

Answer 351

Because the rule prohibits admissibility only of extrinsic evidence that seeks to vary, contradict, or add to an “integration,” other forms of extrinsic evidence may be admitted where they will not bring about this result, i.e., they will fall outside the scope of the parol evidence rule.

1. Attacking Validity: acknowledges that the writing reflects the agreement, but asserts that the AGREEMENT NEVER CAME INTO BEING because of any of the following:
   - -formation defects
   - -conditions precedent: contract not effective until something occurs and it failed to occur
2. Interpretation: if there is uncertainty or ambiguity in the written agreement’s terms or a dispute as to the MEANING of those terms, parol evidence can be received to aid the act finder in reaching a correct interpretation of a term.
3. Showing of True Consideration
4. Reformation: reformation is a remedy where the terms are unambiguous but do not constitute the agreement of the parties (mistake)

Question 352

Contract: Determining the Terms of the Contract: Parol Evidence Rule–Supplementing, Explaining, or Contradicting Terms: Article 2 Rule

Answer 352

Article 2 generally follows the parol evidence rules, including the Corbin test, providing that a party cannot contradict a written contract but he may add CONSISTENT ADDITIONAL TERMS unless:

(i) there is a merger clause;
(ii) the courts find from all of the circumstances that the writing was intended as a complete and exclusive statement of the terms of the agreement.

Article 2 also provides that a written contracts terms may be explained or supplemented by the following whether or not the writing appears to be ambiguous:

1. Course of Dealing
2. Usage of Trade (practice or method of dealing regularly observed in a particular business setting)
3. Course of Performance (practices between the parties)

Question 353

Contract: Determining the Terms of the Contract: Other Article 2 Provisions on Interpreting Contracts: Battle of the Forms

Answer 353

Article 2 provides that a contract can be formed even though the terms of the acceptance do not match the terms of the offer. Article 2 has specific rules for determining what terms are included in the contract in such a case, and these rules are dependent on whether both parties to the contract are merchants.

1. Contracts Involving a Nonmerchant–Terms of Offer Govern (unless offeror expressly agrees)
2. Contracts Between Merchants–Additional Terms in Acceptance Usually Included unless:
   (i) they MATERIALLY ALTER the original terms of the offer;
   (ii) the offer EXPRESSLY LIMITS ACCEPTANCE to the terms of the offer; or
   (iii) the OFFEROR HAS ALREADY OBJECTED to the particular terms, or OBJECTS WITHIN A REASONABLE TIME after notice of them is received.
3. Contracts Between Merchants–Different Terms in Acceptance May or May Not be Included (split of authority)
   (i) Some courts treat different terms like additional terms.
   (ii) Some courts employ the KNOCKOUT RULE: conflicting terms are knocked out and gaps are filled by UCC gap fillers.

Question 354

Contract: Determining the Terms of the Contract: Other Article 2 Provisions on Interpreting Contracts: Supplemental (Gap filler) Terms

Answer 354

1. Price: reasonable price at the time for delivery
2. Place of Delivery: seller’s place of business (or if not place of business–seller’s home) (however, if the goods have been identified as the ones to fulfill the contract and both parties know the goods are some other place, that is the place of delivery)
3. Time for Shipment or Delivery: reasonable time
4. Time for Payment: due at the time and place at which the buyer is to receive the goods
5. Assortment: at the buyer’s option (if buyer doesn’t do so seasonably, the other party is excused from any resulting delay and may proceed in a reasonable manner (select assortment) or treat the failure as a breach.

Question 355

Contract: Determining the Terms of the Contract: Other Article 2 Provisions on Interpreting Contracts: Delivery Terms and Risk of Loss

Answer 355

All contracts for the sale of goods require delivery of the goods. Often delivery consists merely of allowing the buyer to take the goods with him. However, circumstance often require some other type of delivery. A contract’s delivery terms are important because they determine when risk of loss passes from the seller to the buyer if the goods are damaged or destroyed.

NONCARRIER CASE
Appears that parties did not intend that the goods be moved by a common carrier. If the SELLER IS A MERCHANT, risk of loss passes to the buyer upon TENDER OF DELIVERY.

CARRIER CASES
Appears that parties intended good be moved by common carrier. Two types of carrier cases: shipment contracts and destination contracts:

Shipment Contract: if the contract authorizes or requires the seller to ship the goods by carrier but does not require him to deliver them at a particular destination, it is a shipment contract and risk of loss passes to the buyer when the good are DELIVERED TO THE CARRIER.

Destination Contract: if the contract requires the seller to deliver the goods at a particular destination, the risk of loss passes to the buyer when the goods are TENDERED TO THE BUYER AT THE DESTINATION.

Common delivery terms:
CIF and C&F: cost, insurance, and freight; cost and freight: mean that price in the contract includes the price of the goods, the cost of shipping them (and in CIF, the cost of insurance for the benefit of the buyer) ALWAYS SHIPMENT CONTRACTS

FAS: free alongside: goods are to be shipped by boat and risk passes to the buyer once the goods are delivered to the dock

FOB: free on board: always followed by a location and seller bears risk and expense of getting the goods to the location ALWAYS DESTINATION CONTRACTS

3. Effect of Breach on Risk of Loss
4. Risk in Sale or Return and sale on Approval Contracts

EFFECT OF BREACH ON RISK OF LOSS

Defective Goods: If goods are so defective that the buyer has a right to reject them, the risk of loss does not pass to the buyer until the defects are CURED or she ACCEPTS the goods in spite of their defects. Note that a buyer generally has a right to reject any defect.

Revocation of Acceptance: If the buyer rightfully revokes the acceptance, the RISK OF LOSS is treated as having rested ON THE SELLER FROM THE BEGINNING to the extent of any deficiency in the buyer’s insurance coverage, the risk of loss at issue between the time of acceptance and the time of revocation of acceptance. However, revocation of acceptance is rightful only if it occurs BEFORE ANY SUBSTANTIAL CHANGE IN CONDITION OF THE GOODS WHICH IS NOT CAUSED BY THEIR OWN DEFECTS. Thus, there can be no revocation of acceptance after a casualty loss to the goods.

RISK IN SALE OR RETURN AND SALE ON APPROVAL

Sale or Return Contract (buyer takes goods for resale but may return them if she is unable to resell them): treated as an ordinary sale and the above rules apply. If the goods are returned, the risk remains with the buyer during transit.

Sale on Approval Contract (buyer takes goods for the use but may return them even if they conform to the contract), the risk of loss does not pass to the buyer until she ACCEPTS. Acceptance may take place by failure to return or notify the seller of an intention to return within the required time. If the buyer decides not to take the goods, return is AT THE SELLER’S RISK.

Question 356

Contract: Determining the Terms of the Contract: Other Article 2 Provisions on Interpreting Contracts: Bilateral Contracts Formed by Performance

Answer 356

Under Article 2, in a contract for the sale of goods, if the offer and acceptance are not mirror images, a contract can be be formed by (1) performance and (2) battle of the forms. In such cases, the contract includes all of the terms on which the writings of both parties agree. Any necessary missing terms are filled in by Article 2 gap fillers.

LAST SHOT RULE: In common law, the contract will include the terms of the last communication sent to the party who performed. Rationale: that communication was a rejection of the last offer and a counteroffer, and the performance was an acceptance of the terms of the counteroffer.

Question 357

Contract: Determining the Terms of the Contract: Other Article 2 Provisions on Interpreting Contracts: Warranties

Answer 357

1. Warranty of Title: any seller of goods warrants that the title transferred is good
2. Warranty Against Infringement: a merchant seller regularly dealing in goods of the kind sold warrants that the goods are free of any patent, trademark, copyright or other infringment.
3. Implied Warranty of Merchantability: a merchant who deals in goods of the kind sold (includes serving of food and drink on premises) Test: fit for the ordinary purpose for which such goods are used

Elements of merchantability:

• -pass without objection in the trade under contract description
• -in the case of fungible goods, be of fair average quality within the description
• -be fit for the ordinary purpose for which such goods are used
• -be of even kind, quality, and quantity within each unit and among all units involved
• -be adequately contained, packaged, or labeled according to contract
• -conform to any promise for affirmations made on the label

4. Implied Warranty of Fitness for a Particular Purpose: any seller has reason to know the particular purpose for which the goods are to be used and that the buyer is relying on the seller’s skill or judgment and the buyer in fact does rely on the seller’s skill and judgment.
5. Express Warranties:Any affirmation of fact or promise made by the seller to the buyer, any description of the goods, and any sample or model creates an express warranty (distinguish statement of value (puffery) or opinion)
6. Disclaimer of IMPLIED Warranties
   Article 2 provides specific methods for the disclaimer of implied warranties of merchantability and fitness:
   –Merchantability: CONSPICUOUSLY MENTIONING MERCHANTABILITY
   –Fitness for a Particular Purpose: CONSPICUOUS WRITING

(Conspicuous: reasonable person would have noticed it)

Article 2 provides general methods for disclaiming implied warranties:

• -by general disclaimer language: “as is”
• -by examination or refusal to examine by buyer
• -by course of dealing, course of performance, or usage of trade

7. Disclaimer of EXPRESS Warranties
   Negation or limitation is inoperative to the extent that such construction is unreasonable.

Parol evidence rule: if oral warranty, but written contract disclaims, the buyer may have trouble proving the warranty unless he can show that he did not intend the writing to be the complete and exclusive expression of the parties agreement or that the disclaimer is unconscionable under the circumstances.

8. Damages for Breach of Warranties

In General–Difference Between Goods Tendered and as Warranted: measured at the time and place of accepted.

Breach of Warranty of Title: buyer may rescind the contract, revoke acceptance of the goods, or sue for damages. The true owner takes the goods, so the value of the goods accepted is zero. So the damages are the value of the goods as warranted.

If great depreciation or appreciation of the goods, the value is measured at the time of the dispossession.

9. To Whom do Warranties Extend:
   Alternative A
   Alternative B
   Alternative C
10. To Whom Do Warranties Extend?

Question 358

Contract: Determining the Terms of the Contract: Modification of Contract Terms: Writing

Answer 358

A written contract can be modified orally. For sale of goods contract, the modification must be in writing if the contract AS MODIFIED falls within the Statute of Frauds ($500 or more)

1. Provisions Prohibiting Oral Modification Not Effective at Common law
2. UCC Recognizes No-Modification Clauses

–Contract between a merchant and nonmerchant: if the provision is on the merchant’s form, it will not be given effect unless is SEPARATELY SIGNED by the nonmerchant.

–Waiver: if the parties attempt to orally modify a contract that requires written modification, it is technically ineffective as a modification, but can operate as a waiver if the other party has changed position in reliance on the oral contract.

–retraction of a waiver: notify before other party has relied detrimentally

Question 359

Contract: Performance and Excuse of Nonperformance: Performance Under Article 2: Seller’s Obligation of Tender and Delivery

Answer 359

Article 2 generally requires A PERFECT TENDER–the delivery and condition of the goods must be exactly as promised in the contract.

NONCARRIER CASES (appears that the parties did not intend that the goods be moved by carrier)

1. Tender of Delivery: seller must put and hold conforming goods at the buyer’s disposition for a time sufficient for the buyer to take possession. The seller must GIVE THE BUYER NOTICE reasonably necessary to enable her to take possession of the goods. The TENDER MUST BE AT A REASONABLE HOUR.
2. Place of Delivery: in the absence of an agreement otherwise, the place of delivery is the SELLER’S PLACE OF BUSINESS, or if he has none, his residence. However, if at the time of contracting, the goods are, to the knowledge of both parties, at some other pace, that place is the place of delivery.

CARRIER CASES: appears that parties intended that a carrier be used to move the goods

1. Shipment Contracts–Where Seller Has Not Agreed to Tender at Particular Destination
   Seller must:
   –put the goods into the hands of a reasonable carrier and make a reasonable contract for their transportation to the buyer;
   –obtain and promptly tender any documents required by the contract or usage of trade or otherwise necessary to enable the buyer to take possession; and
   –promptly notify the buyer of the shipment.
2. Destination Contracts–Where Seller Has Agreed to Tender at Particular Destination
   Seller must, at the destination:
   –put and hold conforming goods at the buyer’s disposition
   –give the buyer any notice of tender that is reasonably necessary and provide her with any documents of title necessary to obtain delivery (through ordinary banking channels is sufficient)

Question 360

Contract: Performance and Excuse of Nonperformance: Performance Under Article 2: Buyer’s Obligation to Pay–Right to Inspect

Answer 360

1. Delivery and Payment

Noncarrier cases: sale is for cash and price is due concurrently with tender of delivery. (GROCERY STORE)

Carrier cases: price is due only at time and place buyer receives the goods

• -shipment case: price is due when the goods are put in hands of carrier (AMAZON)
• -destination case: price is due when goods reach named destination (FOB)

2. Payment by Check: sufficient
3. Installment Contracts: seller can demand payment for each installment if the price can be so apportioned
4. Buyer’s Right of Inspection: buyer has right to inspect before she pays unless contract states otherwise (COD).

But if COD, the fact that the goods are defective does not excuse nonpayment unless the defect appears without inspection.

Expense of inspection must be borne by the buyer but may be recovered from the seller if the goods are nonconforming or defective.

Question 361

Contract: Performance and Excuse of Nonperformance: Conditions–Has the Duty to Perform Become Absolute?: Distinctions between PRomise and Condition

Answer 361

A condition is a promise modifier.

Failure of a condition is not a breach of the contract, but discharges the duty of performance on one of the parties.

Breach of a promise may or may not excuse the other party’s performance. Nonfulfillment of a condition normally will excuse a duty to perform.

If a party’s promise is subject to a condition, there can be no breach of the promise until the condition has been fulfilled.

DETERMINING WHETHER A GIVEN CONTRACTUAL PROVISION IS A PROMISE OR A CONDITION

1. Words of Agreement: usually “if” and “when” indicate a condition whereas “promise” and “agree” indicate a promise.
2. Prior Practices
3. Custom
4. Third-Party Performance: most likely a condition
5. Courts Prefer Promise in Doubtful Situations
6. Reference to Time: courts prefer to interpret words to mark the passage of time rather than to find a condition

PROVISION BOTH CONDITION AND PROMISE

Condition may imply a promise.

Promise to do a something before other parties performance kicks in.

Question 362

Contract: Performance and Excuse of Nonperformance: Conditions–Has the Duty to Perform Become Absolute?: Classification of Conditions (3)

Answer 362

1. Condition Precedent
2. Condition Concurrent
3. Condition Subsequent

Question 363

Contract: Performance and Excuse of Nonperformance: Conditions–Has the Duty to Perform Become Absolute?: Express Conditions

Answer 363

Term express condition normally refers to an EXPLICIT CONTRACTUAL PROVISION. It is an express statement in the contract providing that either

1. a party does not have a duty to perform unless some event occurs or fails to occur; or
2. if some event occurs or fails to occur, the obligation of a party to perform one or more of his duties under the contract is suspended or terminated.

Conditions of satisfaction are common express conditions.

1. Promisor’s Satisfaction as Condition Precedent: issue is by what standard is the satisfaction measure–subjective or objective?
   - -mechanical fitness, utility, or marketability: objective reasonable person
   - -personal taste or judgment–subjective (but still must be good faith)
2. Satisfaction of Third Person as Condition–most courts say actual personal satisfaction–subjective but good faith

Question 364

Contract: Performance and Excuse of Nonperformance: Conditions–Has the Duty to Perform Become Absolute?: Constructive (Implied) Condition

Answer 364

1. Constructive Conditions of Performance: duty of each party to perform is conditioned on the other party either rendering his performance or making a tender of his performance.
2. Constructive Conditions of Cooperation and Notice: parties must cooperate and make appropriate notices
3. Order of Performance: courts will also imply conditions relating to the time for performing under the contract:

Simultaneous Performance Possible–Conditions Concurrent

One Performance Takes Time–Condition Precedent

Question 365

Contract: Performance and Excuse of Nonperformance: Conditions–Has the Duty to Perform Become Absolute?: Have the Conditions been Excused?

Answer 365

1. Excuse of Condition by Hindrance or Failure to Cooperate
2. Excuse of Condition by Actual Breach
3. Excuse of Condition by Anticipatory Repudiation:
   - -applies only when there is a bilateral contract with executory (unperformed) duties on both sides (if the nonrepudiator has already performed then must wait until the time set by the contract and sue on breach. Until then end of the contract period, the repudiator may withdraw the repudiation and perform)
   - -anticipatory repudiation must be unequivocal (not just doubtful)
   - -effect of anticipatory repudiation is to
   (i) treat the repudiation as a total repudiation and sue immediately
   (ii) suspend own performance and wait to sue until performance date
   (iii) treat the repudiation as an offer to rescind and treat the contract as discharged
   (iv) ignore the repudiation and urge the repudiator to perform (not waiving the repudiation–can still sue for breach)
4. Excuse of Condition by Prospective Inability or Unwillingness to Perform
   - -not anticipatory repudiation because that must be unequivocal
   - -conduct must be such that a reasonable person would view as such
   - -effect is to postpone performance until receive adequate assurances from the other party that performance will be forthcoming
   - -retraction of repudiation is available
5. Excuse of Condition by Substantial Performance
   - -generally condition of complete performance may be excused if the party has rendered substantial performance
   - -only applies where there is a constructive (implied in law) condition; will not apply where there is an express condition
   - -if breach is minor then performance has been substantial
   - -if breach is material then performance has not been substantial
   - -inapplicable where breach willful
   - -still damages for difference between perfect performance and substantial performance
   - -doctrine of substantial performance was developed for construction contracts and generally inapplicable to sale of goods (PERFECT TENDER RULE)
6. Excuse of Condition by “Divisibility” of Contract
   - -if a party performs one of the units of a divisible contract, he is entitled to the agreed on equivalent for that unit if he fails to perform the other units
7. Excuse of Condition by Waiver or Estoppel
8. Excuse of Condition by Impossibility, Impracticability, or Frustration

Question 366

Contract: Performance and Excuse of Nonperformance: Has the Absolute Duty to Perform Been Discharged?

Answer 366

1. Discharge by Performance
2. Discharge by Tender of Performance
3. Discharge by Occurrence of Condition Subsequent
4. Discharge by Illegality
5. Discharge by Impossibility
   - -impossibility must be objective (duties could not be performed by anyone)
   - -impossibility must arise AFTER the contract is entered into
   - -part performance entitled to quasi-contract recovery
   - -partial impossibiliy: duty discharged only to that extent
   - -temporary impossibility: suspends duties and no breach for delay
   - -death or physical incapacity of the person NECESSARY to effectuate the contract
   - -supervening illegality
   - -subsequent destruction of subject matter (except contracts to build not discharged) (if risk of loss has passed to buyer–will not apply)
   - -subsequent destruction of means of performance
6. Discharge by Impracticability:
   TEST:
7. extreme and unreasonable difficulty and/or expense; AND
   2 its nonoccurrence was a basic assumption of the parties.
   –shortage of raw materials or inability to convert them into seller’s product because of contingencies such as war, strike, embargo
8. Discharge by Frustration
   (i) there is some supervening act or event leading to the frustration
   (ii) at the time of entering into the contract, the parties did not reasonably foresee the act or event happening
   (iii) the purpose of the contract has been completely or almost completely destroyed by the act or event; and
   (iv) the purpose of the contract was realized by both parties at the time of making the contract
9. Discharge by Rescission
10. Partial Discharge by Modification of Contract
11. Discharge by Novation: novation occurs when a new contract substitutes a new party to receive benefits and assume duties that had originally belonged to one of the original parties under the terms of the old contract.
    - -must have had a previous valid contract
    - -must has had an agreement among all parties (new and old)
    - -must have an intermediate extinguishment of contractual duties of original parties
    - -a valid and enfoceable new contract
12. Discharge by cancellation
13. Discharge by release: must be in writing and supported by new consideration or promissory estoppel elements.
14. Discharge by Substituted Contract: parties enter into a contract that immediately revokes the first contract.
    - -revocation may be express or implied
    - -intent governs
15. Discharge by Accord and Satisfaction
16. Discharge by Account Stated: a contract between parties whereby they agree to an amount as a final balance due from one to the other. This final balance encompasses a number of transactions between the parties and serves to merge all of these transactions by discharging all claims owed.
    - -writing generally not required (unless statute of fraud)
    - -account may be implied
17. Discharge by Lapse
    - -if the contract states time is of the essence, then the lapse will occur immediately, otherwise it will occur within a reasonable time.
18. Effect of Running of Statute of Limitations: only action for breach is barred; the contractual duties are not discharged

Question 367

Contract: Performance and Excuse of Nonperformance: Has the Absolute Duty to Perform Been Discharged?: Discharge by Rescission

Answer 367

1. Mutual Rescission
   - -express agreement between the parties
   - -contract must be executory on BOTH sides
   - -unilateral contract: (new consideration; promissory estoppel; manifestation of intent to make a gift)
   - -partially performed bilateral contracts: enforced but party who performed may be entitled to compensation
   - -may be made orally (unless within Statute of Frauds or $500 or more sale of goods)
2. Unilateral Rescission
   - -must have adequate legal grounds such as mistake, misrepresentation, duress, failure of consideration
   - -if nonassenting party refuses to voluntarily grant rescission the party may file an action in equity to obtain it

Question 368

Contract: Performance and Excuse of Nonperformance: Has the Absolute Duty to Perform Been Discharged?: Partial Discharge by Modification of Contract

Answer 368

If a contract is modified by the parties, it will serve to discharge those terms that were modified, not the entire contract.

1. Mutual Assent: required (unless an action in equity for reformations)
2. Consideration: generally necessary, however, courts usually find it present because each has limited his right to enforce (compromise). Check to see if the benefit is for only one party.

No requirement where modification is only correction of an error in the original contract.

No consideration is needed for the modification of a contract for the sale of goods.

Question 369

Contract: Performance and Excuse of Nonperformance: Has the Absolute Duty to Perform Been Discharged?: Discharge by Accord and Satisfaction

Answer 369

ACCORD
An accord is an agreement in which one party to an existing contract agrees to accept, in lieu of the performance that she is supposed to receive from the other party to the existing contract, some other, different performance.

Requirement of Consideration: generally required. where the consideration is of a lesser value than the originally bargained-for consideration in the prior contract, it will be sufficient if the new consideration is of a DIFFERENT TYPE or if the claim is to be paid to a THIRD PARTY.

Partial payment of original debt: majority rule is that this will suffice if there is a BONA FIDE DISPUTE as to the claim or there is otherwise some alteration, even if slight, in the debtor’s consideration.

Effect of accord: the accord, taken alone will not discharge the prior agreement. Its effect is to SUSPEND the right to enforce it in accordance with the terms of the accord contract.

SATISFACTION
Satisfaction is the performance of the accord agreement and its effect is to discharge the accord contract and the original contract.

EFFECT OF BREACH OF ACCORD BEFORE SATISFACTION

Breach by Debtor: creditor may sue on either the original contract or accord contract.

Breach by Creditor: debtor may

(i) raise the accord agreement as an equitable defense and ask that the original contract be dismissed
(ii) wait until she is damaged and then bring an action at law for damages for breach of the accord contract

CHECKS TENDERED FOR PAYMENT IN FULL
If a monetary claim is UNCERTAIN or is the subject of a BONA FIDE DISPUTE, an accord and satisfaction may be accomplished by a GOOD FAITH tender and acceptance of a check when that check CONSPICUOUSLY STATES that the check is tendered in FULL SATISFACTION.

Question 370

Contract: Breach: Material or Minor Breach–Common Law Contracts: Effect of Breaches

Answer 370

MINOR BREACH
A breach is minor if the obligee gains the substantial benefit of her bargain despite the obligor’s defective performance. The effect of a minor breach is to provide a remedy for the immaterial breach to the aggrieved party. The aggrieved party IS NOT RELIEVED of her duty of performance under the contract.

MATERIAL BREACH
Obligee does not receive the SUBSTANTIAL BENEFIT OF HER BARGAIN as a result of failure to perform or defective performance. Nonbreaching party:
(i) may treat the contract as at an end, i.e, any counterperformance owed by her will be discharged; and
(ii) will have an immediate right to all remedies for breach of the entire contract, including damages.

MINOR BREACH COUPLED WITH ANTICIPATORY REPUDIATION
Nonbreaching party may treat it as a material breach. MUST NOT continue on in performance or a failure to mitigate damages.

MATERIAL BREACH OF DIVISIBLE CONTRACT
recovery is available for substantial performance

Question 371

Contract: Breach: Material or Minor Breach–Common Law Contracts: Determining Materiality of Breach

Answer 371

GENERAL RULE
Apply the following criteria to determine if material or minor breach: 
--amount of benefit received
--adequacy of damages
--extent of part performance
--hardship to breaching party
--negligent or willful behavior
--likelihood of full performance

FAILURE OF TIMELY PERFORMANCE
Assuming that the defaulting party had a duty of immediate performance when his failure to perform occurred, then his failure to perform on time will always be a breach of contract.

1. As Specified by Nature of Contract: unless the contract is such as to make performance on the exact day agreed upon of vital importance, or the contract by its terms provides that time is of the essence, failure to perform at the stated time will not be material.
2. When Delay Occurs: delay at the onset before the delaying party has rendered any part of his agreed on performance is more likely to be considered material than delay where there has been part performance.
3. Mercantile Contracts: timely performance as agreed is important and unjustified delay is material
4. Land Contracts: more delay is required than in mercantile contracts
5. Availability of Equitable Remedy: courts in equity more lenient and will tend to find delay to be minor and award compensation.

MATERIAL BREACH AND SUBSTANTIAL PERFORMANCE: substantial performance means not material breach

Question 372

Contract: Breach: Perfect Tender Rule–Sale of Goods: Acceptance

Answer 372

A buyer’s right to reject under the perfect tender doctrine generally is cut off by acceptance. Under Article 2, a buyer accepts when:

1. After a reasonable opportunity to inspect the goods, she INDICATES TO THE SELLER THAT THEY CONFORM to requirements or that she will keep them, even though they fail to conform;
2. She FAILS TO REJECT within a reasonable time after tender or delivery of the goods or fails to seasonably notify the seller of her rejection; or
3. She does any ACT INCONSISTENT WITH THE SELLER’S OWNERSHIP.

NOTICE: if in connection with rejection, the buyer fails to state that the goods have a particular defect that is ascertainable by reasonable inspection, she CANNOT RELY ON THAT DEFECT to justify rejection or to show seller’s breach IF:

(i) The SELLER COULD HAVE CURED that defect if he had been told about it; or
(ii) BETWEEN MERCHANTS when the SELLER HAS, after rejection, MADE A REQUEST in writing for a full and final written statement of all defects upon which the buyer proposes to rely.

Question 373

Contract: Breach: Perfect Tender Rule–Sale of Goods: Buyer’s Responsibility for Goods After Rejection

Answer 373

1. Buyer Must Hold Goods with Reasonable Care: for a time sufficient to allow seller to remove them. If the seller has no agent or place of business in the market area where the goods are rejected, a MERCHANT buyer has an obligation to obey any reasonable instructions as to the rejected goods. (arrange to reship)
2. When Seller Gives No Instructions on Disposal of Goods within a reasonable time after notice of rejection, the buyer may
   (i) RESHIP the goods to the seller
   (ii) STORE them for the seller’s account, or
   (iii) RESELL them for the seller’s account.
3. When Buyer Resells Goods: she is entitled to have her expense of selling and any commission ordinarily paid in the trade or, if there is none, a reasonable commission not exceeding 10%.

Question 374

Contract: Breach: Perfect Tender Rule–Sale of Goods: Buyer’s Right to Revoke Acceptance

Answer 374

Once goods are accepted, the buyer’s power to reject the goods is generally terminated and the buyer is obligated to pay the price less any damages resulting from the seller’s breach. However, under limited situations, a buyer may revoke an acceptance already made. A proper revocation of acceptance has the effect of a rejection.

1. When Acceptance May be Revoked
   The buyer may revoke her acceptance of goods if the goods have a defect that SUBSTANTIALLY IMPAIRS their VALUE to her AND:

(i) She accepted them on the REASONABLE BELIEF THAT THE DEFECT WOULD BE CURED and it has not been; or
(ii) She accepted them because of the DIFFICULTY OF DISCOVERING DEFECTS or because of the SELLER’S ASSURANCE THAT THE GOODS CONFORMED to the contract.

2. Other Requirements for Revocation of Acceptance
   - –Must occur within a reasonable time after the buyer discovers or should have discovered the defects; and
   - -Before any substantial change in the goods occur that is not caused by a defect present at the time the seller relinquished possession.

Question 375

Contract: Breach: Perfect Tender Rule–Sale of Goods: Exceptions to the Perfect Tender Rule

Answer 375

INSTALLMENT CONTRACTS
Right to reject is much more limited than in a single delivery contract situation. Installment contracts follow a rule akin to the common law substantial performance rule. In an installment contract, an installment can only be rejected if the nonconformity SUBSTANTIALLY IMPAIRS the value of that installment AND CANNOT BE CURED. In addition, the whole contract is breached only if the nonconformity SUBSTANTIALLY IMPAIRS the value of the ENTIRE CONTRACT.

SELLER’S RIGHT TO CURE

1. Single Delivery Contracts

Seller can cure by giving reasonable notice and new tender within time for performance.

Seller’s right to cure beyond original contract time:
Where the buyer rejects goods that seller REASONABLY believed would be acceptable “with or without money allowance,” the seller, upon a reasonable notification to the buyer has a FURTHER REASONABLE TIME beyond the original contract time within which to make a conforming tender.

Seller will be found to have had reasonable cause to believe that the tender would be acceptable if the seller can show that:

(i) trade practices or prior dealings with the buyer led the seller to believe that the goods would be acceptable, or
(ii) the seller could not have known of the defect despite proper business conduct.

2. Installment Contracts:
   No right to reject if the defect can be cured.

Question 376

Contract: Remedies: Nonmonetary Remedies: Specific Performance

Answer 376

If the LEGAL REMEDY IS INADEQUATE, the nonbreaching party may seek specific performance, which is essentially an order from the court to the breaching party to perform or face contempt of court charges. The legal remedy is generally inadequate if the subject matter of the contract is rare or unique. The rationale is that if the subject matter is rare or unique, damages will not put the nonbreaching party in as good a position as performance would have, because even with the damages the nonbreaching party would not be able to purchase substitute performance.

1. Available for Land (always) and Rare or Unique Goods (that are rare or unique at the time performance is due)
2. Not Available for Service Contracts: even if services are rare or unique because
   (i) problems of enforcement (hard to supervise)
   (ii) involuntary servitude which is unconstitutional (13th)
3. Covenant Not to Compete
   Most courts will grant an order of specific performance to enforce a contract not to compete if:
   (i) the services to be performed are unique (thus rendering damages inadequate); and
   (ii) the covenant is reasonable: (to protect a LEGITIMATE INTEREST of the person benefited by the covenant and must be reasonable as to GEOGRAPHIC SCOPE [benefited person’s customer base] AND DURATION [1-2 yrs.]); and
   (iii) the covenant MUST NOT HARM THE PUBLIC.

4. Equitable Defenses Available: 
Because specific performance is an equitable remedy, it is subject to equitable defenses
--laches
--unclean hands
--sale to a bona fide purchaser

Question 377

Contract: Remedies: Nonmonetary Remedies: Nonmonetary Remedies Under Article 2

Answer 377

BUYER’S NONMONETARY REMEDIES

1. Cancellation: if a buyer rejects goods because they do not conform to the contract, one of her options is to simply cancel the contract.
2. Buyer’s Right to Replevy Identified and Undelivered Goods

On Buyer’s Prepayment

(i) The seller becomes INSOLVENT within 10 days after receiving the buyer’s first payment; or
(ii) The goods were purchased for PERSONAL, FAMILY, OR HOUSEHOLD PURPOSES.

Buyer must tender unpaid portion to seller if has only made partial payment.

On Buyer’s Inability to Cover
unable to secure adequate substitute goods after reasonable effort

3. Buyer’s Right to Specific Performance: when the goods are unique

SELLER’S NONMONETARY REMEDIES

1. Seller’s Right to Withhold Goods
   - -If the buyer fails to make a payment due on or before delivery.
   - -when goods sold on credit, but seller learns that buyer is insolvent (but must deliver if buyer tenders cash)
2. Seller’s Right to Recover Goods on Buyer’s insolvency
   - -within 10 days after buyer’s receipt
   - -10 day limitation doesn’t apply if misrepresentation of buyer’s solvency was made within 3 months before delivery
3. Seller’s Right to Recover Shipped or Stored Goods from Bailee
   - -on buyer’s insolvency: may stop delivery of goods in possession of carrier or other bailee when he discovers the buyer is insolvent
   - -on buyer’s breach contract: may stop delivery of goods
   - -delivery of goods may NOT be stopped if the buyer has received the goods or a negotiable document of title OR buyer has received an acknowledgement from a bailee other than the carrier that it is holding the goods for the buyer.
   - -seller’s notification must come in time to give the carrier REASONABLE TIME TO STOP DELIVERY.

SELLER’S ABILITY TO FORCE GOODS ON BUYER LIMITED
to an action for price when the seller is unable to resell the goods to others at a reasonable price

Question 378

Contract: Remedies: Monetary Remedies–Damages: Types of Damages (List 4)

Answer 378

1. Compensatory Damages
2. Punitive Damages
3. Nominal Damages
4. Liquidated Damages

Question 379

Contract: Remedies: Monetary Remedies–Damages: Contracts for Sale of Goods: Buyer’s Damages

Answer 379

SELLER DOES NOT DELIVER OR BUYER REJECTS GOODS OR REVOKES ACCEPTANCE
Basic damages:
1. Difference between the contract price and the market price: OR
2. Difference between the contract price and the cost of buying replacement goods; PLUS
3. Incidental and consequential damages, if any, LESS
4. Expenses saved as a result of the seller’s breach.

In the case of the seller’s anticipatory repudiation, the buyer’s damages are measured as of the time she learns of the breach.

Market price: determined as of the time the buyer learns of the breach and at the place of tender (as opposed to seller’s damages which are at the time for delivery)

Cost of Replacement Goods (Cover): buyer must make a reasonable contract for substitute goods in good faith and without unreasonable delay.

SELLER DELIVERS NONCONFORMING GOODS THAT BUYER ACCEPTS
Warranty Damages: difference between the value of the goods as delivered and the value they would have had if they had been according to the contract, plus incidental and consequential damages.

Notice requirement: buyer must notify the seller within a reasonable time after she discovers or should have discovered the defect or she loses the right to sue.

SELLER ANTICIPATORILY BREACHES CONTRACT
Difference between the market price at the time the buyer learned of the breach and the contract price.

Question 380

Contract: Remedies: Monetary Remedies–Damages: Employment Contracts

Answer 380

BREACH BY EMPLOYER
Irrespective of when breach occurs, the standard measure of damages is the FULL CONTRACT PRICE.

BREACH BY EMPLOYEE

1. Intentional: what it COSTS TO REPLACE the employee; modern view allows employee to offset any monies due from work done to date.
2. Unintentional: same as for intentional, but employee may have a right to quasi-contractual recovery for work done to date. (illness)

Question 381

Contract: Remedies: Monetary Remedies–Damages: Construction Contracts

Answer 381

BREACH BY OWNER

1. Breach Before Construction Occurred: PROFITS
2. Breach During Construction: PROFITS plus COSTS incurred to date
3. Breach After Construction Completed: Contract price plus interest.

BREACH BY BUILDER

1. Breach Before Construction Started: COST OF COMPLETION–amount above the contract price that it will cost to complete plus reasonable compensation for delay in performance.
2. Breach During Construction:
   (i) Cost of completion plus reasonable compensation for delay in performance
   (ii) UNDUE ECONOMIC WASTE: difference between what the owner would have received and what the owner received
3. Breach by Late Performance: lost use (loss of reasonable rental value) or interest on the value of the building as a capital investment (if lost use not easy to determine)

Question 382

Contract: Remedies: Monetary Remedies–Damages: Avoidable Damages (Mitigation)

Answer 382

Nonbreaching party cannot recover avoidable damages. Generally a party can recover the expenses of mitigation.

1. Employment Contracts:
   Employee under a duty to use REASONABLE CARE in finding a position of the same kind, rank, and grade in the same locale. The burden is on the employer to show that such jobs were available.
2. Contracts for Sale of Goods
   Seller generally cannot bring an action against the buyer for the full contract price unless the goods cannot be resold at a reasonable price or were damages or lost when the risk of loss was on the buyer.
3. Manufacturing of Contracts and Construction Contracts
   Manufacturer or builder has duty to NOT CONTINUE WORK after the breach. However, if the facts are such that completion of the manufacturing or construction project will decrease rather than increase damages, the manufacturer or builder has a right to continue.

Question 383

Contracts: Remedies: Restitution

Answer 383

Restitution is to prevent UNJUST ENRICHMENT where one has conferred a benefit on another without gratuitous intent and may be available even when a contract is unenforceable or where there is no contract at all. This is referred to as an action for an IMPLIED IN LAW contract or an action in QUASI-CONTRACT.

When parties are in a CLOSE RELATIONSHIP it is usually presumed that the benefits were given gratuitously and the party claiming relief bears the burden of showing that they were conferred with an expectation of being paid therefor.

The measure of restitution is the VALUE OF THE BENEFIT CONFERRED (or the detriment suffered by the plaintiff).

SPECIFIC APPLICATIONS

1. When Contract Breached
   - -If the nonbreaching party has not fully performed, he may choose to rescind the contract and sue for restitution to prevent unjust enrichment. (desirable in a LOSING CONTRACT where value of goods and services is higher than the actual contract price)
   - -If nonbreaching party has fully performed, he is limited to damages under the contract.

–breach by plaintiff: sometimes allowed, but not if intentional breach

Article 2: breaching buyer wants restitution for advance payments or deposit

• -Seller may keep advance payments totaling 20% of purchase price or $500, whichever is less. Balance must be returned to buyer.
• -if there is a liquidated damages clause, the seller is required to refund only the excess of the buyer’s payments over the amount of liquidated damages
• -if the seller is able to prove greater than 20% of actual damages, then can recover them

Question 384

Contracts: Remedies: Statute of Limitations under UCC

Answer 384

States have enacted different statutes of limitation for contract actions in general, and some have specific limitations periods for specific types of contracts. For sales cotnracts, the UCC provides for a FOUR YEAR STATUTE of limitations

PARTIES MAY AGREE TO A SHORTER PERIOD

ACCRUAL OF ACTION: statutory period begins to run when the cause of action accrues (when a party can bring suit–which is when the breach occurs). The statutory begins to run regardless of whether the aggrieved party knows about the breach.

BREACH OF WARRANTY ACTIONS
For a breach of warranty, the breach occurs and the limitations period begins to run upon DELIVERY of the goods. This is true even if the buyer does not discover the breach until much later.

–if there is an express warranty that extends to future performance, then four year period does not begin to run until the buyer should have discovered the breach

–implied warranties are breached on delivery

Question 385

Contracts: Rights and Duties of Third Parties to the Contract: Third Party Beneficiaries: Which Third-Party Beneficiaries Can Sue?

Answer 385

Intended Beneficiaries have rights under the contract.
Incidental Beneficiaries do not have rights under the contract.
Creditor Beneficiary: if the promisee’s purpose in extracting the promise was to discharge an obligation owed to the third party
Donee Beneficiary: if the promisee’s purpose in extracting the promise was to confer a gift on the third party

TEST to determine whether intended beneficiary:
To whom is performance to be given ACCORDING TO THE LANGUAGE OF THE CONTRACT?
In other words, was the purpose of the contract to confer a benefit on herself or on another? If on another then we have a third party beneficiary.

DETERMINING IF THE PROMISEE PRIMARILY INTENDED THE CONTRACT TO BE FOR THE THIRD PARTY’S BENEFIT
–is the third party expressly designated in the contract? (But it is not necessary for the beneficiary to be identified or named. She need only be identifiable at the time the performance is due.)

–is the performance to be made directly to the third party?

–does third party have any RIGHTS under the contract?

–does third party stand in a RELATIONSHIP to the promisee that one could infer that the promisee wished to make an agreement for the third party’s benefit?

Question 386

Contracts: Rights and Duties of Third Parties to the Contract: Third Party Beneficiaries: When do the Rights of the Beneficiary Vest?

Answer 386

An intended beneficiary can enforce a contract only after his rights have vested. This becomes important when the original parties to the contract take actions that affect the third party beneficiary. The general rule for BOTH creditors and donee beneficiaries is that their rights vest when the beneficiary:

1. Manifests ASSENT to the promise in a manner invited or requested by the parties;
2. Brings SUIT to enforce the promise; or
3. Materially CHANGES POSITION in justifiable reliance on the promise.

Significance of vesting: before the intended third party beneficiaries rights vest, the promisor and promisee are free to modify their contract–including removing the third party beneficiary altogether–without consulting the third party. Once rights vest, they must get his consent to modify.

Question 387

Contracts: Rights and Duties of Third Parties to the Contract: Third Party Beneficiaries: What Are the Rights of the Third-Party Beneficiary and the Promisee?

Answer 387

THIRD PARTY BENEFICIARY VS. PROMISOR
If the promisor fails to perform, the third party beneficiary may sue the promisor on the contract, subject to defenses as follows:

1. Promisor’s Defenses Against Promisee:
   Because the third-party beneficiary’s rights are derivative, the promisor may raise any defense against the third party beneficiary that he would have against the promisee, including: lack of assent, lack of consideration, illegality, impossibility, and failure of a condition.
2. Promisee’s Defenses Against Third Party Beneficiary If Promise Not Absolute
   Whether the promisor can use any of the defenses that the promisee would have against the third party beneficiary depends on whether the promisor made:
   –an absolute promise to pay (I will pay T $500 in exchange for your services) (CANNOT assert the promisee’s defenses); OR
   –only a promise to pay what the promisee owes the beneficiary (I will pay T whatever you owe him in exchange for your services) (CAN assert the promisee’s defenses).

THIRD PARTY BENEFICIARY VS. PROMISEE
If the promisor fails to perform vis-a-vis the third party beneficiary, whether the third party beneficiary may sue the promisee depends on whether the third party beneficiary is a donee beneficiary or a creditor beneficiary.
–DONEE: generally may NOT sue the promisee because generally there is no right to sue for nondelivery of a gift
–CREDITOR: can sue the promisee on the underlying obligation that the promisor’s performance was meant to discharge

Rights of creditor beneficiary are cumulative: she can sue BOTH the promisor and her own debtor (but can only obtain one satisfaction).

Exception: detrimental reliance–if the promisee tells the donee beneficiary of the contract and should FORESEE RELIANCE by the beneficiary and the beneficiary REASONABLY RELIES to her detriment, the beneficiary can sue the promisee directly under a promissory estoppel/detrimental reliance theory, even though the beneficiary cannot sue the promisee as a third party beneficiary.

PROMISEE VS. PROMISOR

1. Donee Beneficiary Situation
   If the promisor fails to perform and the contract involves a donee beneficiary, it was once said that the promisee could not sue the promisor at law. The rationale was that because the donee beneficiary had no cause of action against the promisee, there was no damage suffered. Today, however, the MAJORITY VIEW is that the PROMISEE HAS A CAUSE OF ACTION. Because the promisee hardly ever suffers any actual damage, however, she will usually receive only nominal damages. Hence, most courts would resolve this problem by allowing specific performance in this situation.
2. Creditor Beneficiary Situation
   If the promisor fails to perform as to a creditor beneficiary and a promisee has had to pay the beneficiary on the existing debt, the promisee MAY RECOVER against the promisor. If the debt has not yet been paid by the promisee to the third party, the promisee can compel the promisor to pay in a SPECIFIC PERFORMANCE action.

Question 388

Contracts: Rights and Duties of Third Parties to the Contract: Assignment of Rights and Delegation of Duties: Assignment of Rights

Answer 388

Generally ALL contractual rights may be assigned.

EXCEPTIONS:
–assigned rights would substantially change obligor’s duty (personal services contracts where performance involves personal characterisitics of the obligor) (requirements and outputs right to receive ok if good faith)

–rights assigned would substantially alter obligor’s risk

–assignment of future rights (operates only as a promise to assign the right when it arises)

–assignment prohibited by law

–express contractual provisions against assignment

1. Assignment of the contract: absent circumstances suggesting otherwise, a clause prohibiting the assignment of “the contract” will be construed as barring ONLY THE DELEGATION OF assignor’s DUTIES.
2. Assignment of rights under the contract: a clause prohibiting the assignment of CONTRACTUAL RIGHTS generally does no bar assignment, but merely gives the obligor the right to sue for breach if an assignment is made. In other words, the assignor has the power but not the right to assign. (however, if the clause provides that any attempt to assign will be VOID, assignment will be ineffective)

Question 389

Contracts: Rights and Duties of Third Parties to the Contract: Assignment of Rights and Delegation of Duties: Delegation of Duties

Answer 389

Generally, ALL CONTRACTUAL DUTIES may be delegated to a third person.

EXCEPTIONS:

• -duties involving personal judgment and skill
• -special trust in delegator
• -change of obligee’s expectancy
• -contractual restriction on delegation given strict effect

For effective delegation, no special formalities necessary. May be written or oral. However, delegator must manifest a PRESENT INTENTION to make the delegation.

RIGHTS AND OBLIGATIONS OF PARTIES

1. Delegator will remain liable on his contract even if the delegate expressly assumes the duties (secondarily liable as a surety). However, if the obligee expressly consent to the transfer of duties, it will be treated as an offer of novation.
2. Delegate’s liability turns on whether there is:
   - -a mere delegation: a creation of power in another to perform the delegator’s contract duty. The nondelegating party to the contract (the obligee) cannot compel the delegate to perform, as the latter has not promised to perform); Or
   - -an assumption of duty: occurs when the delegate promises that she will perform the duty delegated and the PROMISE IS SUPPORTED BY CONSIDERATION or it equivalent.

Unless a contrary intention appears, words assigning “the contract” or “all my rights under the contract” are to be construed as including an ASSUMPTION of the duties; i.e., they imply a promise by the assignee to assume the duties of performance.

Question 390

Crimlaw: Jurisdiction and General Matters: Jurisdiction: Federal Criminal Jurisdiction

Answer 390

The authority of the federal government to CREATE substantive criminal law falls into the following broad categories

1. Power Over Federally Owned or Controlled Territory (including federal enclaves–naval yards, national parks, federal courthouses): extensive
2. Power Over Conduct Occurring Within a State: limited by the requirement that each statute be founded upon an express or implied constitutional grant of authority
3. Power over United States Nationals Abroad: federal criminal statutes may reach conduct by citizens while on foreign soil by express provision
4. Power over Conduct on Ships or Airplanes: federal maritime jurisdiction extends to conduct by all persons aboard American ships or aircraft when on or over the high seas or even in foreign waters or ports.

Question 391

Crimlaw: Jurisdiction and General Matters: Jurisdiction: State Criminal Jurisdiction

Answer 391

Unlike the federal government, each state has inherent authority by virtue of its “police power” to regulate its internal affairs for the protection or promotion of the health, safety, welfare, and morals of its citizens.

SITUS OF THE CRIME
At common law, and in those states that have not expanded jurisdiction by statute, only the state in which the situs of the crime is located has jurisdiction over the crime. (the place where the proscribed act takes place or the place of the harmful results)

MODERN BASES FOR JURISDICTION
A person is subject to prosecution in a state for an offense that he commits within or outside that state, by his own conduct or that of another for which he is legally accountable, under the following conditions:

1. OFFENSE IS COMMITTED WHOLLY OR PARTLY WITHIN STATE (partly: element of offense; result constituting such an element); OR
2. CONDUCT OUTSIDE THE STATE THAT CONSTITUTES AN ATTEMPT OR CONSPIRACY to commit an offense within the state PLUS AN ACT INSIDE THE STATE; OR
3. CONDUCT WITHIN THE STATE CONSTITUTING AN ATTEMPT, SOLICITATION, OR CONSPIRACY TO COMMIT, IN ANOTHER JURISDICTION, AN OFFENSE under the laws of both the state and such other jurisdiction; OR
4. OMISSION OF PERFORMANCE OF A DUTY imposed by the law of a state is committed within that state, regardless the location of the offender at the time of the omission.

Question 392

Crimlaw: Jurisdiction and General Matters: Merger: Common Law Rule

Answer 392

1. Merger of Misdemeanor into Felony: if a person engaged in conduct constituting both a felony and a misdemeanor, she could only be convicted of the felony.
2. No Merger Among Offenses of Same Degree: if the same act or a series of acts that were all part of the same transaction constituted several felonies (or several misdemeanors), there was no merger of any of the offenses into any of the others.

Question 393

Crimlaw: Jurisdiction and General Matters: Merger: Current American Rule–No Merger

Answer 393

EXCEPTIONS to the American no merger rule:

1. Merger of Solicitation or Attempt into Completed Crime
2. Merger of Lesser included Offenses Into Greater Offenses
   Happens when all the elements of the lesser are included in the greater. Constitutionally required by prohibition against double jeopardy.

However, no double jeopardy is a statute provides multiple punishments for the same act when the punishments are imposed at a single trial.

Question 394

Crimlaw: Essential Elements of a Crime: Physical Act: Omission as an “Act”

Answer 394

Although most crimes are committed by an affirmative action rather than by nonaction, a defendant’s FAILURE TO ACT will result in criminal liablity provided 3 requirements are satisfied:

1. Defendant has Legal Duty to Act: can arise from
   - -statute
   - -contract
   - -relationship
   - -voluntary assumption of care
   - -creation of peril
2. Defendant has Knowledge of Facts Giving Rise to Duty
3. Duty was Reasonably Possible to Perform (or get help to perform it)

Question 395

Crimlaw: Essential Elements of a Crime: Physical Act: Possession as an Act

Answer 395

Criminal statutes that penalize the possession of contraband generally require only that the defendant have control of the item for a long enough period to have an opportunity to terminate the possession. Possession need not be exclusive to one person, and possession also may be “constructive,” meaning that actual physical control need not be proved when the contraband is located in an area within the defendant’s “dominion and control.”

State of Mind Requirement: must be aware of his possession of the contraband, but need not be aware of its illegality or true nature. However, many states and the MPC add a knowingly state of mind element to possession crimes which requires the defendant know the identity or nature of the item possessed. A defendant may not consciously avoid learning the true nature of the item posses; knowledge may be inferred from a combination of suspicion and indifference to the truth.

Question 396

Crimlaw: Essential Elements of a Crime: Mental State: Specific Intent

Answer 396

If the definition of a crime requires not only the doing of an act, but the doing of it with a specific intent or objective, the crime is a specific intent crime.

Significance: it is necessary to identify specific intent crimes because:

• -need for proof: the existence of a specific intent cannot be conclusively imputed from the mere doing of the act, although the manner in which the act was done may provide circumstantial evidence of intent
• -applicability of certain defenses: some defenses, such as voluntary intoxication and unreasonable mistake of fact, apply only to specific intent crimes

MAJOR SPECIFIC INTENT CRIMES

1. Solicitation: intent to have the person solicited commit a crime
2. Attempt :intent to complete the crime
3. Conspiracy: intent to have the crime completed
4. First degree premeditated murder: premeditated intent to kill
5. Assault: intent to commit a battery
6. Larceny and robbery: intent to permanently deprive another of his interest in the property taken
7. Burglary: intent at the time of entry to commit a felony in the dwelling of another
8. Forgery: intent to defraud
9. False pretenses: intent to defraud
10. Embezzlement: intent to defraud

Question 397

Crimlaw: Essential Elements of a Crime: Mental State: Strict Liability Offenses

Answer 397

A strict liability offense is one that does not require awareness of all of the factors constituting the crime. Generally, the requirement of a state of mind is not abandoned with respect to all elements of the offense, but only with regard to one or some of the elements. The significance of a strict liability crime is that CERTAIN DEFENSES, such as mistake of fact ARE NOT AVAILABLE.

1. Identification of Strict Liability Offenses: also know as public welfare offenses, are generally regulatory offenses that implicate public health and safety. They generally involve a relatively low penalty and are not regarded by the community as involving significant moral impropriety.
2. Constitutionality: majority view.
   Exception: court struck down a violation of due process an LA munnicipal ordinance imposing strict liability for failure to register as a felon. The key factor in the decision was the absence of circumstances that might move one to inquire as to the necessity of registration.

Question 398

Crimlaw: Essential Elements of a Crime: Mental State: Model Penal Code Analysis of Fault

Answer 398

MPC advocates the elimination of the ambiguous common law distinctions between general and specific intent. Instead it proposes 4 categories:

Purposely: a person acts purposely with respect to his conduct when it is his conscious object to engage in certain conduct or to cause a certain result.

Knowingly: a person acts knowingly with respect to the nature of his conduct when he is aware that this conduct is of that nature or that certain circumstances exist. He acts knowingly with respect to the result of his conduct when he knows that his conduct will necessarily or very likely cause such a result. Conduct performed knowingly also satisfies the mental state of a statute that requires willful conduct.

Recklessly: a person acts recklessly when he CONSCIOUSLY DISREGARDS A SUBSTANTIAL OR UNJUSTIFIABLE RISK that circumstances exist or that a prohibited result will follow, and this disregard constitutes a GROSS DEVIATION FROM THE STANDARD OF CARE that a reasonable person would exercise in the situation. An act performed reckless is also performed wantonly.

Negligence: a person acts negligently when he FAILS TO BE AWARE OF A SUBSTANTIAL AND UNJUSTIFIABLE RISK that circumstances exist or a result will follow, and such failure constitutes a SUBSTANTIAL DEVIATION FROM THE STANDARD OF CARE that a reasonable person would exercise under the circumstances. To determine whether a person acted negligently, an objective standard is used. However, it is not the reasonable person standard that is used in torts; the defendant must have taken a VERY UNREASONABLE RISK in like of the usefulness of his conduct.

Violation of a statute or Ordinance may be evidence of negligence.

ANALYSIS OF STATUTES USING FAULT STANDARDS:

1. State of Mind Applies to All Material Elements of Offense
2. General State of Mind Requirement–Recklessness (if statute doesn’t specify, then defendant must have acted with at least recklessness, but higher degree of fault will work)

Question 399

Crimlaw: Essential Elements of a Crime: Mental State: Vicarious Liability Offenses

Answer 399

A vicarious liability offense is one in which a person without personal fault may nevertheless be held vicariously liable for the criminal conduct of another (usually an employee). The criminal law doctrine of vicarious liability is analogous to the tort doctrine of respondeat superior.

1. Limitation on Punishment: at least one state court has said imprisonment in such cases violated the due process guarantees of the state constitution. Current trend is to limit to regulatory crimes and fines.
2. Should not imply legislative intent to impose Vicarious Liability from Underlying Strict Liability Offenses

Question 400

Crimlaw: Essential Elements of a Crime: Mental State: Enterprise Liability – Liability from Underlying Strict Liability Offense

Answer 400

1. Common Law–No Criminal Liability
2. Modern Statutes–Vicarious Criminal Liability where
   - -act performed by agent of corporation acting within scope of office or employment
   - -superior agent rule: some states limit liability to higher up officers or agents
3. Model Penal Code: a corporation may be guilty of an offense provided the offense:
   - -consists of a failure to discharge a specific duty imposed by law on the corporation;
   - -is defined by statute in which legislative purpose to impose liability on corporations plainly appears; OR
   - -was authorized, requested, commanded, performed, or recklessly tolerated by the board of directors or by a high managerial agent acting on behalf of the corporation within the scope of his office or employment
4. Individual Liability Independent of Enterprise Liability

Question 401

Crimlaw: Accomplice Liability: Parties to a Crime: Common Law

Answer 401

Common law distinguished four types of parties to a felony:

• -principals in the first degree: persons who actually engage in the act or omission that constitutes the criminal offense
• -principals in the second degree: persons who aid, command, or encourage the principal and are present at the crime
• -accessories before the fact: persons who aid, abet, or encourage the principal but are NOT present at the crime
• -accessories after the fact: persons who assist the principal after the crime

Significance of Common Law Distinctions: a great deal of procedural differences in how dealt with

Question 402

Crimlaw: Accomplice Liability: Parties to a Crime: Modern Statutes

Answer 402

1. Principal: one who, with the requisite mental state, ACTUALLY ENGAGES IN THE ACT OR OMISSION that causes the criminal result. Anyone who acts through an innocent, irresponsible, or unwilling agent is classified as a principal.
2. Accomplice: one who, with the intent that the crime be committed, aids, counsels, or encourages the principal before or during the commission of the crime.
3. Accessory After the Fact: one who receives, relieves, comforts, or assists another, knowing that he has committed a felony, in order to HELP THE FELON ESCAPE ARREST, TRIAL, OR CONVICTION. The crime committed by the principal must be a FELONY and it must be COMPLETED at the time the aid is rendered. Today the crime is usually called “harboring a fugitive,” “aiding escape,” or “obstructing justice.” (Penalty bears no relationship to the principal offense; five years is the maximum sentence; exemptions are usually provided for close relatives)

Question 403

Crimlaw: Inchoate Offenses: Attempt: Intent

Answer 403

The defendant must have the intent to perform an act and obtain a result that, if achieved, would constitute a crime.

1. Attempt Requires Specific Intent: to commit that crime regardless of the intent required by law for the particular crime
2. Attempt to Commit Crimes Requiring Recklessness or Negligence is Logically Impossible
3. Attempt to Commit Strict Liability Crimes Requires Intent even though strict liability crime doesn’t require intent.

Question 404

Crimlaw: Inchoate Offenses: Attempt: Overt Act

Answer 404

The defendant must have committed an act BEYOND MERE PREPARATION for the offense.

1. Traditional Rule–Proximity Test
   Attempt requires an act that is dangerously close to success.
2. Majority Rule–Model Penal Code Test
   The act or omission constitute a substantial step in a course of conduct planned to culminate in the commission of the crime. In addition, an act will not qualify as a substantial step unless it is strong corroboration of the actor’s criminal purpose.

Question 405

Crimlaw: Inchoate Offenses: Attempt: Defenses to Liability for Attempt

Answer 405

LEGAL IMPOSSIBILITY IS ALWAYS A DEFENSE
If the defendant, having completed all acts that he had intended, would have committed no crime, he cannot be guilty of an attempt to do the same if he fails to complete all intended acts.

FACTUAL IMPOSSIBILITY IS NO DEFENSE
The substantive crime is incapable of completion due to some PHYSICAL OR FACTUAL CONDITIONS, unknown to the defendant.
(tries to steal wallet from pocket, but pocket is empty)

For exam purposes, if you are unsure, assume factual impossibility.

ABANDONMENT
Majority rule: never a defense
MPC: withdrawal will be a defense, but only
–if it is fully voluntary and not made because of the difficulty of completing the crime or because of the increased risk of apprehension; and
–it is a complete abandonment of the plan made under circumstances manifesting a renunciation of criminal purpose, not just a decision to postpone committing it or to find another victim.

Question 406

Crimlaw: Responsibility and Criminal Capacity: Insanity: Formulations of Insanity Defense

Answer 406

M’NAGHTEN RULE
A defendant is entitled to an acquittal if the proof establishes that:

A DISEASE of the mind
CAUSED A DEFECT of reason
Such that the defendant LACKED THE ABILITY AT THE TIME of his actions to either:
1. Know the WRONGFULNESS of his actions; or
2. Understand the NATURE AND QUALITY of his actions.

Application:

• -if a defendant suffered from delusions (false beliefs) it is necessary to determine whether his actions would have been criminal if the facts had been as he believed them to be.
• -a defendant is not entitled to an acquittal merely because he believes his acts are morally right, unless he has lost the capacity to recognize that they are regarded by society as wrong.
• -inability to control oneself is irrelevant

IRRESISTIBLE IMPULSE TEST
Defendant is entitled to acquittal if the proof establishes that because of mental illness he was UNABLE TO CONTROL HIS ACTIONS OR TO CONFORM HIS CONDUCT TO THE LAW.

DURHAM (NEW HAMPSHIRE) TEST
Defendant is entitled to acquittal if the proof establishes that his crime was the PRODUCT OF MENTAL DISEASE OR DEFECT. A crime is a product of mental disease if it would not have been committed BUT FOR the disease. (remains the law only in New Hampshire)

ALI OR MODEL PENAL CODE TEST
Defendant is entitled to acquittal if the proof shows that he suffered from a MENTAL DISEASE or a defect and as a result LACKED SUBSTANTIAL CAPACITY to either:
1. APPRECIATE THE CRIMINALITY (wrongfulness) of his conduct; or
2. CONFORM HIS CONDUCT to the requirements of law.

Combines M’Naghten and Irresistible Impulse Test by allowing for the impairment of both cognitive and volitional capacity.

DIMINISHED CAPACITY: some states allow this as a defense to specific intent crimes and includes neurosis, obsessive compulsiveness, etc.

Question 407

Crimlaw: Responsibility and Criminal Capacity: Insanity:Procedural Issues Related to Insanity Defense

Answer 407

BURDENS OF PROOF

1. Presumption of Sanity.
2. Burden of Producing Evidence: on defendant and depending on the jurisdiction is carried by a mere shred or scintilla or by evidence sufficient to raise a reasonable doubt as to sanity.
3. Burden of Persuasion: defendant proves his insanity by a preponderance of the evidence. In some jurisdictions and under MPC, once the issue has been raised, the prosecution must prove the defendant was sane beyond a reasonable doubt. Federal courts require the defendant to prove insanity by clear and convincing evidence.

WHEN DEFENSE MAY BE RAISED AND WHO RAISES IT
1. Defense May Be Raised At or After Arraignment (minority of jurisdictions require defendant give reasonable notice to the prosecution of an intent to raise the defense at trial)

2. Neither Prosecutor Nor Judge May Raise Defense for Competent Defendant who is adequately represented

PRETRIAL PSYCHIATRIC EXAMINATION

1. Where the defendant has made a preliminary showing that it is likely he will be able to use the insanity defense, the state must provide a psychiatrist for the preparation of the defense.
2. Where the state presents evidence that the defendant is likely to be dangerous in the future, the defendant is entitled to psychiatric examination and testimony in the sentencing proceeding.
3. A defendant has no right to refuse to be examined by a psychiatrist appointed to aid the court in the resolution of the insanity plea.
4. A defendant who does not put his mental state in issue is entitled to Miranda warnings before he may be compelled to undergo a court ordered competency examination. The defendant may then refuse to be examined.

BIFURCATED TRIAL: some states employ this whenever the defense of insanity is raised. First stage determines guilt. Second stage determines insanity.

Question 408

Crimlaw: Responsibility and Criminal Capacity: Insanity: Post-Acquittal Commitment to Mental Institution

Answer 408

1. Commited Until Cured
   In some jurisdictions, such commitment is possible only if it is proven that the defendant is presently mentally ill and dangerous. In others, commitment follows automatically.
2. Confinement May Exceed Maximum Period of Incarceration Carried by Offense: may last until regained sanity or no longer dangerous. DOES NOT DENY DUE PROCESS. Not entitled to a civil commitment hearing at the end of the maximum term of imprisonment.

Question 409

Crimlaw: Responsibility and Criminal Capacity: Insanity: Mental Condition During Criminal Proceedings

Answer 409

In addition to being a defense, the abnormal mental condition of a defendant is relevant at two other stages of the legal proceeding.

INCOMPETENCY TO STAND TRIAL
Under the due process clause, a defendant may not be tried, convicted, or sentenced if, as a result of mental disease or defect, if he is UNABLE:
1. TO UNDERSTAND THE NATURE OF THE PROCEEDINGS being brought against him; or
2. TO ASSIST HIS LAWYER in the preparation of his defense.

Due process clause prevents a defendant from being declared incompetent without notice and hearing. Many jurisdictions grant a right to a jury determination of competence. A finding of incompetence will suspend the criminal proceedings and RESULT IN A COMMITMENT until such time as the defendant regains competence.

INCOMPETENCY AT TIME OF EXECUTION
A defendant may not be executed if he is incapable of understanding the nature and purpose of the punishment. Modern statutes often permit only the warden to raise the issue. Some expressly provide for a jury determination.

Question 410

Crimlaw: Responsibility and Criminal Capacity: Infancy: Common Law

Answer 410

1. Under 7–no criminal liability
2. Under 14–Rebuttable Presumption of No Criminal Liability
3. Over 14–Adult

Question 411

Crimlaw: Responsibility and Criminal Capacity: Infancy: Modern Statutes

Answer 411

1. Some Have Abolished Presumptions and have provided that no child can be convicted of a crime until a stated age is reached, usually 13 or 14. Other states have retained common law presumptions.
2. Juvenile Delinquency
   All states have enacted some type of juvenile delinquency laws or have set up special juvenile or family courts. Juvenile courts have exclusive jurisdiction of children under a certain age and concurrent jurisdiction with criminal courts over a certain age. In concurrent jurisdiction, the child must be charged in juvenile court unless the court waives jurisdiction and authorizes the trial of the child as an adult in criminal court. Common law immunity rules for infants do not apply in juvenile courts because the primary goal is rehabilitation.

MPC follows this approach and provides exclusive jurisdiction for minors younger than 16 and concurrent jurisdiction for 16 and 17 year olds.

Question 412

Crimlaw: Principles of Exculpation: Justification: Self-Defense

Answer 412

An individual who is without fault may use SUCH FORCE AS REASONABLY APPEARS NECESSARY to protect herself from the imminent use of unlawful force upon herself. There is NO DUTY TO RETREAT before using nondeadly force, even if retreat would result in no further harm to either party.

DEADLY FORCE:

1. Must be without fault (cannot have initiated or provoked the other party);
2. Must be confronted with unlawful force;
3. Must REASONABLY believe that threatened with imminent death or great bodily harm
4. No duty to retreat (majority rule)
   (minority: retreat is still not necessary if cannot be made with complete safety or occurs in own home or where attack occurs when victim making a lawful arrest or during robbery of victim)

RIGHT OF AGGRESSOR TO USE SELF DEFENSE
Generally one who is at fault for starting a confrontation has no right to use force in her own defense during the confrontation. But an aggressor can regain her right to use force in self defense in two ways:
1. Withdrawal or Retreat (with good faith and communication to other person)
2. Sudden Escalation of minor fight into one involving deadly force and does so without giving the aggressor the chance to withdraw or retreat

Question 413

Crimlaw: Principles of Exculpation: Justification: Defense of Others

Answer 413

1. Relationship of Person Aided:
   majority rule is there need be no special relationship
   minority rule: member of family or servant or employer
2. Status of Person Aided
   reasonably believed that the person assisted had the legal right to use force in his own defense

Question 414

Crimlaw: Principles of Exculpation: Justification: Defense of a Dwelling

Answer 414

NONDEADLY FORCE
to the extent that reasonably believes is necessary to prevent or terminate another’s unlawful entry into or attack upon her dwelling

DEADLY FORCE
1. Tumultuous Entry Plus Personal Attack
person reasonably believes necessary to prevent a person attack on herself or another in the dwelling

2. Felony: reasonably believes necessary to prevent the entry into the dwelling by a person who intends to commit a felony in the dwelling
3. Deadly Force

Question 415

Crimlaw: Principles of Exculpation: Justification: Defense of Other Property

Answer 415

1. Nondeadly Force
   Nondeadly force can be used to defend property in one’s possession from unlawful interference. In the case of real property, this means entry or trespass. In the case of personal property, this means removal or damage. The need to use force must reasonably appear imminent. Force cannot be used if a request to desist or refrain from the act would suffice. Right is limited to property in one’s possession. Cannot use force to regain possession of property wrongfully taken, unless the person using it is in “immediate pursuit” of the taker.

DEADLY FORCE MAY NOT BE USED

Question 416

Crimlaw: Principles of Exculpation: Justification: Crime Prevention

Answer 416

1. Nondeadly Force: to the extent that it reasonably appears necessary to prevent a felony, right, or other serious breach of the peace, although some states have extended this to the prevention of any crime.
2. Deadly Force:
   traditional rule: any felony
   modern rule: only if crime is a dangerous felony involving risk to human life (robbery, arson, burglary of a dwelling)

Question 417

Crimlaw: Principles of Exculpation: Justification: Use of Force to Effectuate Arrest

Answer 417

Use of deadly force to apprehend a fleeing felon constitutes a seizure and must be reasonable.

1. By Police Officer
   Deadly force is reasonable only when the felon threatens death or serious bodily injury to police officer or others and deadly force is necessary to prevent his escape
2. By Private Person
   same defense as a police officer but has defense to the use of deadly force only if the person was ACTUALLY GUILTY of the offense for which the arrest was made. Nondeadly force if the person reasonable gounds to believe that the person arrested had in fact committed the crime.

Question 418

Crimlaw: Principles of Exculpation: Justification: Resisting Arrest

Answer 418

1. Right to Resist Person Not Known to Be Police Officer–Yes, even use deadly force if necessary
2. Right to Resist Known Police Officer:
   Majority: nondeadly force may be used to resist an improper arrest even if a known officer is making that arrest.
   Minority and MPC: no right to resist with force

Question 419

Crimlaw: Principles of Exculpation: Other Defenses: Mistake or Ignorance of Fact

Answer 419

MISTAKE MUST NEGATE STATE OF MINDE
Ignorance or mistake of fact will affect criminal guilt only if it shows that the defendant did not have the state of mind required for crime.

MALICE AND GENERAL INTENT CRIMES–REASONABLENESS REQUIRED

SPECIFIC INTENT CRIMES–REASONABLENESS NOT REQUIRED

STRICT LIABILITY–MISTAKE NO DEFENSE

Question 420

Crimlaw: Principles of Exculpation: Other Defenses: Mistake or Ignorance of Law

Answer 420

GENERAL RULE–NO DEFENSE

MISTAKE OR IGNORANCE OF LAW MAY NEGATE INTENT

EXCEPTIONS
Defendant has a defense if the statute proscribing her conduct WAS NOT PUBLISHED OR MADE REASONABLY AVAILABLE prior to the conduct.

Defendant has a defense if she acted in REASONABLE RELIANCE on a state or judicial decision, even though later declared unconstitutional or overruled. Defense is stronger the higher the court that rendered the decision.

Defense when relied on a statement obtained by one charged by law with responsibility for the interpretation, administration, or enforcement of the law.

RELIANCE ON OWN ATTORNEY NOT A DEFENSE unless it negates a necessary state of mind element.

Question 421

Crimlaw: Principles of Exculpation: Other Defenses: Consent

Answer 421

Consent of the victim is generally no defense. However, if it negates an element of the offense, consent is a complete defense.

Whenever consent may be a defense, it must be established that:

1. The consent was voluntarily and FREELY GIVEN (without compulsion or duress);
2. The party was LEGALLY CAPABLE of consenting; and
3. NO FRAUD was involved in obtaining the consent.

Question 422

Crimlaw: Principles of Exculpation: Other Defenses: Entrapment

Answer 422

Entrapment occurs if the intent to commit the crime originated not with the defendant, but rather with the creative activities of law enforcement officers.

Elements:

1. The CRIMINAL DESIGN must have ORIGINATED WITH LAW ENFORCEMENT officers; and
2. the defendant must NOT have been PREDISPOSED to commit the crime prior to the initial contact by the government.

If the defendant offers credible evidence on the two elements, then the government must show predisposition beyond a reasonable doubt.

1. Offering Opportunity to Commit Crime Distinguished
2. Cannot be entrapped by a private citizen.
3. Waived use of entrapment defense if defendant denies participation in offense.
4. Provision of Material for Crime by Government Agent Not Entrapment

Question 423

Crimlaw: Offenses Against the Person: Assault and Battery: Battery

Answer 423

Battery is an unlawful application of force to the person of another resulting in either bodily injury or an offensive touching. Simple battery is a misdemeanor.

1. State of Mind–Specific Intent Not Required (general intent sufficient)
2. Indirect Application of Force Sufficient (force by something put into motion by defendant)
3. Aggravated Battery: felony
   Depending on the state may include:
   –deadly weapon (any ordinary object may become a deadly weapon depending on how it is used)
   –serious bodily injury is caused
   –victim is a child, woman, or police officer
4. Consent as a Defense: some jurisdictions recognize for simple battery and some specified batteries: medical operation, althletics

Question 424

Crimlaw: Offenses Against the Person: Assault and Battery: Assault

Answer 424

Majority view: assault is either
1. An attempt to commit a battery;
OR
2. The intentional creation –other than by mere words–of a reasonable apprehension in the mind of the victim of imminent bodily harm.

Minority view: assault is an attempt to commit a battery.

1. Present Ability to Succeed: required in some jurisdictions.
2. Battery Distinguished: if there has been actual touching of the victim, then can only be a battery.
3. Statutory Aggravated Assault: include but not limited to
   - -dangerous or deadly weapon
   - -intent to rape, maim, or murder

Question 425

Crimlaw: Offenses Against the Person: Homicide: Common Law Criminal Homicides

Answer 425

At common law, criminal homicides were subdivided into three different offenses.

MURDER
Murder is the unlawful killing of another human being with malice aforethought. Malice aforethought may be express or implied.

1. Malice Aforethought
   In the absence of facts excusing the homicide or reducing it to voluntary manslaughter, malice aforethought exists if the defendant has any of the following states of mind:

• -intent to kill (express malice)
• -intent to inflict great bodily injury
• -reckless indifference to an unjustifiably high risk to human life (“abandoned and malignant heart”)
• -intent to commit a felony (felony murder)

Malice can be implied.

2. Deadly Weapon Rule
   Intentional use of a deadly weapon authorizes a permissive inference of intent to kill. A deadly weapon is any instrument–or in some limited instances, any part of the body–used in a manner calculated or likely to produce death or serious bodily injury.

VOLUNTARY MANSLAUGHTER
A killing that would otherwise be murder but is distinguishable from murder by the exercise of adequate provocation (killing in the heat of passion).

Elements of Adequate Provocation:

1. Provocation must have been one that would arouse SUDDEN AND INTENSE PASSION in the mind of an ORDINARY PERSON such as to cause him to lose his self-control;
2. The defendant must have IN FACT been PROVOKED;
3. There MUST NOT HAVE BEEN A SUFFICIENT TIME between the provocation and the killing for the passions of a reasonable person to cool.
4. The defendant IN FACT did not cool off between the provocation and the killing.

When Provocation is Adequate
Adequate provocation is most frequently recognized in cases of:
–being subjected to a serious battery or a threat of deadly force
–discovering one’s spouse in bed with another person.

Provocation Inadequate as a Matter of Law
–mere words (although most courts send this issue to the jury nowadays)

Recent Expansion–Imperfect Self-Defense
Murder may be reduced to manslaughter even though:
1. Defendant was at fault in starting the altercation; or
2. Defendant unreasonably but honestly believed in the necessity of responding with deadly force.

INVOLUNTARY MANSLAUGHTER: 2 types

1. Criminal Negligence (MPC recklessness)
2. Unlawful Act Manslaughter: killing caused by an unlawful act
   - -misdemeanor manslaughter rule (must be a foreseeable or natural consequence of the misdemeanor)
   - -felonies not included in the felony murder rule (must be a foreseeable consequence of the felony)

Question 426

Crimlaw: Offenses Against the Person: Homicide: Statutory Modification of Common Law Classification

Answer 426

Modern statutes often divide murder into degrees, and the bar examination often consists of questions based on statutes similar to them. Under such schemes, all murders are SECOND DEGREE murders unless the prosecution proves any of the following, which would make the murder FIRST DEGREE murder:

1. Deliberate and Premeditated Killing
2. First Degree Felony Murder (most common: burglary, arson, rape, robbery, and kidnapping, but may include others according to the statute)
3. Second Degree Felony Murder: killing committed during the course of a felony that is not listed.
4. Others: some states have specific ways of killing to be first degree murder, such as lying in wait, poison, torture.

Question 427

Crimlaw: Offenses Against the Person: Homicide: Felony Murder (and Related Matters)

Answer 427

As the definition of malice aforethought makes clear, a killing, even an accidental one–committed during the course of a felony is murder. Malice is implied from the intent to commit the underlying crime.

Scope of the Doctrine
When the felony murder doctrine is combined with conspiracy law, the scope of liability becomes very broad. If in the course of a conspiracy to commit a felony, a death is caused, all members of the conspiracy are liable for murder if the death was caused in furtherance of the conspiracy and was foreseeable consequence of the conspiracy.

Limitations on Liability:

1. Must have committed or attempted to commit the underlying felony.
2. Felony murder rule can be applied only where the underlying felony is independent of the killing.
3. Foreseeability of death required, but most courts are willing to find most deaths foreseeable.
4. While death must have been “caused during” the commission or attempted commission of the felony, death while fleeing the crime counts until the felon has reach a PLACE OF TEMPORARY SAFETY.
5. Killing of a co-felon by victims of felonies or pursuing police officers is NOT felony murder (but killing of an innocent party by the police is felony murder).

Limits similar to those placed on felony murder are placed on involuntary misdemeanor manslaughter.

Question 428

Crimlaw: Offenses Against the Person: Homicide: Causation

Answer 428

GENERAL REQUIREMENT–MUST BE CAUSE IN FACT AND PROXIMATE CAUSE

Year and a day rule: death of the victim must occur within one year and one day from the infliction of the injury or wound.

All Natural and Probable Results are Proximately Caused (chain only broken by the intervention of a superseding factor)

RULES OF CAUSATION

1. Hastening Inevitable Result: is still a legal cause of the result.
2. Simultaneous Acts: may be considered independently sufficient causes of a single result.
3. Preexisting Condition: does not break the chain of causation (takes the victim as he finds him)

INTERVENING ACTS
An intervening act will shield the defendant from liability if the act is a mere coincidence or is outside the foreseeable sphere of risk created by the defendant’s act.

Question 429

Crimlaw: Offenses Against the Habitation: Burglary: Breaking Required

Answer 429

1. Actual Breaking–Minimal Force Sufficient (opening a closed but unlocked door)
2. Constructive Breaking–consists of gaining entry by means of fraud, threat, or intimidation or by means of the chimney
3. Requirement of Trespass–Consent to Enter cannot be exceeded to times not consented to
4. Requirement that Breaking be “of the house” (closet door in the house works; trunk in the house does not)
5. Breaking to Exit Insufficient–must be to GAIN ENTRY

Question 430

Crimlaw: Offenses Against the Habitation: Burglary: Modern Statutory Changes (most common)

Answer 430

1. Abandonment of Requirement of Breaking:sufficient if defendant entered the structure
2. Remaining in a Structure with intent to commit an offense is burglary.
3. Broadening Structures that Can be Burglarized: sometimes includes yards and cars
4. Elimination of Nighttime Requirement: although burglary at nighttime is often assigned a more serious penalty
5. Intent to Commit Misdemeanor Theft is sufficient for burglary charge.

Question 431

Crimpro: Exclusionary Rule: Scope of the Rule

Answer 431

FRUIT OF THE POISONOUS TREE
Generally, not only must ILLEGALLY OBTAINED EVIDENCE be excluded, but also ALL EVIDENCE OBTAINED OR DERIVED from exploitation of that evidence.

The fruits derived from statements obtained in violation of Miranda may be admissible despite the exclusionary rule.

EXCEPTION–BALANCING TEST
In recent cases, the Court has emphasized that in deciding whether to apply the exclusionary rule, lower courts must BALANCE the rule’s PURPOSE AGAINST ITS COSTS. Therefore, exclusion is not automatic. Whether exclusion is warranted depends on “the culpability of the police and the potential of the exclusion to deter wrongful police conduct.”

1. Independent Source: prosecution can show that it was obtained from a source independent of the original illegality.
2. Intervening Act of Free Will by the Defendant (Attenuation)
3. Inevitable Discovery
4. Live Witness Testimony
5. In Court Identification

Question 432

Crimpro: Exclusionary Rule: Limitation of Rule: Good Faith Exception

Answer 432

The exclusionary rule does not apply when the police arrest or search someone erroneously but in good faith, thinking that they are acting pursuant to a valid arrest warrant, search warrant, or law.

EXCEPTIONS TO GOOD FAITH RELIANCE ON SEARCH WARRANT
A police officer cannot rely on a defective search warrant in good faith if:

1. The affidavit underlying the warrant is so lacking in probable cause that no reasonable police officer would have relied on it;
2. The warrant is defective on its face (e.g., fails to state with particularity the place to be searched or things to be seized);
3. The police officer or government official obtaining the warrant lied to or misled the magistrate; or
4. The magistrate has wholly abandoned his judicial role.

Question 433

Crimpro: Exclusionary Rule: Limitation of Rule: Use of Excluded Evidence for Impeachment Purposes

Answer 433

Some illegally obtained evidence that is inadmissible in the state’s case in chief may nevertheless be used to impeach the defendant’s credibility if he takes the stand at trial.

1. Voluntary Confessions in Violation of Miranda
2. Fruit of Illegal Searches

Question 434

Crimpro: Fourth Amendment: Arrests and Other Detentions: Arrests

Answer 434

An arrest occurs when the police take a person into custody against her will for purposes of criminal prosecution or interrogation.

PROBABLE CAUSE REQUIREMENT
An arrest must be based on PROBABLE CAUSE. Probable cause to arrest is present when, at the time of the arrest, the officer has within her knowledge reasonably trustworthy facts and circumstances sufficient to warrant a reasonably prudent person to believe that the suspect has committed or is committing a crime.

Mistaken Offense: an arrest is not invalid merely because the grounds stated for the arrest at the time it was made are erroneous, as long as the officers had other grounds on which there was probable cause for the arrest.

WARRANT GENERALLY NOT REQUIRED
Police generally do not need to obtain a warrant before arresting a person in a PUBLIC PLACE, even if they have time to get a warrant.

1. Felony: warrantless arrest when officer has REASONABLE GROUNDS TO BELIEVE that a felony has been committed and that the person before her committed it.
2. Misdemeanor: warrantless arrest for a misdemeanor committed in her presence (aware of it through any of her senses).
3. Exception: home arrests require warrant
   - -home of third parties: requires warrant, but arrest still valid, but evidence may not be used against the homeowner (but arrestee cannot have such evidence suppressed)

EFFECT OF AN INVALID ARREST
An unlawful arrest, by itself, has not impact on subsequent criminal prosecution. Evidence that is a fruit of the unlawful arrest may not be used against the defendant at trial because of the exclusionary rule.

Question 435

Crimpro: Fourth Amendment: Arrests and Other Detentions: Investigatory Detentions (Stop and Frisk)

Answer 435

STOP: Police must have REASONABLE SUSPICION supported by ARTICULABLE FACTS of criminal activity or involvement in a completed crime.

FRISK: Police must have a REASONABLE SUSPICION to believe that the detainee is ARMED AND DANGEROUS.

REASONABLE SUSPICION: something more than vague suspicion, but less than probable cause; judged under totality of circumstances.

SOURCE OF SUSPICION: flyer, police bulletin, informant tip (tip must include indicia of reliability, including predictive information, sufficient to make the officer’s suspicion reasonable)

DURATION AND SCOPE: generally brief, but not subject to a specific time limit. For a stop to be valid, police must act in a DILIGENT AND REASONABLE MANNER IN CONFIRMING OR DISPELLING THEIR SUSPICIONS.

IDENTIFICATION MAY BE REQUIRED: an person may be arrested for refusing to give identification (still need reasonable suspicion for stop in the first place)

DEVELOPMENT OF PROBABLE: if during an investigatory detention, the officer develops probable cause, the detention becomes an arrest and the officer can proceed on that basis. He can, for example, conduct a full search incident to arrest.

WHAT CONSTITUTES A STOP: reasonable person would believe she is not free to decline an officer’s requests or otherwise terminate the encounter.

PROPERTY SEIZURES ON REASONABLE SUSPICION: that they are or contain contraband or evidence, but such seizures are limited (90 minute detention of luggage reasonably suspected to contain drugs unconstitutional)

Question 436

Crimpro: Fourth Amendment: Evidentiary Search and Seizure: Legitimate Expectation of Privacy: Standing

Answer 436

To have a Fourth Amendment right, a person must have a legitimate expectation of privacy with respect to the place searched or the item seized.

STANDING REQUIRED
The Court has found that a person has a legitimate expectation of privacy any time:

1. She OWNED OR HAD A RIGHT TO POSSESSION of the place searched;
2. The PLACED SEARCHED WAS IN FACT HER HOME, whether or not she owned or had a right to possession of it; or
3. She was an OVERNIGHT GUEST of the owner of the place searched.

Search of Third Party Premises: standing does not exist merely because a person will be harmed by introduction of evidence seized during an illegal search of third person’s property.

No Automatic Standing to Object to Seizure of Evidence in Possessory Offense: now may assert a legitimate expectation of privacy claim

No Automatic Standing for Co-Conspirator

Question 437

Crimpro: Fourth Amendment: Evidentiary Search and Seizure: Searches Conducted Pursuant to a Warrant: Requirement of a Warrant

Answer 437

To be reasonable under the Fourth Amendment, most searches must be pursuant to a warrant. The warrant requirement serves as a check against unfettered police discretion by requiring police to apply to a neutral magistrate for permission to conduct a search. A search without a warrant will be invalid unless it is within one of the 6 categories of permissible warrantless searches.

REQUIREMENT OF A WARRANT
To be valid a warrant must:

1. Be issued by a NEUTRAL AND DETACHED MAGISTRATE;
2. Be BASED ON PROBABLE CAUSE established from facts submitted to the magistrate by a government agent upon oath or affirmation; and
3. PARTICULARLY DESCRIBE the place to be searched and the items to be seized.

Question 438

Crimpro: Fourth Amendment: Evidentiary Search and Seizure: Six Exceptions to Warrant Requirement: list

Answer 438

1. Search Incident to a Lawful Arrest
2. Automobile Exception
3. Plain View
4. Consent
5. Stop and Frisk
6. Hot Pursuit, Evanescent Evidence, and Other Emergencies

Question 439

Crimpro: Fourth Amendment: Evidentiary Search and Seizure: Administrative Inspections and Searches

Answer 439

1. Warrant Requirement for Searches of Private Residences and Business
   - -exceptions: seizure of contaminated food or a highly regulated industry
2. Inventory Searches permissible without warrant
3. Search of Airline Passengers: permissible without warrant
4. Public School Searches: permissible without warrant, but REASONABLE GROUNDS for the search are necessary. Court upheld rule that students in extracurricular events must submit to random urinalysis.

A school search will be found to be reasonable only if:

• -If offers a MODERATE CHANCE OF FINDING EVIDENCE of wrongdoing;
• -the measure adopted to carry out the search are REASONABLY RELATED TO THE OBJECTIVES OF THE SEARCH; and
• -the search is NOT EXCESSIVELY INTRUSIVE in light of the age and sex of the student and nature of the infraction.

5. Parolees: warrantless search of parolee and home even without reasonable suspicion where a state statute provided that as a condition of parole, the parolee would agree to such a search.
6. Government Employees Desks and Files: if reasonable in scope and justified at its inception by a noninvestigatory, work-related need or a reasonable suspicion of work-related misconduct.
7. Drug Testing: although government required drug testing constitutes a search, the Supreme Court has upheld such testing without a warrant, probable cause, or even individualized suspicion when justified by SPECIAL NEEDS beyond the general interest of law enforcement.

Question 440

Crimpro: Fourth Amendment: Evidentiary Search and Seizure: Searches in Foreign Countries and at the Border

Answer 440

1. Searches in Foreign Countries: 4th does not apply
2. Searches at the Border or its functional Equivalent: 4th does not apply, whether citizen or noncitizen.
3. Roving Patrols:
   Stops: allowed if officer reasonably suspects that the automobile may contain illegal aliens, but the apparent Mexican ancestry alone cannot create a reasonable suspicion.
   Searches: may not conduct a warrantless search unless one of the exceptions is present
4. Fixed Checkpoints: 4th doesn’t apply (but Supreme Court has suggested that nonroutine, personal searches may require probable cause (strip search)
5. Opening International Mail: permissible border searches include opening of international mail when postal authorities have REASONABLE CAUSE to suspect the mail contains contraband, although the regulations prohibit the authorities from reading any of the correspondence inside.
   - -subsequent reopening after delivery to recipient is subject to the 4th
6. Immigration Enforcement Actions:
   - -INS may do a factory survey of the entire workforce in a factory to determine citizenship of each employee without raising 4th amendment issues. The factory survey is not a detention or seizure under the 4th.
   - -Evidence illegally obtained in violation of the 4th may be used in a civil deportation hearing.
7. Detentions: if the officials have “reasonable suspicion” that a traveler is smuggling contraband in her stomach, they may detain her for a time reasonable under the circumstances.

Question 441

Crimpro: Fourth Amendment: Evidentiary Search and Seizure: Wiretapping and Eavesdropping

Answer 441

Wiretapping and any other form of electronic surveillance that violates a reasonable expectation of privacy constitute a search under the 4th.

For a valid warrant authorizing a wiretap to be issued, the following requirements must be met:

1. A showing of PROBABLE CAUSE to believe that a SPECIFIC CRIME has been or is being committed must be made;
2. The SUSPECTED PERSONS whose conversations are to be overheard must be NAMED;
3. The warrant must DESCRIBE WITH PARTICULARITY the conversations that can be overheard;
4. The wiretap must be limited to a SHORT PERIOD OF TIME (although extesnions may be obtained upon an adequate showing);
5. PROVISIONS must be made for the TERMINATION of the wiretap when the desired information has been obtained; and
6. A RETURN must be made to the court, showing what conversations have been intercepted.

EXCEPTIONS

• -unreliable ear: a speaker assumes the risk that the person to whom she is talking is unreliable
• -uninvited ear: a speaker has not 4th Amendment claim if she makes no attempt to keep the conversation private

JUDICIAL APPROVAL REQUIRED FOR DOMESTIC SECURITY SURVEILLANCE (president can’t authorize it)

FEDERAL STATUTE
Title III Omnibus Crime Control: all electronic communication surveillance must comply with the requirements of this statute which requires more than the constitutional minimum

PEN REGISTERS
records only the numbers dialed from a certain phone: no requirement of prior judicial approval

COVERT ENTRY TO INSTALL A BUG PERMISSIBLE without express judicial authorization, if surveillance has been approved in compliance with Title III.
6. Covert Entry to Install a Bug Permissible

Question 442

Crimpro: Fourth Amendment: Methods of Obtaining Evidence that Shock the Conscience: Searches of the Body

Answer 442

Due process of law requires that state criminal prosecution be conducted in a manner that does not offend the “sense of justice” inherent in due process. Evidence obtained in a manner offending that sense is INADMISSIBLE, even if it does not run afoul of one of the specific prohibitions against particular types of misconduct.

SEARCHES OF THE BODY
Intrusions into the human body implicate a person’s most deep rooted expectation of privacy.

1. Blood Tests: involves virtually no risk, trauma, or pain and is REASONABLE
2. Compare–Surgery
   UNREASONABLE (for the purpose of removing a bullet)

SHOCKING INDUCEMENT
If a crime is induced by official actions that themselves shock the conscience, any conviction therefrom offends due process.

Question 443

Crimpro: Confessions: Fifth Amendment Privilege Against Compelled Self Incrimination–Miranda: The Warnings

Answer 443

The Miranda warnings and a valid waiver are PREREQUISITES TO THE ADMISSIBILITY of any statement made by the accused during custodial interrogation. A person in custody must, prior to interrogation, be clearly informed that:

1. He has the right to remain silent;
2. Anything he says can be used against him in court;
3. He has the right to the presence of an attorney; and
4. If he cannot afford an attorney, one will be appointed for him if he so desires.

Miranda warnings are based on the requirements of the 5th Amendment as made applicable to the states through the 14th Amendment and so therefore, Congress cannot eliminate the MIranda warnings through statute.

Warnings Need Not be Verbatim–as long as the substance is there.

Rewarning Not Needing After Break–unless the time lapse has been so long that a failure to do so would seem like an attempt to take advantage of the suspect’s ignorance of his rights.

Question 444

Crimpro: Confessions: Fifth Amendment Privilege Against Compelled Self Incrimination–Miranda: When Required

Answer 444

Anyone in police custody and accused of a crime, no matter how minor a crime, must be given Miranda warnings prior to interrogation by the police.

1. Government Conduct
   - -does not apply when interrogation is by an informant who defendant doesn’t know is working for the police, because the warnings are intended to offset the coercive nature of police-dominated interrogation

–state ordered psychiatric examination: warnings required

–meeting with probation officer–warnings not required

–uncharged witness at grand jury hearing–warnings not required

2. Custody Requirement
   - -depends on whether the person’s freedom of action is limited in a significant way; the more a setting resembles a traditional arrest, the more constrained the suspect feels, and the more likely the Court will consider it to be custody.

–initial determination of whether a person is in custody depends on the OBJECTIVE circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being interrogated.

–traffic stops generally not custodial\

3. Interrogation Requirement
   - -refers not only to express questioning, but also to any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response from the suspect.

–Miranda does not apply to spontaneous statements not made in response to interrogation, although officers must give warnings before any followup questions

–Miranda does not apply to routine booking questions, even when the booking is being taped and may be used as evidence

–break in interrogation–questioning by different police agencies: failure to administer warnings by first agency carries over into the second agencies questioning

Question 445

Crimpro: Confessions: Fifth Amendment Privilege Against Compelled Self Incrimination–Miranda: Right to Waive Rights or Terminate Interrogation

Answer 445

After receiving Miranda warnings, the detainee has several options:

1. Do Nothing: Court will not presume a waiver or an assertion of a right to remain silent; police can continue questioning.
2. Waive Rights: government must show by a preponderance of the evidence that the waiver was knowing and voluntary. However, if given rights then answer questions, that probably is sufficient to constitute a waiver.

Police deception of detainee’s lawyer: if the warnings are given, a voluntary confession will be admissible even if the cops lied to the detainee’s witness or failed to inform the detainee that his lawyer is attempting to see him, as long as adversary judicial proceedings have not commenced.

3. Right to Remain Silent: At any time prior to or during interrogation, the detainee may indicate that he wishes to remain silent. Such an indication must be explicit, unambiguous, and unequivocal. If the detainee so indicates, all QUESTIONING RELATED TO THE PARTICULAR CRIME MUST STOP.

Police may resume questioning if they scrupulously honor request. This means, at the very least, that the police may not badger the detainee into talking and must wait a significant time before reinitiating questioning.
(Only case on point: 1. police immediately ceased questioning on detainee’s request and did not resume questioning for several hours; rewarned of rights; questioning was limited to a crime that was not the subject of the earlier questioning)

4. Right to Counsel: At any time prior to or during interrogation, the detainee may also invoke a Miranda right to counsel at which point ALL QUESTIONING MUST CEASE until the detainee is provided with an attorney or initiates further questioning himself.

Police may not resume questioning about any crime.

Detainee may initiate resumption of questioning.

Scope of right–5th Amendment right to counsel applies whenever there is custodial interrogation.

Sixth Amendment right is offense specific, but 5th amendment right to counsel if not.

Request must be unambiguous and specific. (maybe is should talk to a lawyer doesn’t work)

If request is ambiguous the police may continue questioning.

Counsel must be present at interrogation–mere consultation with counsel prior to interrogation does not satisfy the requirement.

Duration of Prohibition: lasts the entire time that he is in custody for interrogation purposes, plus 14 days after he returns to his normal life. at that point the detainee can be questioned about the same matter after receiving fresh warnings

Statements obtained in violation of detainee request for counsel can be used to impeach.

Question 446

Crimpro: Confessions: Fifth Amendment Privilege Against Compelled Self Incrimination–Miranda: Effect of Violation

Answer 446

Confession that violates Miranda rights, but is otherwise voluntary, may be used to IMPEACH THE DEFENDANT’S TESTIMONY if he takes the stand at trial, even though such a confession is inadmissible in the state’s case in chief as evidence of guilt.

Silence: the prosecutor may not use the defendant’s silence after receiving Miranda warnings to counter the defendant’s insanity defense.

Harmless Error: a single question by the prosecutor about the defendant’s silence may be harmless error when followed by an objection sustained by the judge and an instruction to jurors to ignore the question.

Warnings After Questioning and Confession: If police get a confession after questioning without Miranda warnings, then give warnings and get the confession again, the confession is inadmissible if the question first, warn later nature seems intentional.

Nontestimonial Fruits of an Unwarned Confession: evidence will not be suppressed if the failure to warn was unintentional

Public Safety Exception to Miranda: statement admissible if questioning was prompted by concern for public safety (handcuffed suspect asked where he hid the gun)

Question 447

Crimpro: Pretrial Procedures: Grand Juries: Grand Jury Proceedings (10)

Answer 447

1. Secrecy and Defendant’s Lack of Notice and Access
2. Particularized Need Required for Prosecutor’s Access to Grand Jury Materials
3. Subpoena Powers of grand Jury
4. No right to Counsel or Miranda Warnings (can be convicted of perjury if testifies falsely)
5. No Right to Warning that Witness is Potential Defendant
6. No Right to Have Evidence excluded (may use evidence that would be inadmissible in court)
7. No Right to Challenge Subpoena on Fourth Amendment grounds (probable cause not needed)
8. Exclusion of Minorities from grand jury service prohibited
9. Dismissal Seldom Required for Procedural Defect (only if substantial error that would not have resulted in indictment but for the error)
10. Exculpatory Evidence: indictment may not be dismissed if prosecutor fails to provide

Question 448

Crimpro: Pretrial Procedures: Prosecutorial Duty to Disclose Exculpatory Information and Notice of Defenses: Prosecutor’s Duty to Disclose Exculpatory Evidence

Answer 448

The government has a duty to disclose material, exculpatory evidence to the defendant. Failure to disclose such evidence–whether willful OR INADVERTANT–violates teh Due Process Clause and is grounds for reversing a conviction if the defendant can prove that:

(i) The evidence at issue is FAVORABLE TO THE DEFENDANT because it impeaches or is exculpatory; and
(ii) PREJUDICE HAS RESULTED (i.e., there is a reasonable probability that the result of the case would have been different if the undisclosed evidence had been presented at trial).

If the prosecution can show that the verdict is strongly supported by other evidence, sufficient prejudice will not be found.

1. Exception–Investigative Reports Made by a State Agency on Sexually Abused Minors: defendant cannot automatically get these. Can only get them if both material and favorable.
2. Probably Must be Relevant to Merits
3. Duty Does Not Apply at Post Conviction Proceedings

Question 449

Crimpro: Pretrial Procedures: Prosecutorial Duty to Disclose Exculpatory Information and Notice of Defenses: Notice of Alibi and Intent to Present Insanity Defense

Answer 449

1. Reciprocity Required: If the defendant is going to raise an alibi or plead insanity, then must list his witnesses. In return, the prosecution must list witnesses that will be used to rebut the defense.
2. Commenting on Failure to Present the Alibi: prosecutor may not comment on failure to produce a witness as supporting the alibi or failure to present the alibi itself. But the prosecutor may use the notice of an alibi to IMPEACH a defendant who takes the stand and testifies to a different alibi.

Question 450

Crimpro: Trial: Right To Trial by Jury: Right to Jury Trial only for Serious Offenses (2)

Answer 450

There is no constitutional right to jury trial for petty offenses, but only for serious offenses. There is no right to jury trial in juvenile delinquency proceedings.

What constitutes a serious offense?
Imprisonment for more than six months. Presumption may be overcome by additional penalties, but $5000 and 5 years probation is not sufficient. Nor does the right arise when there is an aggregation of petty offenses.

Civil Contempt–no jury right
Criminal Contempt–six month rule
Appellate Modification of sentence Sufficient–appeals court can reduce the sentence for contempt to six months to protect the conviction from constitutional attack
Probation for contempt–no jury right as long as revocation would not result in more than six months imprisonment

Question 451

Crimpro: Trial: Right To Trial by Jury: Number and Unanimity of Jurors

Answer 451

1. No Right to Jury of Twelve: must be AT LEAST SIX to satisfy the 6th and 14th
2. No Absolute Right to Unanimity unless it is a six person jury.

Question 452

Crimpro: Trial: Right To Trial by Jury: Right to Venire Selected from Representative Cross-Section of Community

Answer 452

A defendant has a right to have the venire from which the jury is selected be from a representative cross-section of the community. A defendant can complain of an exclusion of a significant segment of the community from the venire, even if he is not a member of that excluded segment.

1. Showing of Exclusion: defendant need only show the underrepresentation of a distinct and numerically significant group.
2. No Right to Proportional Representation on Particular Jury
3. Use of Peremptory Challenges for Racial and Gender Based Discrimination: forbidden.
   Equal Protection–based attack on preemptory strike involves 3 steps:
   (i) the defendant must show FACTS OR CIRCUMSTANCES THAT RAISE AN INFERENCE that the exlusion of potential jurors was based on race or gender.
   (ii) if such a showing is made, the prosecutor must then come forward with a race-neutral explanation for the strike (need not be reasonable, as long as race neutral)
   (iii) judge then determines whether the prosecutor’s explanation was the genuine reason for the strike or merely a pretext.

Question 453

Crimpro: Trial: Right To Trial by Jury: Sentence Enhancements

Answer 453

If substantive law provides that a sentence may be increased beyond the statutory maximum for a crime if additonal facts (other than prior conviction) are proved, proof of the facts must be submitted to the jury and proved beyond reasonable doubt; the defendant’s right to jury trial is violated if the judge makes the determination.

1. guilty pleas–same rule applies
2. harmless error test applies
3. distinguish–judge may decide whether sentences run consecutively

Question 454

Crimpro: Trial: Right to Counsel: Effective Assistance of Counsel

Answer 454

6th Amendment right to counsel includes the right to effective counsel. The ineffective assistance claim is the most commonly raised constitutional claim for a reversal of conviction and new trial.

1. Effective Assistance Presumed: unless the adversarial process is so undermined by counsel’s conduct that the right cannot be relied upon to have produced a just result.
2. Right Extends to First Appeal as of right
3. Circumstances Constituting Ineffective Assistance
   An ineffective assistance claimant must show:
   (i) Deficient performance by counsel; and that
   (ii) But for such deficiency, the result of the proceeding would have been different.
4. Circumstances Not Constituting Ineffective Assistance
   - -trial tactics: court will not grant relief for any acts or omissions by counsel that they view were trial tactics
   - -failure to raise constitutional claim that was valid at trial but later invalidated

Question 455

Crimpro: Trial: Right to Counsel: Conflicts of Interest

Answer 455

Joint representation is not per se invalid. However, if an attorney advises the trial court of a resulting conflict of interest at or before trial, and the court refuses to appoint separate counsel, the defendant is entitled to AUTOMATIC REVERSAL. If the defendant does not object to joint representation in a timely manner, to obtain reversal, the defendant must show that the attorney ACTIVELY represented conflicting interests and thereby prejudiced the defendant.

1. Conflict Between Defendant and his own Attorney is Rarely Ground for Relief
2. No Right to Joint Representation–even though defendant normally has right to attorney of her own choosing

Question 456

Crimpro: Trial: Burden of Proof, Sufficiency of Evidence, and Jury Instructions: Burden of Proof

Answer 456

1. Proof Beyond a Reasonable Doubt: required by due process and prosecution must prove each element

However, state may required evidence by defendant of an affirmative defense.

2. Presumption of Innocence: not mentioned in constitution and so is not an absolute right; but is a basic component of a fair trial

Question 457

Crimpro: Trial: Burden of Proof, Sufficiency of Evidence, and Jury Instructions: Presumptions

Answer 457

A permissive presumption allows, but does not require, the jury to infer an element of an offense from proof by the prosecutor of the basic fact, while the jury must accept a mandatory presumption even if it is the sole evidence of the elemental fact.

1. Permissive Presumptions–Rational Relation Standard
   Rational relation between the basic facts that prosecution proved and the ultimate fact presumed, and that the later is more likely than not to flow from the former.
2. Mandatory Presumptions Unconstitutional
   A mandatory presumption that shifts the burden of proof to the defendant violates the 14th Amendment requirement that the state prove every elements of a crime beyond a reasonable doubt.

Question 458

Crimpro: Trial: Burden of Proof, Sufficiency of Evidence, and Jury Instructions: Sufficiency of Evidence

Answer 458

The requirement of proof beyond a reasonable doubt in the Due Process Clause means that the sufficiency of the evidence supporting a criminal conviction in state court is, to some extent, a federal constitutional issue. Due process is violated if, viewing all the evidence in the light most favorable to the prosecution, no rational judge or jury would have found the defendant guilty of the crime of which he was convicted.

1. Confessions must be Corroborated: criminal conviction cannot rest entirely on an uncorroborated extrajudicial confession. If the defendant does not admit guilt in court, the prosecution must introduce extrinsic evidence that at least tends to lead to the trustworthiness of the admission.

Question 459

Crimpro: Trial: Burden of Proof, Sufficiency of Evidence, and Jury Instructions: Right to Present Defensive Evidence

Answer 459

Due process requires an opportunity to establish innocence.

1. Application–Barring Claim that Third Party committed Crime: state cannot impose such a rule
2. Application–Exclusionary Rules of Evidence: even rules valid on their face may combine to deprive defendant of fair opportunity to rebut
3. Exclusion as Sanction: allowed for defendant’s violation of discovery rules or procedure

Question 460

Evidence: General Considerations: Threshold Admissibility Issues: Competence

Answer 460

Material and relevant evidence is admissible if competent. Evidence is competent if it DOES NOT VIOLATE AN EXCLUSIONARY RULE. Exclusionary rules that prevent admissibility of relevant and material evidence are founded upon one or more of the following:

1. Policies related to truth-seeking (hearsay rules; dead man statutes)
2. Policies external to litigation (privileges)

Question 461

Evidence: Relevance: Determining Relevance: Exceptions–Certain Similar Occurrences Are Relevant: list 9

Answer 461

1. Causation
2. Prior False Claims or Same Bodily Injury
3. Similar Accidents or Injuries Caused by Same Event or Condition: admissible to prove that
   (i) a defect or dangerous condition existed;
   (ii) the defendant had knowledge of the defect or dangerous condition; and
   (iii) the defect or dangerous condition was the cause of the present injury.

(Absence of similar accidents admissible only to show defendant’s lack of knowledge of any danger.)

4. Previous Similar Acts Admissible to Prove Intent
5. Rebutting Claim of Impossibility
6. Sales of Similar Property: admissible to prove value (but uniqueness of real estate requires preliminary finding)
7. Habit: one’s regular response to a specific set of circumstances (as opposed to character that shows one’s disposition in respect to general traits) and is relevant to prove the conduct of the person on a particular occasion was in conformity with the habit.
8. Industrial or Business Routine: tends to show that a particular event occurred
9. Industrial Custom as Evidence of Standard of Care

Question 462

Evidence: Relevance: Exclusion of Relevant Evidence for Public Policy Reasons: Liability Insurance

Answer 462

1. Inadmissible to Show Negligence or Ability to Pay

2. When Admissible (to prove ownership or control, for purposes of impeachment, or as part of admission)

Question 463

Evidence: Relevance: Exclusion of Relevant Evidence for Public Policy Reasons: Subsequent Remedial Measures

Answer 463

1. Inadmissible to Prove Negligence or Culpable Conduct
2. When Admissible
   - -to prove ownership or control
   - -to rebut claim that precaution was not feasible
   - -to prove destruction of evidence

Question 464

Evidence: Relevance: Exclusion of Relevant Evidence for Public Policy Reasons: Settlement Offers–Negotiations Not Admissible

Answer 464

Evidence of compromises or offers to compromise is inadmissible to prove liability for or invalidity of a claim that is disputed as to validity or amount.

Such evidence is also inadmissible to impeach through a prior inconsistent statement.

However, “conduct or statements” made during compromise negotiations regarding a civil dispute with a governmental regulatory, investigative, or enforcement authority are not excluded when offered IN A CRIMINAL CASE.

1. Must be a claim
2. Claim must be disputed as to Liability or Amount

Question 465

Evidence: Relevance: Exclusion of Relevant Evidence for Public Policy Reasons: Withdrawn Guilty Pleas and Offers to Plead Guilty Not Admissible

Answer 465

Neither withdrawn guilty pleas, pleas of nolo contendere, offers to plead guilty, nor evidence of statements made in negotiating such pleas are admissible in any proceeding.

The EVIDENTIARY VALUE of a withdrawn plea of guilty as an admission is deemed OFFSET BY THE PREJUDICIAL EFFECT of the evidence.

Moreover, it is figured that the judge who permitted the withdrawal of the guilty plea must have allowed it for a good reason, so the significance of the initial plea is minimal.

1. Waiver: allowed unless there is an affirmative indication that the defendant entered the waiver agreement unknowingly or involuntarily.

Question 466

Evidence: Relevance: Character Evidence–Special Relevance Problem: Purposes for Offer of Character Evidence

Answer 466

1. To Prove Character When Character Itself is Ultimate Issue in Case
2. To Serve as Circumstantial Evidence of How a Person Probably Acted
3. To Impeach Credibility of a Witness

Question 467

Evidence: Relevance: Character Evidence–Special Relevance Problem: Means of Proving Character

Answer 467

Depending upon the jurisdiction, the purpose of the offer, and the nature of the case, the following types of evidence may be used to prove character:

1. Evidence of Specific Acts as Demonstrating Character
   - -permitted only in a few instances, such as where character is itself one of the ultimate issues in the case (but may be admitted if relevant for some other purpose)
2. Opinion Testimony
3. Testimony as to Person’s General Reputation in Community

Question 468

Evidence: Relevance: Character Evidence–Special Relevance Problem: Generally Not Admissible in Civil Cases

Answer 468

Evidence of character to prove the conduct of a person in the litigated event is generally not admissible in a civil case. The reasons given are that the slight probative value of character is outweighed by the danger of prejudice, the possible distraction of the jury from the main question in issue, and the possible waste of time required by examination of collateral issues.

1. Exception–When Character is Directly In Issue
   Any of the types of evidence (reputation, opinion, or specific acts) may be used to prove character when character is directly in issue.

Question 469

Evidence: Relevance: Character Evidence–Special Relevance Problem: Accused in a Criminal Case–Prosecution Cannot Initiate–But Accused Can

Answer 469

How Defendant Proves Character

REPUTATION AND PERSONAL OPINION TESTIMONY
A defendant puts her character in issue by calling a qualified witness to testify to the defendant’s good reputation (or that he has heard nothing bad) FOR THE TRAIT INVOLVED in the case. The witness may also give his personal opinion concerning the trait of the defendant. However, the witness may NOT testify to SPECIFIC ACTS OF CONDUCT of the defendant to prove the trait in issue.

TESTIFYING PLACES DEFENDANT’S CREDIBILITY–NOT CHARACTER–IN ISSUE
A defendant does not put her character in issue merely by taking the stand and giving testimony on the facts of the controversy. However, if the defendant takes the stand, she puts her credibility in issue and is subject to impeachment.

2. How Prosecution Rebuts Defendant’s Character Evidence
   If the defendant puts her character in issue by having a character witness testify as to his opinion of the defendant or the defendant’s reputation, the prosecution may rebut in the following manner.

CROSS EXAMINATION
One is allowed to inquire on cross whether the reputation witness KNOWS OF or has HEARD of particular instances of the defendant’s misconduct pertinent to the trait in question. If witness denies knowledge of these instances, the prosecutor MAY NOT prove them by extrinsic evidence.

TESTIMONY OF OTHER WITNESSES AS TO DEFENDANT’S BAD REPUTATION

Question 470

Evidence: Relevance: Character Evidence–Special Relevance Problem: Victim in Criminal Case

Answer 470

DEFENDANT’S INITIATIVE
Defendant may introduce reputation or opinion evidence of a bad character trait of the alleged crime victim when it is relevant to show the defendant’s innocence. (except for rape victims)

PROSECUTION REBUTTAL
Once the defendant has introduced evidence of a bad character trait of the alleged victim, the prosecution may counter with reputation or opinion evidence of
(i) the VICTIM’S GOOD CHARACTER; or
(ii) the DEFENDANT’S BAD CHARACTER for the SAME TRAIT

HOMICIDE CASES–VICTIM’S CHARACTER FOR PEACEFULNESS TO REBUT SELF DEFENSE CLAIM
In a HOMICIDE CASE in which the defendant pleads SELF DEFENSE, evidence of any kind that the victim was the first aggressor opens the door to evidence that the victim had good character for peacefulness.

RAPE CASES–VICTIM’S PAST BEHAVIOR INADMISSIBLE
In any civil or criminal proceeding involving alleged sexual misconduct, evidence offered to prove the sexual behavior or sexual disposition of the alleged victim is generally inadmissible.

1. Exceptions in Criminal Cases: admissible
   - -to prove that a person other than the accused was the SOURCE OF SEMEN, INJURY, OR OTHER PHYSICAL EVIDENCE
   - -to prove consent (specific instances of sexual behavior between the two parties)
2. Exceptions in Civil Cases: admissible
   - -if allowed otherwise by the rules
   - -victim’s reputation is admissible only if has been placed in controversy by the victim
3. Procedure
   Must file motion 14 days before trial describing the evidence and its purpose, and must serve the motion on all parties and notify the victim. Before admitting the evidence, the court must conduct an in camera hearing and afford the victim and the parties a right to be heard.

Question 471

Evidence: Relevance: Character Evidence–Special Relevance Problem: Specific Acts of Misconduct Generally Inadmissible

Answer 471

The general rule is that when a person is charged with one crime, extrinsic evidence of her other crimes or misconduct is inadmissible if such evidence is offered solely to establish a criminal disposition.

ADMISSIBLE IF INDEPENDENTLY RELEVANT

• -motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake
• -admissible in criminal or civil case, although in criminal, must provide notice prior to trial of the general nature of any of this type of evidence the prosecutor intends to introduce at trial

PRIOR ACTS OF SEXUAL ASSAULT OR CHILD MOLESTATION
Admissible in civil or criminal case where the defendant is accused of committing an act of sexual assault or child molestation.
Must disclose to defendant 15 days before trial.

Question 472

Evidence: Judicial Notice: Judicial Notice of Fact: Facts Appropriate for Judicial Notice

Answer 472

Judicial notice is the RECOGNITION OF A FACT AS TRUE WITHOUT FORMAL PRESENTATION OF EVIDENCE.

FACTS APPROPRIATE FOR JUDICIAL NOTICE
One not subject to reasonable dispute in that it is either
(i) generally known within the territorial jurisdiction of the trial court
(ii) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned

Judicial notice may be taken of such facts AT ANY TIME, whether or not requested, and such notice is mandatory if a party requests and supplied the court with the necessary information. A party is entitled to be heard on the propriety of taking judicial notice and the tenor of the matter noted.

Matters of Common Knowledge in the Community–Notorious Facts

Facts Capable of Certain Verification–Manifest Facts

Judicial Notice of Scientific Principles

Judges Personal Knowledge

Question 473

Evidence: Judicial Notice: Judicial Notice of Fact: Procedural Aspects of Judicial Notice

Answer 473

Requirement of a Request:
Party must formally request judicial notice where the court does not take notice on its own accord.

Judicial Notice by Appellate Court: may be taken for the first time on appeal. Appellate court must take notice of any matter that the trial court properly noticed or was obliged to notice.

Conclusiveness of Judicial Notice

• -conclusive in a civil case
• -not conclusive in a criminal case–judge shall instruct the jury that it may accept as conclusive

Question 474

Evidence: Real Evidence: General Conditions of Admissibility: Authentication

Answer 474

Recognition Testimony
If the object has significant features that make it identifiable upon inspection, a witness may authenticate the object by testifying that it is what the proponent claims it is.

Chain of Custody
If the evidence is of the type that is likely to be confused or can be easily tampered with, the proponent of the object must present evidence of chain of custody. The proponent must show that the object has been held in a substantially UNBROKEN CHAIN OF POSSESSION. The proponent need not negate all possibilities of substitution or tampering but must show adherence to some system of identification and custody.

Question 475

Evidence: Documentary Evidence: Authentication: Evidence of Authenticity: specific examples

Answer 475

ADMISSIONS: a writing may be authenticated by evidence that the party against whom the writing is offered has either ADMITTED its authenticity or ACTED UPON the writing as authentic.

TESTIMONY OF EYEWITNESS: writing may authenticated by testimony of one who SEES IT EXECUTED or HEARS IT ACKNOWLEDGED. Modern statutes eliminate the common law necessit yof producing a subscribing witness unless specifically required by statute. If subscribing witness doesn’t recollect the execution of the writing, it does not preclude authentication by other evidence.

HANDWRITING VERIFICATIONS
1. Nonexpert Opinion: a lay witness who has personal knowledge of the handwriting of the supposed writer may state his opinion as to whether the document is in that person’s handwriting. (Cannot become familiar with handwriting merely for the purpose of testifying.)

2. Comparison of Writings
   - -Expert witness
   - -Trier of fact (jury)

ANCIENT DOCUMENTS
May be authenticated by evidence that it
–is at least 20 YEARS OLD
–is in such condition as to be FREE FROM SUSPICION concerning its authenticity; and
–was FOUND IN A PLACE where such writing, if authentic would likely be kept

Federal rules applies to all writings, but most jurisdictions limit the ancient document rule to DISPOSITIVE INSTRUMENTS (deeds, wills) that are over 30 YEARS OLD.

REPLY LETTER DOCTRINE
A writing may be authenticated by evidence that it was written in response to a communication sent to the claimed author. The content of the letter must make it unlikely that it was written by anyone other than the claimed author of the writing.

PHOTOGRAPHS
General rule is admissible only if identified by a witness as a portrayal of certain facts relevant to the issue and verified by the witness as a correct representation of those facts. It suffices if the witness who identifies the photograph is familiar with the scene or object that is depicted. In general, it is NOT NECESSARY TO CALL THE PHOTOGRAPHER to authenticate the photograph.

–Unattended Camera–Proper Operation of Camera
In some situations, a photograph will portray an event that was observed ONLY by the camera. Such a photograph may be admitted upon a showing that the camera was properly operating at the relevant time and that the photograph was developed from film obtained from the camera.

X-RAY PICTURES, ELECTROCARDIOGRAMS, ETC

1. Must be shown that the PROCESS USED IS ACCURATE.
2. Must be shown that the MACHINE ITSELF WAS IN WORKING ORDER and the OPERATOR WAS QUALIFIED to operate it.
3. A CUSTODIAL CHAIN must be established to forestall the danger that the evidence has been substituted or “tampered” with.

Question 476

Evidence: Documentary Evidence: Authentication: Compare–Authentication of Oral Statements

Answer 476

Oral statements often require authentication as to the IDENTITY OF THE SPEAKER. Although this is technically a “relevance” topic, the rules are the same as those that apply to the authentication of documents.

1. When Necessary
   Not all oral statements need to authenticated; only where the identity of the speaker is important is authentication required.
2. Methods of Authentication
   - -voice identification: by the opinion of anyone who has heard the voice at any time (can become familiar for purpose of testifying)
   - -telephone conversation: by one of the parties to the call who testifies to one of the following:
   (i) he recognized the other party’s voice
   (ii) the speaker has knowledge of certain facts that only a particular person would have
   (iii) he called, for example, Mr. A’s telephone number, and a voice answer, “This is Mr. A” or “this is the A residence.” This authenticates the conversation as being between Mr. A or his agent.
   (iv) he called the person’s business establishment and talked with the person answering the phone about matters relevant to the business. This is sufficient to show that the person answering the phone held a position in the business.

Question 477

Evidence: Documentary Evidence: Best Evidence Rule: Nonapplicability of the Rule

Answer 477

1. Fact to be Proved exists independent of a writing
2. Writing is collateral to litigated issue
3. summaries of voluminous records
4. public records

Question 478

Evidence: Documentary Evidence: Best Evidence Rule: Defnitions of Writings, original, and duplicate

Answer 478

WRITINGS AND RECORDINGS
Defined broadly as “letters, words, or numbers, or their equivalent; set down by handwriting, typewriting, printing, photostating, or photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation.

PHOTOGRAPHS
More narrowly defined as “still photographs, X-ray films, and motion pictures.

ORIGINAL
An original is the writing or recording itself or any copy intended by the person executing it to have the same effect as an original. With respect to a photograph, original includes the negative or any print from it. For computer stored data, the original is any printout or other output readable by sight.

ADMISSIBILITY OF DUPLICATES
Federal Rules define a duplicate as “a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography . . . or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent technique which accurately reproduces the original .

A duplicate is an EXACT COPY OF AN ORIGINAL

Duplicates are admissible the same as originals in federal courts UNLESS:

(i) the authenticity of the original is challenged, or
(ii) under the circumstances, it would be unfair to admit the duplicate in place of the original.

Question 479

Evidence: Documentary Evidence: Best Evidence Rule: Admissibility of Secondary Evidence of Contents

Answer 479

If the proponent cannot produce the original writing or recording in court, he may offer secondary evidence of its contents in the form of copies, notes, or oral testimony about the contents of the original if a satisfactory explanation is given for the nonproduction of the original.

1. Satisfactory Foundation
   A valid excuse justifying the admissibility of secondary evidence would include:
   –Loss or Destruction of the Original
   –Original Outside the Jurisdiction and Unobtainable
   –Original in Possession of Adversary who, After Notice, Fails to Produce
2. No Degrees of Secondary Evidence: once original cannot be produced, any kind of secondary evidence can be produced (different rule in most state courts)
3. Testimony or Written Admission of party

Question 480

Evidence: Documentary Evidence: Parol Evidence Rule: Noapplicability of Parol Evidence Rule

Answer 480

Parol evidence rule does not apply to exclude evidence of prior or contemporaneous agreements on the following issues:

1. Completion of Incomplete or Ambiguous Contract
2. Reformation of Contract
3. Challenge to Validity of Contract

Question 481

Evidence: Testimonial Evidence: Competency of Witnesses: Basic Testimonial Qualifications

Answer 481

Witnesses are not “authenticated” in the same sense as real or documentary evidence to give testimony. Unlike the authentication situation pertaining to real or documentary proof, witnesses are generally PRESUMED TO BE COMPETENT until the contrary is demonstrated.

BASIC TESTIMONIAL QUALIFICATIONS

1. Ability to Observe–Perception
2. Ability to Remember–Memory
3. Ability to Relate–Communication
4. Appreciation of Oath Obligation

Question 482

Evidence: Testimonial Evidence: Competency of Witnesses: Federal Rules of Competency

Answer 482

PERSONAL KNOWLEDGE AND OATH REQUIRED
Federal Rule provides that “Every person is competent to be a witness except as otherwise provided by these rules.”

1. The witness must have personal knowledge of the matter he is to testify about.
2. The witness must declare he will testify truthfully, by oath or affirmation.

USE OF INTERPRETER
Interpreter must be qualified and must take an oath to make a true translation.

APPLICABILITY OF STATE RULES IN DIVERSITY CASES

Question 483

Evidence: Testimonial Evidence: Competency of Witnesses: Modern Modifications of Common Law Disqualifications

Answer 483

1. Lack of Religous Belief–no longer a basis for exclusion
2. Infancy– no precise age; depends on the child
3. Insanity–even adjudicated insane may testify provided he understands the requirement to speak truthfully and has the capacity to give a correct account of his personal knowledge.
4. Conviction of Crime–may affect credibility
5. Interest–abolished except for Dead Man Statutes in some states.
6. Judge as Witness–may not testify as witness and no objection need be made to preserve the point
7. Juror as Witness–incompetent to testify because cannot impartially weigh their own testimony

Question 484

Evidence: Testimonial Evidence: Competency of Witnesses: Dead Man Acts

Answer 484

Last remaining vestiges of true incompetency of a witness appears in the Dead Man Acts. State statutes. Rules vary with states.

RATIONALE
Generally provide that a party or person interested in the event, or his predecessor in interest is incompetent to testify to a PERSONAL TRANSACTION OR COMMUNICATION WITH A DECEASED, when such testimony is offered against the representative or successors in interest of the deceased. The rationale of the statute is to PROTECT ESTATES FROM PERJURED CLAIMS. The assumption is that the survivor claimant may lie, since the deceased cannot talk back.

COMMON ELEMENTS
1. Applicable to Civil Cases Only

2. Protected Parties: statute designed to protect those who claim directly under the decedent. These usually include an executor, administrator, heir, legatee, and devisee. If a protected party is on either side of the lawsuit, the statute applies to prevent an interested person from testifying on his own behalf.
3. Interested Person: stands to gain or lose by the direct and immediate operation of the judgment, or if the judgment may be used for or against him in a subequent action.

Party adverse to Protected Party is always an interested person who will be incompetent to testify.

4. Exceptions and Waiver of the Act

Facts Occurring After Death

Door Openers

• -if the protected party calls the interested party to testify about the transaction
• -where the testimony of the deceased given at a former trial or at a deposition is read in evidence
• -where there is a failure to make timely and proper objection to the incompetency of the witness
• -if the protected party testifies to a transaction with the interested party

Question 485

Evidence: Testimonial Evidence: Form of Examination of Witness: Leading Questions

Answer 485

1. Generally Objectionable
   Question that suggests to the witness the fact that the examiner expects and wants to have confirmed. Includes questions calling for yes and no answers and questions framed to suggest the answer desired.
2. When Permitted
   - -on cross examination

• -on direct examination in noncrucial areas if no objection is made
  (i) if used to elicit preliminary or introductory matter
  (ii) when the witness needs aid to respond because of loss of memory, immaturity, or physical or mental weakness
  (iii) when the witness is hostile and improperly uncooperative, an adverse party, or a person identified with an adverse party

-

Question 486

Evidence: Testimonial Evidence: Form of Examination of Witness: Improper Questions and Answer

Answer 486

1. Misleading
2. Compound
3. Argumentative
4. Conclusionary
5. Assuming Facts not in Evidence
6. Cumulative
7. Harassing or Embarrassing
8. Calls for a Narrative Answer
9. Calls for Speculation
10. Lack of Foundation
11. Nonresponsive Answer

Question 487

Evidence: Testimonial Evidence: Opinion Testimony: Opinion Testimony by Lay Witness

Answer 487

1. General Rules of Inadmissibility
   Opinions by lay witnesses are generally inadmissible. However, there are many cases where, from the nature of the subject matter, no better evidence can be obtained. In these cases, where the event is likely to e perceived as a whole impression (e.g., intoxication, speed) rather than as more specific components, opinions by law witnesses are generally admitted.
2. When Admissible
   In most jurisdictions and under the Federal Rules, opinion testimony by law witnesses is admissible when :
   (i) it is rationally BASED ON THE PERCEPTION OF THE WITNESS;
   (II) it is HELPFUL TO A CLEAR UNDERSTANDING of her testimony or to the determination of a fact in issue; and
   (iii) it is NOT BASED ON SCIENTIFIC, TECHNICAL, OR OTHER SPECIALIZED KNOWLEDGE (if so based, the witness’s testimony would need to meet the requirements for expert testimony).

Some jurisdictions are stricter and allow only in cases of “necessity” when it is difficult for the witness to express her perception in any form other than opinion.

3. Procedure
   Proper foundation must be laid by showing that the witness had the opportunity to observe the event that forms the basis of her opinion. Additionally, the court in its discretion may require a witness to state the facts observed before stating her opinion.
4. Situations where opinions of lay witnesses are admissible
   - -general appearance of condition of a person
   - -state of emotion
   - -matters involving sense recognition
   - -voice or handwriting identification
   - -speed of moving object
   - -value of own services
   - -rational or irrational nature of another’s conduct (sanity)
   - -intoxication
5. situations where opinions of lay witnesses are not admissible
   - -agency or authorization: may not state a conclusion as to her authorization. Rather she must be asked by whom she was employed and the nature, terms, and surrounding circumstances of her employment.
   - -contract or agreement: may not state opinion that an agreement was made. Rather, she must be asked about the facts, the existence or nonexistence of which establish whether a contract existed.

Question 488

Evidence: Testimonial Evidence: Opinion Testimony: Opinion Testimony by Expert Witnesses: Requirements of Expert Testimony: Subject Matter Must be Appropriate for Expert Testimony

Answer 488

Subject matter is one where scientific, technical, or other specialized knowledge would assist the trier of fact in understanding the evidence or determining a fact in issue.

Test of assistance to the trier of fact subdivides into two requirements:

• -opinion must be RELEVANT; and
• -methodology underlying it must be RELIABLE

Reliable: expert testimony must satisfy the trial judge by a preponderance of the evidence that (a) the opinion is based on sufficient facts or data; (b) the opinion is the product of reliable principles and methods; and (c) the expert has reliably applied the principles and methods to the facts of the case.

Question 489

Evidence: Testimonial Evidence: Opinion Testimony: Cross Examination

Answer 489

Cross examination of adverse witnesses is a matter of right in every trial of a disputed issue of fact. It is recognized as the MOST EFFICACIOUS TRUTH-DISCOVERING DEVICE. Hearsay is excluded because it cannot be subjected to cross examination. If adequate cross examination is prevented by the death, illness, or refusal of a witness to testify on cross-examination, the direct examination is rendered incompetent and will be stricken.

Restriction on Scope

• -matters brought out on DIRECT EXAMINATION and the inferences naturally drawn from those matters
• -matters affecting the CREDIBILITY OF THE WITNESS

Collateral Matters
General rule is that the cross-examiner is BOUND BY THE ANSWER OF THE WITNESS to questions concerning collateral matters. Cannot refute by introducing extrinsic evidence. (exceptions: bias, interest)

Question 490

Evidence: Testimonial Evidence: Credibility–Impeachment: Accrediting or Bolstering

Answer 490

General Rule–No Bolstering Until Witness Impeached

Exceptions
The rule against accrediting is subject to exception where timeliness may raise an inference on the substantive issues of the case.

Timely Complaint
Prior Identification

Question 491

Evidence: Testimonial Evidence: Credibility–Impeachment: Impeachment Methods–Cross examination and extrinsic evidence

Answer 491

Any party may impeach any witness, even their own.

A witness may be impeached by cross-examination or by extrinsic evidence (testimony of other witnesses)

PRIOR INCONSISTENT STATEMENTS
For the purpose of impeachment, a party may show that the witness has, on another occasion, made statements that are inconsistent with some material part of his present testimony.
Under the federal rules, an inconsistent statement may be proved by either cross examination or extrinsic evidence.

To prove by extrinsic evidence:

• -lay a foundation by giving witness opportunity to explain or deny the inconsistent statement (if possible)
• -evidentiary effect: usually hearsay, but if made under oath it is admissible nonhearsay

BIAS OR INTEREST
Shows that speaker has a motive to lie.

Foundation: most courts require that before a witness can be impeached by extrinsic evidence of bias or interest, he must first be asked about the facts that show bias or interest on cross-examination. If the witness admits the facts claimed to show bias or interest, it is within the trial judges discretion to decide whether extrinsic evidence may be introduced as further proof of his interest or bias.

Justification for Bias: no evidence may be admitted to show that the bias was justified

CONVICTION OF A CRIME
May be proved by eliciting an admission on direct or cross examination or by the record of conviction.

Actual Conviction Required (not just arrest or indictment)

Type of Crime

ANY CRIME involving dishonesty or false statement
–trial court has no discretion

ANY FELONY not involving dishonesty

• -if witness being impeached is the accused, the government must show that its probative value as impeachment outweighs its prejudicial effect
• -witness other than accused, but court retains discretion

Must not be too remote: NO MORE THAN 10 YEARS

Juvenile adjudication generally not admissible.

Effect of pardon depends on basis (based on innocence or hasn’t commited a crime within one year)

Pending appeal does not affect admissibility

constitutionally defective conviction invalid for all purposes

Means of proof:

• -admission of the witness
• -introducing the record (no foundation need be laid)

SPECIFIC INSTANCES OF MISCONDUCT–BAD ACTS

General Rule–Interrogation Permitted
A witness may be interrogated upon cross examination with respect to any immoral, vicious, or criminal act of his life that may AFFECT HIS CHARACTER and show him to be UNWORTHY OF BELIEF. Inquiry into bad acts is permitted even though the witness was never convicted.

Counsel must inquire in good faith.

Extrinsic evidence not permitted. A specific act of misconduct, offered to attack the witness’s character for truthfulness, can be elicited ONLY ON CROSS EXAMINATION of the witness. If the witness denies the act, the cross-examiner cannot refute the answer by calling other witnesses or producing other evidence. It is usually not improper for the cross-examiner, acting in good faith, to continue the cross-examination after a denial in the hope that the witness will change his answer.

OPINION OR REPUTATION EVIDENCE FOR TRUTHFULNESS

SENSORY DEFICIENCIES

CONTRADICTORY FACTS

• -witness’s testimony on a particular fact is a MATERIAL ISSUE in the case
• -testimony on a particular fact is SIGNIFICANT ON THE ISSUE OF CREDIBILITY
• -where the witness volunteers testimony about a SUBJECT AS TO WHICH THE OPPOSING PARTY WOULD OTHERWISE BE PRECLUDED FROM OFFERING evidence
• -not COLLATERAL facts

Question 492

Evidence: Testimonial Evidence: Credibility–Impeachment: Rehabilitation

Answer 492

1. Explanation on Redirect
2. Good Reputation for Truthfulness
3. Prior Consistent Statement
   - -generally not permitted unless the opposing counsel has made an express or implied charge that the witness is lying or exaggerating because of some motive, then counsel may introduce a prior (to motive event) consistent statement

Question 493

Evidence: Testimonial Evidence: Objections, Exceptions, Offers of Proof: Objections

Answer 493

Unless an objection is made by opposing counsel, almost any kind of evidence will be admitted. Failure to object is deemed a WAIVER of any ground for objection. Judge need not raise grounds for objections on her own, but may take notice of plain errors affecting substantial rights.

1. Objections to Trial Testimony
   - -should be made after the question, but before the answer
   - -motion to strike as soon as the witness’s answer emerges as inadmissible
2. Objections to Deposition Testimony
   - -objections to the FORM (leading) are waived unless made during the deposition, thereby affording counsel an opportunity to correct the form of his question
   - -objection based on a TESTIMONIAL PRIVILEGE should also be made then, lest it be deemed waived.
   - -objections going to the substance of a question or answer (relevance, hearsay) can be postponed until the deposition is offered in evidence
3. Specificity of Objections
   An objection may be either general or specific. The importance of whether general or specific goes to the extent to which each type preserves the evidentiary issue on appeal.

General Objection Sustained
Upheld on appeal if there was ANY GROUND for the objection.

General Objection Overruled (and evidence admitted)
Not available on appeal unless the evidence was NOT ADMISSIBLE UNDER ANY CIRCUMSTANCES for any purpose.

4. Opening the door
   One who introduces evidence has thereby asserted its relevance, and cannot object on relevance grounds.
5. Effect of Introducing part of transaction
   Adverse party can require rest of transaction be introduced
6. motion to strike–unresponsive answers
   By examining counsel, but not by opposing counsel.

Question 494

Evidence: Testimonial Evidence: Objections, Exceptions, Offers of Proof: Offers of Proof

Answer 494

On some occasions, error cannot be based on exclusion of evidence unless there has been an “offer of proof” that discloses the nature, purpose, and admissibility of the rejected evidence. There are three types of offers of proof.

1. Witness offer
   Subject to a sustained objection by opposing counsel, the examining counsel proceeds with his examination of a witness on the stand, out of the jury’s hearing, thus making his record by the question-and-answer method.
2. lawyer offer
   Counsel himself states, in narrative form, what the witness would have testified had he been permitted to do so.
3. tangible offer

Question 495

Evidence: Testimonial Evidence: Testimonial PRivileges: Physician Patient Privilege

Answer 495

ELEMENTS
Professional Member of Relationship Must be Present

Information Must be Acquired While Attending Patient

Information must be Necessary for Treatment

NONAPPLICABILITY OF PRIVILEGE
Patient Puts Physical Condition in Issue
In Aid of Wrongdoing
Dispute Between Physician and Patient
Agreement to Waive the Privilege: patient can
Federal Cases Applying Federal Law of Privilege

CRIMINAL PROCEEDINGS
Split of authority

PATIENT HOLDS THE PRIVILEGE

Question 496

Evidence: Testimonial Evidence: Testimonial Privileges: Husband-wife Privilege

Answer 496

1. Spousal Immunity–Privilege Not to Testify in Criminal Cases

Federal Court: privilege belongs to the witness-spouse
Some State Courts: privilege belongs to party-spouse
Valid marriage required.
Immunity May be Asserted Only During Marriage

2. Privilege for confidential Marital communications

Both Spouses Hold Privilege
Communication made during marital relationship
Privilege made in reliance upon the intimacy

3. nonapplication of privileges
   Actions between spouses.
   Cases involving crimes against the testifying spouse or either spouse’s children

Question 497

Evidence: Testimonial Evidence: Testimonial PRivileges: Privilege against self incrimination

Answer 497

1. Incriminating defined: ties the witness to the commission of a CRIME or would furnish a lead to evidence tying the witness to a crime; cannot be used to avoid civil liability
2. When privilege applies
   Privilege can be claimed at any state or federal proceeding, whether civil or criminal, where the witness’s appearance and testimony are compelled. Can be invoked only by natural persons, not corporations or associations.

Question 498

Evidence: Testimonial Evidence: Testimonial PRivileges: Governmental privileges

Answer 498

1. Identity of Informer

Privilege can be claimed by an appropriate representative of the government.

No privilege if identity otherwise voluntarily disclosed

Judge may dismiss if informer’s testimony crucial.

2. Official Information

Made by or to public officials.
Applies to fairly low level communications.

Question 499

Evidence: Hearsay Rule: Statement of the Rule: Reason for Excluding Hearsay

Answer 499

The reason for excluding hearsay is that the adverse party was DENIED THE OPPORTUNITY TO CROSS-EXAMINE THE DECLARANT.

1. Cross-examination of declarant
2. cross-examination at time statement made

Question 500

Evidence: Hearsay Rule: Statement of the Rule: Statement

Answer 500

1. Oral Statements
2. Writings
3. Assertive Conduct
4. Nonassertive conduct: under modern codes and federal rules, evidence of nonassertive conduct is not hearsay.

NONHUMAN DECLARATIONS–NOT HEARSAY–issue is relevance or reliability

Question 501

Evidence: Hearsay Rule: Statement of the Rule: Offered to Prove the Truth of the matter

Answer 501

Most important component of the hearsay rule.

Examples of out-of-court statements that are not hearsay.

1. Verbal acts or legally operative facts
   There are certain utterances to which the law attaches legal significance (words of contract, defamation, bribery, cancellation, permission). Evidence of such statements is not hearsay because the issue is whether the statements were made.
2. statements offered to show effect on hearer or reader
   example–knowledge or notice, motive, etc.
3. statements offered as circumstantial evidence of Declarant’s state of mind
   Not to show the truth of the statment, but that declarant believed the statement to be true (insanity)

Compare–state of mind exception are hearsay but admissible under an exception to the rule

Question 502

Evidence: Hearsay Rule: Statements that are Nonhearsay under the Federal Rules: Prior Statement by Witness

Answer 502

1. Prior Inconsistent Statement: if made under oath at a prior proceeding or deposition.
2. Prior Consistent Statement: regardless of whether made under oath if offered to rebut an express or implied charge that the witness is lying or exaggerating because of some motive to lie or exaggerate. The prior statement must be before the alleged motive came into being.
3. Prior Statement of Identification

Question 503

Evidence: Hearsay Rule: Statements that are Nonhearsay under the Federal Rules: Admissions by Party Opponent

Answer 503

An admission is a statement made or act done that amounts to a PRIOR ACKNOWLEDGMENT by one of the parties to an action of one of the relevant facts.

If the party said or did something that now turns out to be inconsistent with his contentions at trial, the law simply regards him as ESTOPPED from preventing its admission into evidence.

He can explain the statement if he can.

Statement need not have been against his interest at the time it was made.

Statement may be in the form of an opinion.

Personal knowledge not required.

Formal judicial admissions are conclusive and cannot be explained.

Adoptive admissions: a party may expressly or impliedly adopt someone else’s statement as his own.

Silence when a reasonable person would have spoken up as long as he heard and understood the statement, was physically and mentally capable of denying the statement, and a reasonable person would have denied the statement under the same circumstances.

Question 504

Evidence: Hearsay Rule: Hearsay Exceptions–Declarant Unavailable: Statements against interest

Answer 504

Statement must have been AGAINST PECUNIARY, PROPRIETARY, OR PENAL INTEREST WHEN MADE.

Declarant must have had PERSONAL KNOWLEDGE OF THE FACTS.

Declarant must have been AWARE THAT THE STATEMENT IS AGAINST HER INTEREST and she must have had NO MOTIVE TO MISREPRESENT when she made the statement.

Declarant must be UNAVAILABLE AS A WITNESS.

Risk of Criminal Liability: NEED CORROBORATING CIRCUMSTANCE INDICATING TRUSTWORTHINESS OF STATEMENTS

Statement Means Single Remark (excise out of rest of declaration)

Question 505

Evidence: Hearsay Rule: Hearsay Exceptions–Declarant Unavailable: Statement of Personal or Family History

Answer 505

1. Statement Need not have been made before controversy
2. Usually declarant must be a family member
3. personal knowledge required of facts involved or her knowledge of the reputation of the family
4. other ways to prove pedigree: vital statistics, marriage certificates, etc.

Question 506

Evidence: Hearsay Rule: Hearsay Exceptions–Declarant’s Availability Immaterial: Present State of Mind

Answer 506

A statement of a declarant’s then-existing state of mind, emotion, sensation, or physical condition is admissible.

Admissible when:

1. state of mind directly in issue and material to the controversy; or
2. offered to show subsequent acts of declarant

Statements of memory or belief generally not admissible.

Question 507

Evidence: Hearsay Rule: Hearsay Exceptions–Declarant’s Availability Immaterial: Excited utterances

Answer 507

1. Startling event required

2. Declaration must be made while under stress of excitement

Question 508

Evidence: Hearsay Rule: Hearsay Exceptions–Declarant’s Availability Immaterial: Present Sense Impression

Answer 508

Comment Made Concurrently with Sense Impression

Cannot have a time lapse.

Question 509

Evidence: Hearsay Rule: Hearsay Exceptions–Declarant’s Availability Immaterial: Declaration of Physical Condition

Answer 509

1. Present Bodily Condition – admissible

2. Past Bodily Condition – Admissible if to Assist diagnosis or treatment

Question 510

Evidence: Hearsay Rule: Hearsay Exceptions–Declarant’s Availability Immaterial: Business Records

Answer 510

Elements:

Business: includes every association, profession, occupation, and calling, whether or not conducted for profit

Entry Made in Regular Course of Business and It Was Customary to Make that Type of Entry Involved (entrant had a duty to make the entry)

exception: made in preparation for litigation, but in court’s discretion

Business record must consist of matters within the personal knowledge of the entrant or within the personal knowledge of someone with a business duty to transmit such matters to the entrant.

Entry must be made near time of event.

Authenticity of record must be established, usually by testimony of custodian or other qualified witness.

Entrant need not be available.

LACK OF BUSINESS RECORDS CAN BE USED TO PROVE NO TRANSACTION

Question 511

Evidence: Hearsay Rule: Hearsay Exceptions–Declarant’s Availability Immaterial: Official Records and Other Official writings

Answer 511

1. Public Records and Reports
2. Records of Vital Statistics
3. Statements of Absence of Public Record (inferential proof that matter did not occur)
4. Judgments

Question 512

Evidence: Hearsay Rule: Constitutional Issues: The Confrontation Clause

Answer 512

In criminal cases, it may be argued that the use of hearsay evidence violates the accused’s RIGHT TO CONFRONT AND CROSS EXAMINE the witnesses against him. Note, however, that there is generally no Confrontational Clause problem if the hearsay declarant is present at the time of trial and is subject to cross-examination at that time.

PRIOR TESTIMONIAL STATEMENT OF UNAVAILABLE WITNESS
Under the Confrontation Clause, a hearsay statement will NOT be admitted (even if it falls within a hearsay exception) when:

1. The statement is offered AGAINST THE ACCUSED IN A CRIMINAL CASE;
2. The declarant is unavailable;
3. The statement was TESTIMONIAL in nature; AND
4. The accused had NO OPPORTUNITY TO CROSS EXAMINE the declarant’s testimonial statement prior to trial.

TESTIMONIAL STATEMENT:
–statements made in the course of police interrogation when the primary purpose of the interrogation is to establish or prove past events potentially relevant to a later criminal prosecution
(as opposed to enable police to help in an ongoing emergency)
–affidavits or written reports of forensic analysis are testimonial and may not be admitted into evidence unless the analyst is unavailable and the defendant previously had an opportunity to cross-examine

Confrontration Clause Rights May be Forfeited by Wrongdoing intended to keep the witness from testifying.

The Right to Physically Face Witnesses
Not absolute: child behind screen violation; child on one way closed circuit TV ok if the trial judge makes individual findings of probable trauma to the child

Question 513

Evidence: Procedural Considerations:Burdens of Proof: Burden of Producing or Going Forward with Evidence (2)

Answer 513

1. Produce Sufficient Evidence to Raise Question of Fact for Jury and avoid judgment against her as a matter of law.
2. Prima Facie Case May shift burden of Production to defendant

Question 514

Evidence: Procedural Considerations: Burdens of Proof: Burden of Persuasion (Proof) (3)

Answer 514

1. Determined by Jury after all evidence is isn
2. Jury Instructed as to which party has burden of persuasion
3. Quantum or Measure of Proof

Question 515

Evidence: Procedural Considerations: Presumptions: Rebutting a Presumption

Answer 515

A presumption is overcome or destroyed when the adversary produces some evidence contradicting the presumed fact. In other words, the PRESUMPTION IS OF NO FORCE OR EFFECT when sufficient contrary evidence is admitted.

Amount of Controversy Evidence Necessary: never been clearly articulated; different in different cases

Question 516

Evidence: Procedural Considerations: Presumptions: Distinguish True Presumptions from Inferences and Substantive Law

Answer 516

The true presumption with its mandatory rebuttable inference should not be confused with inferences and rules of substantive law.

PERMISSIBLE INFERENCES
The permissible inference (prima facie case or sometimes erroneously called “presumption of fact”) will allow a party to meet the burden of production but WILL NOT SHIFT THE BURDEN to the adversary. Examples of situations giving rise to permissible inferences are:

–Res Ipsa Loquitor
A permissible inference of negligence arises where this type of accident ordinarily occurs because of the negligence of someone in the defendant’s position.

–Spoliation or Withholding Evidence
The intentional destruction or mutilation of relevant evidence may give rise to an inference that the destroyed evidence is unfavorable to the spoliator. Same with withholding evidence.

–Undue Influence
Where the attorney who drafted a will is its principal beneficiary to the exclusion of the natural objects of the testator’s bounty, an inference of undue influence may be found.

PRESUMPTIONS IN CRIMINAL CASES

–Accused is presumptively innocent–because the burden does not shift to the accused the burden of producing evidence, this is not a presumption but a PERMISSIBLE INFERENCE.

–Judge’s Instructions on Presumed Facts Against Accused: the trial judge in a criminal case is not free to charge the jury that it MUST find a presumed fact against the accused. When the existence of a presumed fact is submitted to the jury, the judge shall instruct the jury that it MAY regard the basic facts as sufficient evidence of the presumed fact, but that it is not required by law to do so. If the presumed fact establishes guilt, is an element of the offense, or negates a defense, its existence must be found beyond a reasonable doubt.

CONCLUSIVE PRESUMPTIONS
This form of inference goes beyond the true presumption since it CANNOT BE REBUTTED by contrary evidence–it really is a rule of substantive law.

Question 517

Evidence: Procedural Considerations: Presumptions: Specific Presumptions (12)

Answer 517

1. of Legitimacy
2. Against Suicide
3. of Sanity
4. of Death from Absence
5. from Ownership of Car–Agent Driver
6. of Chastity
7. of Regularity
8. of Continuance
9. of mail Delivery
10. of Solvency
11. of Bailee’s Negligence
12. of Marriage

Question 518

Property: Estates in Land: Present Possessory Estates: Defeasible Fees

Answer 518

Defeasible fees are fee simple estate of POTENTIALLY infinite duration that can be terminated by the happening of a specified event. Because defeasible fees can result in forfeitures, courts will construe, where possible, a purported limitation as a mere declaration of the grantor’s purpose or motive for making the grant.

FEE SIMPLE DETERMINABLE (AND POSSIBILITY OF REVERTER)
Automatically terminates at the happening of a stated event and goes back to the grantor.
Created by the use of duration, adverbial language, such as “for so long as” “while” “during” or “until”

FEE SIMPLE SUBJECT SUBJECT TO CONDITION SUBSEQUENT (AND RIGHT OF ENTRY)
Grantor retains the power to terminate the estate of the grantee upon the happening of a specified event. Upon the happening of the event stated in the conveyance, the estate of the grantee continues until the grantor exercises his power of termination by bringing suit or making reentry.
Created by the use of “upon condition that,” “provided that,” “but if,” and “if it happens that”
Waiver of right of entry: inaction by itself is not a waiver unless there was detrimental reliance by the fee holder

FEE SIMPLE SUBJECT TO AN EXECUTORY INTEREST
An estate that, upon the happening of a stated event, is AUTOMATICALLY DIVESTED IN FAVOR OF A THIRD PERSON rather than the grantee.

LIMITATIONS ON POSSIBILITIES OF REVERTER AND RIGHTS OF ENTRY
In some states: 30 years limit; other states require re-recording every 20-40 years.

CONDITIONS AND LIMITATIONS VIOLATING PUBLIC POLICY
Restraints on marriage
Provisions encouraging separation or divorce

Question 519

Property: Estates in Land: Present Possessory Estates: Life Estate

Answer 519

An estate for life is an estate that is not terminable at any fixed or computable period of time, but cannot last longer than the life or lives of one or more persons. It may arise by operation of law or may be created by an act or agreement of the parties.

1. LIfe Estate by Marital Right (Legal Life Estates)
2. Conventional Life Estate
   - -For life of grantee (may be indefeasible or defeasible)
   - -Life Estate Pur Autre Vie (Life of Another) (can be created directly by the grantor or indirectly by the life estate holder conveying to another)
3. Rights and Duties of Life Tenant – Doctrine of Waste
   A tenant for life is entitled to the ordinary uses and profits of the land; but he cannot lawfully do any act that would injure the interests of the person who owns the remainder or the reversion. If he does, the future interest holder can sue for damages and/or to enjoin such acts.

Affirmative (Voluntary) Waste–Natural Resources
As a general rule, life tenant may not consume or exploit natural resources on the property. Exceptions:
–reasonable amounts for repair and maintenance
–where life tenant expressly given the right to exploit such resources in the grant
–when prior to the grant, the land was used in exploitation of such natural resources, so that in granting the estate the grantor likely intended the life tenant to have the right to exploit (but limited to open mines)
–in many states where the land is suitable only for such exploitation

Permissive Waste
Failure to make required repairs or pay required carrying charges.
Duty limited to the extent of the income or profits derived from the land or to the extent of the reasonable rental value of the land.
Future interest holder who expends fund for such repairs is entitled to reimbursement.
Obligation to repair does not include improvements, no matter how wise they may be.
Obligation to pay interest on encumbrances (to the limited extent required)
Obligation to pay taxes–all ordinary taxes
Special Assessments for Public Improvements–apportioned equitably between life tenant and future interest holders.
Obligation to insure–NONE
No liability to remainderment for third party torts.

Ameliorative Waste
Consists of acts that economically benefit the property. Occurs when the use of the property is substantially changed but the change increases the value of the property.
Modern statutes: life tenant can substantially alter or even demolish existIng buildings if the market value of the future interests is not diminished and EITHER
(i) the remaindermen do not object; or
(ii) a substantial and permanent change in the neighborhood conditions has deprived the property in its current form of reasonable productivity or usefulness.
Leasehold tenants treated differently–remain liable for ameliorative waste
Worthless Property: life tenant can ask for a judicial sale in a partition and proceeds are put in trust with income to the life tenant

RENUNCIATION OF LIFE ESTATES: if this occurs the courts generally ACCELERATE the future interest that follows the life estate, allowing it to become possessory immediately.

Question 520

Property: Estates in Land: Future Interests: Reversionary Interests–Future Interests in Transferor

Answer 520

REVERSIONS
A person owning an estate in real property can create and transfer a lesser estate (in the durational sense). The residue left in the grantor, which ARISES BY OPERATION OF LAW is a reversion.

Although a reversionary interest becomes possessory in the future, it is a vested interest, not a contingent interest, because both the owner and the event upon which it will become possessory are certain. This is true even if the reversionary interest is determinable or defeasible. Because it is vested, it is NOT SUBJECT TO THE RULE AGAINST PERPETUITIES.

Question 521

Property: Estates in Land: Future Interests: Remainders

Answer 521

A remainder is a future interest created in a transferee that is CAPABLE OF TAKING in present possession and enjoyment UPON THE NATURAL TERMINATION OF THE PRECEDING ESTATES created in the same disposition.

Unlike a reversion, which arises by operation of law from the fact that the transferor has not made a complete disposition of his interest, a remainder MUST BE EXPRESSLY CREATED IN THE INSTRUMENT CREATING THE INTERMEDIATE POSSESSORY ESTATE.

Remainders ALWAYS FOLLOW LIFE ESTATES.
Remainders NEVER FOLLOW A FEE SIMPLE (cannot cut short or divest)

INDEFEASIBLE VESTED REMAINDER
A remainder that:
1. Can be created in and held only by an ASCERTAINED PERSON OR PERSONS in being;
2. MUST BE CERTAIN TO BECOME POSSESSORY ON TERMINATION OF THE PRIOR ESTATES;
3. MUST NOT BE SUBJECT TO BEING DEFEATED OR DIVESTED (like vested remainder subject to total divestment); and
4. MUST NOT BE SUBJECT TO BEING DIMINISHED IN SIZE (like vested remainder subject to open).

VESTED REMAINDER SUBJECT TO OPEN
This is a vested remainder created in a class of persons that is certain to take on the termination of the preceding estates, but is SUBJECT TO DIMINUTION by reason of other persons becoming entitled to share in the remainder.  (also called vested remainder subject to partial divestment)

Once the remainder vests in one existing member of the class, the divesting interest in the unborn members of the class is called an executory interest.

VESTED REMAINDER SUBJECT TO TOTAL DIVESTMENT
Arises when the remainderman is in existence and ascertained and his interest is not subject to any condition precedent, but his right to possession and enjoyment is subject to being defeated by the happening of some CONDITION SUBSEQUENT.

CONTINGENT REMAINDER
Two ways to create:
1. Subject to Condition Precedent
2. Created in favor of Unborn or Unascertained Persons

At common law, a contingent remainder had to vest prior to or upon termination of the preceding freehold estate or it was destroyed, but today the rule has been abolished in most states.

Whenever the same person acquires all of the existing interests in land, present and future, a merger occurs and that person holds a fee simple absolute.

RULE IN SHELLEY’S CASE (RULE AGAINST REMAINDERS IN GRANTEE’S HEIRS)
At common law, where a freehold estate (usually a life estate) was given to A, and in the same instrument a REMAINDER WAS LIMITED TO THE “HEIRS” OR TO THE “HEIRS OF THE BODY” OF A, and the freehold estate and the remainder were both legal or both equitable, the purported remainder in the heirs was not recognized, and A took both the freehold estate and the remainder. The rule operated to convert what would otherwise have been a contingent remainder in the heirs into a remainder in the ancestor.

This rule has been abolished in most states today.

DOCTRINE OF WORTHIER TITLE (RULE AGAINST REMAINDERS IN GRANTOR’S HEIRS)
Under the doctrine of worthier title, a remainder limited to the grantor’s heirs is invalid, and the grantor retains a reversion in the property. This doctrine is still applied to inter vivos transfers in a majority of states, but most states treat it only as a RULE OF CONSTRUCTION (i.e., it does not appy if the grantor has clearly manifested as intent to create a future interest in his heirs).

Question 522

Property: Estates in Land: Future Interests: executory Interests

Answer 522

An executory interest is an interest that DIVESTS the interest of another.

SHIFTING EXECUTORY INTEREST–DIVESTS A TRANSFEREE

SPRINGING EXECUTORY INTEREST–FOLLOWS A GAP OR DIVESTS A TRANSFEROR

If the interest follows a fee simple interest of any kind, it is executory.

Question 523

Property: Estates in Land: Future Interests: Transferability of Remainders and Executory Interests

Answer 523

All vested remainders are fully transferable during life, devisable by will, and descendible by inheritance.

Contingent remainders and executory interests are transferable inter vivos.

Contingent remainders and executory interests are usually devisable and descendible (unless the holder’s survival is a condition to the interest’s taking).

Any transferable future interest is reachable by creditors.

Practically, those interests held by unborn or unascertained persons are not transferable because the courts will not appoint a guardian for purposes of conveying land.

Question 524

Property: Estates in Land: Future Interests: Class Gifts

Answer 524

A class is a group of persons having a common characteristic. Typically, they stand in the same relation to each other or to some other pereson. In a gift to a class, the share of each member of the class is determined by the number of persons in the class.

Dispositions to children: that person’s children from all marriages as well as adopted children and nonmarital children.

Dispositions to heirs: according to the laws of descent and distribution if she were to die without a will.

Dispositions to issue or descendents: lineal offspring who take per stirpes.

Persons in gestation at the time set for distribution are included in a class. The common law presumption is that a child born within 10 lunar months or 280 calendar dats after the necessary point in time was in gestation at that time.

WHEN THE CLASS CLOSES--THE RULE OF CONVENIENCE
A class closes when some member of the class can call for a distribution of her share of the class gift.  

The rule of convenience is a rule of construction only. If the transferor sets forth the time when membership of the class is to be determined, then his directions will govern.

2. when the class closes–rule of convenience

Question 525

Property: Estates in Land: Trusts: Private Trust Concepts and Parties

Answer 525

1. Settlor: person who creates the trust by manifesting an intent to do so. While a trust of personal property may be expressed orally, the Statute of Frauds requires a writing to create a trust of real property. The settlor must own the property as the time the trust is created and must intend to make the trust effective immediately.
2. Trustee: hold legal title to the property, but must act under the instructions of the settlor who created the trust. The trustee has a fiduciary duty to use the highest care and skill for the beneficiaries. If the trustee has no duties at all, the trust will fail, and legal title will vest immediately in the beneficiaries. However, if the trustee dies, resigns or refuses to serve, the trust will not fail; a court of equity will appoint a substitute trustee.
3. Beneficiaries: hold equitable title to the property. Every private trust must have at least one beneficiary and the beneficiaries must be definitely identifiable by the time their interest comes into enjoyment and, in all events, within the period of the Rule Against Perpetuities.
   Acceptance of the benefits of the trust is presumed, but a beneficiary may renounce his rights within a reasonable time of learning of its creation.
4. Res: property that is the subject of the trust. If there is no res, the trust fails. The res must be real property or personal property (tangible or intangible), and it may be either a present interest or a future interest. The trust res must be segregated from other property of the settlor, but this does not preclude a trust of a fractional share interest, such as a trust of “an undivided 1/2 interest in Blackacre” where the settlor owns all of Blackacre.
5. Application of Rule Against Perpetuities: applies to equitable future interests just as it does to legal future interest.s

Question 526

Property: Estates in Land: Trusts: Creation of Trusts

Answer 526

1. Inter Vivos Conveyance
2. Inter Vivos Declaration
3. Testamentary Conveyance
4. Pour-Over Into Existing Trust

Question 527

Property: Estates in Land: Trusts: Charitable Trusts

Answer 527

1. Must have an indefinite group of beneficiaries that must be reasonably numerous and not individually identified.
2. Application of Rule against Perpetuities: does not apply
3. Cy Pres Doctrine: if the purposes of a charitable trust are impossible to fulfill, are illegal, or have been completely fulfilled, a court may redirect the trust to a different purpose that is “as near as may be” to the settlor’s original intent.
4. Enforcement of Charitable Trusts: by the attorney general of the state.

Question 528

Property: Estates in Land: Rule against Perpetuities: Analysis of the Rule

Answer 528

No interest in property is valid unless it must vest, if at all, not later than 21 years after one or more lives in being at the time of the creation of the interest.

Rule applies to: contingent remainders; executory interests; class gifts; options and rights of first refusal; powers of appointment.

WHEN THE PERPETUITIES PERIOD BEGINS TO RUN
At the time the interests are created, taking into account the facts then existing. the lives in being plus 21 years period begins to run, and the measuring lives used to show the validity of an interest must be in existence, at that time.

will–date of testator’s death
revocable trusts–date trust become irrevocable
irrevocable trust–date created
deeds–date delivered with intent to pass title

MUST VEST
The interest must vest within lives in being plus 21 years. An interest becomes vested for purposes of the rule when:
(i) it becomes a present possessory estate, or
(ii) it becomes an indefeasibly vested remainder or a vested remainder subject to total divestment.

Remember that the rule is applicable only to future interests created in third persons; consequently the rule generally applies only to contingent remainders, executory interests, and vested remainders subject to open.

IF AT ALL
This simply means that the interest does not have to vest within the perpetuities period in order to be valid; after all, many contingent remainders never vest because the condition precedent to their taking is not satisfied.

LIVES IN BEING (human and number must be reasonable)
The law allows any lives to be used to show the validity or invalidity of an interest, but no lives are of any help unless they are somehow CONNECTED WITH THE VESTING OF AN INTEREST. The measuring lives need not be given a beneficial interest in the property and they need not even be expressly referred to in the instrument, but there must be some connection that insures vesting or failure of the interest within the perpetuities period.

INTERESTS EXEMPT FROM RULE
1. Gift Over to Second Charity
A charitable trust can last forever. However, like any other gift, a gift for charitable purposes is void for remoteness if it is contingent upon the happening of an even that may not occur within the perpetuity period. The only exception is when there is a give to Charity A, followed by a gift to Charity B upon a possibly remote event. Rule against perpetuities applies to dispositions over from a charity to an individual on a remote condition AND to dispositions over from an individual to a charity on a remote condition.

2. Vested Interests
3. Reversionary Interests

CONSEQUENCES OF VIOLATING THE RULE–INTEREST IS STRICKEN
Exception–infectious invalidity: if the invalid gift is an essential part of the transferor’s dispositive scheme, such that to strike this interest and give effect to the remaining interests would be to subvert the transferor’s intent–if it is determined that the transferor would prefer that the entire disposition would fail, then the entire disposition is void.

Question 529

Property: Estates in Land: Rule against Perpetuities: The Rule in Operation–Common Pitfall Cases

Answer 529

1. Executory Interest Following defeasible fee, with no limit on the time within which it must vest, violates the rule and is stricken.
2. A gift to an open class conditioned upon the members surviving to an age beyond 21 violates the Rule
3. The fertile octogenarian: a woman is conclusively presumed to be capable of bearing children regardless of her age or medical condition.
4. the unborn widow or widower: like the word heir, can’t tell who the person is until the spouse dies (violates the rule)
5. A gift that is conditioned on an administrative contingency violates the rule (submission of will to probate)

Question 530

Property: Estates in Land: Rule against Perpetuities: application of rule to class gifts

Answer 530

1. Bad-as-to-one, bad-as-to-all rule:
The general principle that the Rule does not invalidate interests that "vest" within the perpetuities period DOES NOT APPLY TO VESTED REMAINDERS SUBJECT TO OPEN.  The class gift rule, sometimes called the all or nothing rule, requires that 
(i) the class must close within the perpetuities period; and 
(ii) all conditions precedent for every member of the class must be satisfied, if at all, within the perpetuities period. 

If it is possible that a disposition might vest remotely with respect to any member of the class, the ENTIRE CLASS GIFT IS INVALID.

2. Class closing rules may save disposition (rule of convenience)

3. gift to subclass exception
Separate gifts vest at different times.  Each gift to a subclass may be treated as a separate gift under the Rule.

4. per capita gift exception
When there is a separate gift of a fixed sum to each class member, each gift is tested separately under the Rule.

Question 531

Property: Estates in Land: Rule against Perpetuities: Technique for Analysis of Perpetuities Problems

Answer 531

1. Determine what interests are created, applying the proper future interests labels, as though there were no RAP
2. Determine the measuring life or lives that can be used to show either that the interest must vest within lives in being plus 21 years OR that the interest might not vest within that period.
3. apply the reform statute
   - -wait and see statute: the validity of an interest followed by one or more life estates is determined on the basis of facts existing at the end of the life estate rather than at the creation of the interest
   - -cy pres: invalid interest is reformed to comply with the Rule and carry out the grantor’s intent as nearly as possible
   - -statute dealing with specific perpetuities problems (age contingencies reduced to age 21, women over age 55 presumed incapable of having children)
   - -Uniform Statutory Rule Against Perpetuities which provides an alternative 90-year vesting period and a wait and see approach.

Question 532

Property: Estates in Land: Rule against Restraints on Alienation: Types of Restraints on Alienation

Answer 532

As a general rule, any restriction on the transferability of a legal interest in property is void.

There are three types of restraints on alienation:

1. disabling restraints, under which any attempted transfer is ineffective
2. forfeiture restraints, under which an attempted transfer results in a forfeiture of the interest
3. promissory restraints, under which an attempted transfer breaches a covenant

A disabling restraint on ANY legal interest is void.

Question 533

Property: Estates in Land: Rule against Restraints on Alienation: Restraints on a Life Estate

Answer 533

1. Legal Life Estate
   FORFEITURE AND PROMISSORY restraints on life estates are VALID. A life estate is inalienable as a practicable matter because few would be willing to pay for an estate of uncertain duration; thus, little is lost by giving effect to the transferor’s intention to restrict the estate’s transferability.
2. equitable life estate
   given full effect (spendthrift clauses)

Question 534

Property: Estates in Land: Rule against Restraints on Alienation: Restraints on Future Interests

Answer 534

Restraints on VESTED future interests generally are valid only to the extent that restraints on present interests of the same type are valid. DISABLING restraints on all future interests are VOID.

1. Vested Remainders in Fee Simple
   Any TOTAL restraint on a vested remainder–either forfeiture, disabling, or promissory–is VOID.
   Partial forfeiture and promissory restraints on vested remainders in fee simple may be upheld if reasonable.
2. Vested Remainders for Life
   Forfeitures and promissory restraints on vested remainders for life are VALID.
3. Contingent Remainders
   law is unsettled

Question 535

Property: Estates in Land: Rule against Restraints on Alienation: Other valid Restraints on Alienation

Answer 535

1. Reasonable Restrictions in Commercial Transactions
   Upheld on the theory that the restriction appears in the agreement entered into by the parties, it is a product of their bargaining, and presumably serves a useful purpose in facilitating the parties objectives.
2. Right of first Refusal
   Valid if reasonable.
3. Restrictions on Transferability of leaseholds: given effect in all jurisdictions

Question 536

Property: Estates in Land: Concurrent Interests: Joint Tenancy

Answer 536

Joint tenancy can be created between two or more people. Distinguishing feature is the right of survivorship (automatic; do not succeed to the decedent’s interest, but hold free of it)

CREATION
FOUR UNITIES REQUIRED
Unity of TIME (interests vest at the same time);
Unity of TITLE (interests acquired by the same instrument);
Unity of INTEREST (interests of the same type and duration);
Unity of Possession (interests given identical rights to enjoyment).

MODERN LAW: above requirments eroded so that may not need a strawman (owner can create interest in self and another by a single deed even time and title are not satisfied) A joint tenancy results only when an intention to create a right of survivorship is clearly expressed.

SEVERANCE
A joint tenancy may be terminated by a suit for partition, which can be brought by any joint tenant. It may also be terminated by various acts by any joint tenant.

1. Inter Vivos Conveyance by One Joint Tenant (both voluntary and involuntary)
   - -other joint tenants continue to hold in joint tenancy between themselves
   - -judgment liens–majority view is that it does not sever the joint tenancy, unless there is a foreclosure and forced sheriff sale
   - -mortgages–majority view is that ti does not sever the joint tenancy (minority states regard mortgage as a transfer of title)
   - -leases: theoretically destroys the unity of interest and thereby should effect a severance .
2. Contract to Convey by One Joint Tenant
   In most states, a severance results where one joint tenant executes a valid contract to convey her interest to another, even though no actual transfer of title has yet been made. The contract to convey is enforceable in equity and hence treated as an effective transfer of an equitable interest.
3. Testamentary Disposition by One Joint Tenant Has No Effect
   Because at the instant of death, the decedent’s rights in the property evaporate.
4. Effect of One Joint Tenant’s Murdering Another
   Some states: operates as a severance
   Other states: joint tenant hold’s in constructive trust for the decedent’s estate

Question 537

Property: Estates in Land: Concurrent Interests: Tenancy by the Entirety

Answer 537

A tenancy by the entirety is a marital estate akin to a joint tenancy between husband and wife. It is not recognized in community property states, but in some common law jurisdictions, it arises presumptively in any conveyance made to a husband and wife.

1. Right of Survivorship
2. Severance Limited
3. Individual Spouse Cannot Convey or Encumber

Question 538

Property: Estates in Land: Concurrent Interests: Incidents of Co-Ownership

Answer 538

1. Possession: right to possession of all portions of property
2. Rents and Profits; right to retain profits gained by her use of the property; must share rents from third persons; co-owner does not have to pay rent.
3. Effect of One Concurrent Owner’s Encumbering the Property: foreclosure only on the co-tenant’s portion; but in joint tenancy, if the co-tenant dies before the mortgage is paid, the ownership interest extinguishes and so does the mortgagee’s interest.
4. Ouster: not allowed; ousted co-tenant entitled to receive her fair rental value of the property during ouster period
5. Remedy of the Partition: either in kind (preferred method) or by sale and division of the proceeds
6. Expenses for Preservation of Property–Contribution
   - -repairs: contribution may be compelled for necessary repairs
   - -improvements: no contribution or setoff; action for partition amount can be recouped
   - -taxes and mortgages–contribution can be compelled
7. Duty of Fair Dealing Among Co-Tenants: confidential relationship

Question 539

Property: Landlord and Tenant: Nature of Leasehold: Tenancies for Years

Answer 539

1. Fixed Period of Time: 10 days or 10 years
2. Creation:
   Statute of Frauds requires writing for a lease of more than one year.
   Most states restrict how long a leasehold estate may be created.
   When the lease term exceeds the statutory maximum or contains an option to renew for a period beyond the statutory maximum, most courts hold the lease ENTIRELY VOID.
3. Termination: automatic on its termination date.
   - -In most tenancy for years, the landlord reserves the RIGHT OF ENTRY if the tenant breaches any of the leasehold covenants.
   - -Even in the absence of a reserved right of entry, landlord has right to terminate the lease in the failure to pay rent.
   - -Surrender consists of the tenant giving up his leasehold interest to the landlord and the landlord accepting. Usually a writing is necessary.

Question 540

Property: Landlord and Tenant: Nature of Leasehold:Periodic Tenancies

Answer 540

Continues from year to year or for successive fractions of a year until terminated by proper notice by either party. The beginning must be certain but the TERMINATION DATE IS ALWAYS UNCERTAIN until notice is given.

All conditions and terms of the tenancy are carried over from one period to the next unless there is a lease provision to the contrary. Periodic tenancies do not violate the rules limiting the length of leaseholds because each party retains the power to terminate upon giving notice.

1. Creation: 3 ways

By Express Agreement

By Implication: where lease has no set termination but does provide for the payment of rent at specific periods.

By Operation of Law

• -Tenant Holds Over: converts to periodic
• -Lease Invalid: converts to periodic that coincides with rent payment

2. Termination–Notice Required

Periodic tenancy is AUTOMATICALLY RENEWED from period to period, until proper notice of termination is given by either party.

–Tenancy must end at the END OF A NATURAL LEASE PERIOD.

–For a tenancy from year to year, SIX MONTHS’ NOTICE is required.

–For tenancies less than one year in duration, a FULL PERIOD IN ADVANCE of the period in question is required by way of notice.

In general, notice must be in WRITING and DELIVERED (or deposited in a manner similar to that required for service of process)

Question 541

Property: Landlord and Tenant: Nature of Leasehold: Tenancies at Will

Answer 541

A tenancy at will is an estate that is terminable at the will of either the landlord or the tenant. To be a tenancy at will, both the landlord and tenant must have the right to terminate the lease at will.

If the lease only gives the right to terminate at will to the landlord, a similar right will generally be implied in favor of the tenant so that the lease creates a tenancy at will.

If the lease is only at the will of the tenant, the courts generally do not imply a aright to terminate in favor of the landlord. Rather, most courts interpret the conveyance as creating a life estate. If statute of frauds is not satisfied, then it is a tenancy at will.

1. Creation
   Unless specifically says tenancy at will, then will be construed as a periodic tenancy where rent is paid at regular intervals.

2. Termination
By notice of either party. 
By law:
--either party dies
--tenant commits waste
--tenant attempts to assign his tenancy
--landlord transfers his interest in the property
--landlord executes a term lease to a third person

Question 542

Property: Landlord and Tenant: Nature of Leasehold: Hold-over Doctrine

Answer 542

Tenancy at Sufferance: tenant wrongfully remains in possession after the expiration of a lawful tenancy. Such a tenant is a wrongdoer and liable for rent. Tenancy at Sufferance lasts only until the landlord takes steps to evict the tenant. No notice is required to end the tenancy and authorities are split as to whether this is even an estate in land.

When a tenant remains in possession after the termination of his right of possession, the landlord can

evict under an unlawful detainer statute
Or
Creation of Periodic Tenancy
–terms are same (unless landlord notified of new terms before termination of lease, then new terms will prevail)
–month to month (unless commercial, then year to year)

3. What Does Not Constitute Holding Over
   - -tenant remains in possession for only a few hours or leaves a few articles of personal property on premises
   - -delay is not the tenant’s fault (severe illness)
   - -it is a seasonal lease
4. Double Rent Jeopardy
   If tenant WILLFULLY remains in possession and landlord makes a WRITTEN DEMAND FOR POSSESSION
5. Forcible Entry Standards
   most state prohibit; some also prohibit changing the locks and locking tenant out

Question 543

Property: Landlord and Tenant: Tenant’s Duties and Landlord Remedies: Tenant’s duty to Repair (Doctrine of Waste)

Answer 543

A tenant cannot damage–commit waste on–the leased premises. The rules governing wast in the leasehold are very similar to those governing waste in the life estate.

TYPES OF WASTE

Voluntary (Affirmative) Waste
Intentionally or negligently damages the property.

Permissive Waste
Unless the lease provides otherwise, the tenant has no duty to the landlord to make any SUBSTANTIAL repairs. However, the tenant has a duty to make ordinary repairs to keep the property in the same condition as at the commencement of the lease term, excluding ordinary wear and tear.

By statute in a growing number of states: don’t cause housing code violations; keep clean and free from vermin; use plumbing and appliances in reasonable manner.

Ameliorative Waste
A duty to return premises in the same nature and character as received. Not permitted to make substantial alterations even if the alteration increases value.
Liable for cost of restoration unless through long period of time, 25 year tenant changes the premises in a way that increases the value and reflects the changes in the neighborhood.

DESTRUCTION OF PREMISES WITHOUT FAULT–not waste and tenant can terminate lease.

TENANT’S LIABILITY FOR COVENANTS TO REPAIR
In RESIDENTIAL leases, even if the tenant covenants to repair, the landlord will usually be obligated to repair (except for damages caused by the tenant) because the landlord’s obligations under the warranty are usually held not to be waivable.

In NONRESIDENTIAL leases, tenant’s covenant to repair is enforceable, and a landlord’s claim that the tenant breached the covenant will be assessed by comparing the property’s condition when the lease terminates with its condition when the lease commenced. (does not require rebuilding or repairing structural repair–unless contract specifically says so)

Question 544

Property: Landlord and Tenant: Tenant’s Duties and Landlord Remedies: Duty to Not Use Premises for Illegal Purposes (2)

Answer 544

1. Occasional Unlawful Conduct does not breach duty

2. Landlord remedies–terminate lease, recover damages

Question 545

Property: Landlord and Tenant: Tenant’s Duties and Landlord Remedies: Duty to Pay Rent (3)

Answer 545

1. When Rent Accrues
2. Rent Deposits
3. Termination of Rent Liability–Surrender

Question 546

Property: Landlord and Tenant: Tenant’s Duties and Landlord Remedies: Landlord remedies (2)

Answer 546

1. Tenant on Premises but Fails to pay rent–evict or sue for rent
2. tenant abandons–do nothing or repossess

Question 547

Property: Landlord and Tenant: Landlord duties and tenant remedies: Duty to deliver possession of premises (2)

Answer 547

1. Landlord duty–must deliver actual possession

2. tenant remedy–damages

Question 548

Property: Landlord and Tenant: Landlord duties and tenant remedies: quiet enjoyment (3)

Answer 548

1. Actual eviction
2. partial actual eviction
3. constructive eviction

Question 549

Property: Landlord and Tenant: Landlord duties and tenant remedies: Implied warranty of habitability (2)

Answer 549

1. Standard–Reasonably suitable for human Residence

2. Remedies

Question 550

Property: Landlord and Tenant: Assignments and Subleases: Consequences of Assignment

Answer 550

The label given to a transfer–an assignment or sublease–determines whether the landlord can proceed directly against the transferor. To be an assignment, the transfer must be on the same terms as the original lease EXCEPT THAT THE TENANT MAY RESERVE A RIGHT OF TERMINATION (REENTRY) FOR BREACH OF THE ORIGINAL LEASE that may have been assigned. If the transfer is an assignment, the assignee stands in the shoes of the original tenant in a direct relationship with the landlord. The assignee and the landlord are in PRIVITY OF ESTATE and each is liable to the other on all covenants in the lease that “run with the land.”

COVENANTS THAT RUN WITH THE LAND
A covenant “runs” if the original parties to the lease so intend, and if the covenant “touches and concerns” the leased land; i.e., it benefits the landlord and burdens the tenant (or vice versa) with respect to their interests in the property. Covenants held to run with the land (unless the parties specify otherwise) include: covenants to DO OR NOT DO A PHYSICAL ACT (e.g., to repair, to conduct a business on the land in a specified manner, to supply heat); covenants to PAY MONEY (e.g., rent, taxes etc.); and covenants regarding the DURATION of the lease (e.g., termination clauses).

RENT COVENANT RUNS WITH THE LAND
Because the covenant to pay rent runs with the land, an assignee owes the rent directly to the landlord. He does not owe rent for the period before the assignment, but only for the time that he is in “privity of estate,” i.e., from the time of assignment until the end of the lease or until the assignee himself reassigns.

1. Reassignment by Assignee–Privity of Estate with Landlord Ends
   If the assignee reassigns the leasehold interest, his privity of estate with the landlord ends, and he is not liable for the subsequent assignee’s failure to pay rent. However, if the first assignee specifically promised the landlord that he would be liable for the rent for the remainder of the lease term, he may be obligated to pay based on PRIVITY OF CONTRACT, even though his reassignment ended the privity of estate.

If the assignee made no promise to the landlord but did promise the original tenant that he would pay all future rent, the landlord may be able to sue the assignee as a THIRD PARTY BENEFICIARY of the contract between the original tenant and the assignee.

2. Original Tenant Remains Liable
   After assignment, the original tenant is no longer in privity of estate with the landlord. However, if (as is likely) the tenant promised to pay rent in his lease with the landlord, he can still be held liable on his original contractual obligations to pay, i.e., on privity of contract. This allows the landlord to sue the original tenant where the assignee has disappeared, is judgment proof, etc.

Question 551

Property: Landlord and Tenant: Assignments and Subleases: Consequences of Subleases (3)

Answer 551

1. Liability of Sublessee for Rent and other covenants
2. Assumption by Sublessee
3. Rights of Sublessee

Question 552

Property: Landlord and Tenant: Assignments and Subleases: Covenants against Assignment or Sublease (5)

Answer 552

1. Strictly Construed Against Landlord
2. Waiver of Covenant
3. Continuing Waiver
4. Transfer in Violation of Lease not Void
5. Reasonableness

Question 553

Property: Landlord and Tenant: Assignments and Subleases: Assignment by landlord (3)

Answer 553

1. Right to Assign
2. Right of Assignee Against Tenants
3. Liabilities of Assignee to Tenants

Question 554

Property: Landlord and Tenant: Tort liability of Landlord and Tenant: Landlord’s Liability (6)

Answer 554

At common law, subject to a few exceptions, a landlord had NO DUTY to make the premises safe. Today there are six exceptions to this rule:
1. Concealed Dangerous Condition (Latent Defect): if at the time the lease is entered into, the landlord knows or should know of a dangerous condition that the tenant could not discover upon reasonable inspection, the landlord has a DUTY TO DISCLOSE the dangerous condition. Failure to disclose results in liability for any injury resulting from the condition.

2. Common Areas: duty to exercise REASONABLE CARE over common areas that remain under his control.
3. Public Use: liable for injuries to members of the public if, at the time of the lease, he:
   (i) knows or should know of a dangerous condition,
   (ii) has reason to believe that the tenant may admit the public before repairing the condition (because of short lease condition), and
   (iii) fails to repair the condition.
4. Furnished Short term Residence: many jurisdictions hold that landlord is liable if the premises are defective and cause injury to a tenant.
5. Negligent Repairs by landlord: even if a landlord has no duty to repair, a landlord who actually attempts to repair is liable if an injury results because the repairs are done NEGLIGENTLY, or because they give a DECEPTIVE APPEARANCE OF SAFETY.
6. Landlord Contracts to Repair: if landlord covenants to repair, then liable to tenant or tenant’s guests for failure to repair or negligent repair.

Question 555

Property: Landlord and Tenant: Tort liability of Landlord and Tenant: Modern Trend–General Duty of Reasonable Care (3)

Answer 555

1. Defects arising after tenant takes possession
2. Legal duty to repair
3. Security

Question 556

Property: Fixtures: Common Ownership cases: Annexor’s Intent Controls in Common Ownership Cases (3)

Answer 556

1. Constructive Annexation
2. Vender Purchaser Cases
3. Mortgagor-Mortgagee Cases

Question 557

Property: Fixtures: Common Ownership cases: Effect of Fixture Classification (3)

Answer 557

1. Conveyance
2. Mortgage
3. Agreement to contrary

Question 558

Property: Fixtures: Divided Ownership Cases: Landlord-Tenant (4)

Answer 558

1. Agreement
2. No Intent if Removal Does not cause damage
3. Removal may occur before end of lease term
4. Tenant has duty to repair damages resulting from removal

Question 559

Property: Fixtures: Third-Party Cases: Third Person Lien on Chattel Affixed to Land (2)

Answer 559

1. UCC Rules

2. Liability for Damages Caused by Removal

Question 560

Property: Rights in the Land of Another--Easements, Profits, Covenants, and Servitudes: Easements: 
Introduction 
Types of easements
Easement appurtenant
easement in gross

Answer 560

Holder of an easement has a right to use a tract of land (called the servient tenement) for a special purpose, but has no right to possess and enjoy the tract of land. Owner has full possession and ejoyment subject only to the limitation that he cannot interfere with the right of special use crated in the easement holder. Typically easements are created to give their holder the right of access across the tract of land.

1. Types of easements:

Affirmative easements entitle the holder to enter upon the servient tenement and make an affirmative use of it for some purpose.

Negative easement entitles the privilege holder to compel the possessor of the servient tenement to refrain from engaging in activity upon the servient tenement that, were it not for the existence of the easement, he would be privileged to do. Simply a restrictive covenant.

2. Easement Appurtenant: the right of special use benefits the holder of the easement in his physical use or enjoyment of another tract of land. For an easement appurtenant to exist, there must be two tracts of land–dominant tenement and servient tenement.
3. Easement in Gross:
4. Judicial Preference for Easements Appurtenant

Question 561

Property: Rights in the Land of Another–Easements, Profits, Covenants, and Servitudes: Easements: Creation of Easements (4)

Answer 561

1. Express Grant
2. Express Reservation
3. Implication
4. Prescription

Question 562

Property: Rights in the Land of Another–Easements, Profits, Covenants, and Servitudes: Easements: Scope (7)

Answer 562

1. General Rules of Construction
2. Absence of Location
3. Changes in Use
4. Easements by Necessity or by Implication
5. Use of Servient Estate
6. Intended Beneficiaries–Subdivision of Dominant parcel
7. Effect of Use Outside Scope of Easement

Question 563

Property: Rights in the Land of Another–Easements, Profits, Covenants, and Servitudes: Easements: Termination of Easements (9)

Answer 563

1. Stated Conditions
2. Unity of Ownership
3. Release
4. Abandonment
5. Estoppel
6. Prescription
7. Necessity
8. Condemnation
9. Destruction of Servient estate

Question 564

Property: Rights in the Land of Another–Easements, Profits, Covenants, and Servitudes: Easements: Compare Licenses (4)

Answer 564

1. Assignability
2. Revocation and Termination
3. Failure to Create an Easement
4. Irrevocable Licenses

Question 565

Property: Rights in the Land of Another–Easements, Profits, Covenants, and Servitudes: Profits: Scope (2)

Answer 565

1. Apportionment of Profits Appurtenant

2. Apportionment of Profits in Gross

Question 566

Property: Rights in the Land of Another–Easements, Profits, Covenants, and Servitudes: Covenant Running with the Land at law (Real Covenants): Requirements for burden to Run (5)

Answer 566

1. Intent
2. Notice
3. Horizontal Privity
4. Vertical Privity
5. Touch and Concern

Question 567

Property: Rights in the Land of Another–Easements, Profits, Covenants, and Servitudes: Covenant Running with the Land at law (Real Covenants): Requirements for Benefit to Run (3)

Answer 567

1. Intent
2. Vertical Privity
3. Touch and Concern

Question 568

Property: Rights in the Land of Another–Easements, Profits, Covenants, and Servitudes: Covenant Running with the Land at law (Real Covenants): Modern Status of Running of Burden and Benefit (2)

Answer 568

1. Horizontal and Vertical Privity

2. Touch and Concern

Question 569

Property: Rights in the Land of Another–Easements, Profits, Covenants, and Servitudes: Covenant Running with the Land at law (Real Covenants): Specific Situations Involving Real Covenants (3)

Answer 569

1. Promises to pay Money
2. Covenants not to Compete
3. Racially Restrictive Covenants

Question 570

Property: Rights in the Land of Another–Easements, Profits, Covenants, and Servitudes: Equitable Servitudes: Creation (1)

Answer 570

1. Servitudes Implied from Common Scheme

Question 571

Property: Rights in the Land of Another–Easements, Profits, Covenants, and Servitudes: Equitable Servitudes: Enforcement (4)

Answer 571

1. Requirements for Burden to Run
2. Requirement for Benefit to Run
3. Privity not Required
4. Implied Beneficiaries of Covenants–General scheme

Question 572

Property: Rights in the Land of Another–Easements, Profits, Covenants, and Servitudes: Equitable Servitudes: Equitable Defenses to enforcement (4)

Answer 572

1. Unclean Hands
2. Acquiescence
3. Estoppel
4. Changed Neighborhood Conditions

Question 573

Property: Rights in the Land of Another–Easements, Profits, Covenants, and Servitudes: Party Walls and Common Driveways (2)

Answer 573

1. Creation

2. Running of Covenants

Question 574

Property: Adverse Possession: Requirements: Actual and Exclusive Possession (2)

Answer 574

1. Actual Possession gives notice

2. Exclusive Possession–no sharing with owner

Question 575

Property: Adverse Possession: Requirements: Hostile (4)

Answer 575

1. If Possession Starts Permissively–Must Communicate Hostility
2. Co-Tenants–Ouster Required
3. If Grantor Stays in Possession–Permission Presumed
4. Compare–Boundary Line Agreements

Question 576

Property: Adverse Possession: Requirements: continuous possession (2)

Answer 576

1. Intermittent Periods of occupancy not sufficient

2. Tacking permitted

Question 577

Property: Adverse Possession: Adverse Possesion and Future Interests: Right of Entry–Happening of event Does Not Trigger Statute of Limitation (1)

Answer 577

1. Grantor must act within reasonable time to avoid laches

Question 578

Property: Conveyancing: Land Sale Contracts: Statute of Frauds Applicable (1)

Answer 578

1. Doctrine of Part Performance

Question 579

Property: Conveyancing: Land Sale Contracts: Doctrine of Equitable conversion (2)

Answer 579

1. Risk of Loss

2. Passage of Title on Death

Question 580

Property: Conveyancing: Land Sale Contracts: Marketable Title (4)

Answer 580

1. marketability defined–Title reasonably free from doubt
2. Quitclaim Deed–no effect
3. time of marketability
4. remedy if title not marketable

Question 581

Property: Conveyancing: Land Sale Contracts: Time of Performance (4)

Answer 581

1. Presumption–Time is not of the essence
2. When Presumption overcome
3. effect of time of the essence construction
4. liability when time not of the essence

Question 582

Property: Conveyancing: Land Sale Contracts: Tender of Performance (3)

Answer 582

1. When Party’s Tender Excused
2. Neither party Tenders Performance
3. Buyer finds Seller’s Title Unmarketable

Question 583

Property: Conveyancing: Land Sale Contracts: Remedies for Breach of Land Sale Contract (3)

Answer 583

1. Damages
2. Specific Performance
3. Special Rules for Unmarketability of Title

Question 584

Property: Conveyancing: Land Sale Contracts: Seller’s Liability for Defects on Property (4)

Answer 584

1. Warranty of Fitness or Quality–New Construction Only
2. Negligence of Builder
3. Liability for Sale of Existing Land and Buildings
4. Disclaimers of Liability

Question 585

Property: Conveyancing: Deeds–Form and Content: Formalities (7)

Answer 585

1. Statute of Fraud
2. Description of Land and Parties
3. Words of Intent
4. Consideration Not Required
5. Seal in Unnecessary
6. Attestation and Acknowledgement Generally Unnecessary
7. Signature

Question 586

Property: Conveyancing: Deeds–Form and Content: Defective Deed and Fraudulent Conveyances (2)

Answer 586

1. void and voidable Deeds

2. Fraudulent Conveyancing

Question 587

Property: Conveyancing: Deeds–Form and Content: Description of Land conveyed (6)

Answer 587

1. Sufficient Description Provides good lead
2. Insufficient Description–title remains in grantor
3. Parol Evidence Admissible to Clear up Ambiguity
4. Rules of Construction
5. Land Bounded by Right of Way
6. Reformation of Deeds

Question 588

Property: Conveyancing: Delivery and Acceptance: delivery–in general (4)

Answer 588

1. manual delivery
2. presumptions relating to delivery
3. delivery cannot be cancelled
4. parol evidence

Question 589

Property: Conveyancing: Delivery and Acceptance: retention of interest by grantor or conditional delivery (5)

Answer 589

1. No delivery–title does not pass
2. no recording–title passes
3. express condition of death of grantor creates future interest
4. conditions not contained in deed
5. test–relinquishment of control

Question 590

Property: Conveyancing: Delivery and Acceptance: Acceptance (2)

Answer 590

1. Usually presumed

2. Usually relates back

Question 591

Property: Conveyancing: Covenants for Title and Estopple by Deed: Covenants in a General Warranty Deed (3)

Answer 591

1. Usual Covenants
2. Breach of Covenants
3. Damages and Remote Grantees

Question 592

Property: Conveyancing: Covenants for Title and Estoppel by Deed: Estoppel by Deed (3)

Answer 592

1. Applies to Warranty Deeds
2. Rights of Subsequent Purchasers
3. Remedies of Grantee

Question 593

Property: Conveyancing: Recording: Recording Acts–In General (3)

Answer 593

1. Purpose of Recordation–Notice
2. Requirements for Recordation
3. Mechanics of Recording

Question 594

Property: Conveyancing: Recording: Types of Recording Acts (3)

Answer 594

1. Notice Statutes
2. Race-Notice Statutes
3. Race Statutes

Question 595

Property: Conveyancing: Recording: Who is Protected by Recording Acts (3)

Answer 595

1. Purchasers
2. Without notice
3. Valuable Consideration

Question 596

Property: Conveyancing: Recording: Title Search (3)

Answer 596

1. Tract Index Search
2. Grantor and Grantee Index Search
3. Other Instruments and Events Affecting Title

Question 597

Property: Conveyancing: Recording: Effect of Recordation (4)

Answer 597

1. Does not Validate an Invalid deed
2. Does not protect against interests arising by operation of law
3. recorder’s mistake
4. effect of recording unacknowledged instrument

Question 598

Property: Conveyancing:Conveyancing by Will: Ademption (4)

Answer 598

1. Not applicable to general devises
2. not applicable to land under executory contract
3. other proceeds not subject to ademption
4. lapse and anti-lapse statutes

Question 599

Property: Conveyancing:Conveyancing by Will: Lapse and Anti-Lapse Statutes (4)

Answer 599

1. Degree of relationship to testator
2. Inapplicable if beneficiary dead when will executed
3. application to class gifts
4. anti-lapse statute does not apply if contrary will provision

Question 600

Property: Security Interests in Real Estate: Transfer by Mortgagee and Mortgagor: Transfer by Mortgagee (2)

Answer 600

1. Transfer of Mortgage without note

2. transfer of note without mortgage

Question 601

Property: Security Interests in Real Estate: Transfer by Mortgagee and Mortgagor: Transfer by Mortgagor (3)

Answer 601

1. Assumption
2. Nonassuming grantee
3. due-on-sale clauses

Question 602

Property: Security Interests in Real Estate: Defenses and Discharge of the Mortgage: Discharge of the Mortgage (3)

Answer 602

1. Payment
2. Merger
3. Deed in lieu of Foreclosure

Question 603

Property: Security Interests in Real Estate: Possession before Foreclosure: Theories of Title (3)

Answer 603

1. Lien Theory
2. Title Theory
3. Intermediate theory

Question 604

Property: Security Interests in Real Estate: Foreclosure: Redemption (2)

Answer 604

1. Redemption in equity

2. Statutory redemption

Question 605

Property: Security Interests in Real Estate: Foreclosure: Priorities (2)

Answer 605

1. Effect of foreclosure on various interests

2. modification of priority

Question 606

Property: Rights Incidental to Ownership of Land (Natural Rights): Right to Lateral or Subjacent Support of Land: Right to lateral support (2)

Answer 606

1. Support of land in natural state

2. Support of buildings on land

Question 607

Property: Rights Incidental to Ownership of Land (Natural Rights): Right to Lateral or Subjacent Support of Land: Right to Subjacent support (2)

Answer 607

1. Support of Land and Buildings

2. Interference with Underground Waters

Question 608

Property: Rights Incidental to Ownership of Land (Natural Rights): Water Rights: Watercourses (2)

Answer 608

1. Riparian Doctrine
2. Prior Appropriation Doctrine
3. Accretion and Avulsion

Question 609

Property: Rights Incidental to Ownership of Land (Natural Rights): Water Rights: Groundwater (5)

Answer 609

1. Absolute Ownership Doctrine
2. Reasonable Use Doctrine
3. Correlative Rights Doctrine
4. Appropriative Rights Doctrine
5. Restatement Approach

Question 610

Property: Rights Incidental to Ownership of Land (Natural Rights): Water Rights: Surface Waters (4)

Answer 610

1. Natural Flow Theory
2. Common Enemy Theory
3. Reasonable Use Theory
4. Compare – capture of Surface water

Question 611

Property: Rights Incidental to Ownership of Land (Natural Rights): Right to Exclude–Remedies of Possessor: Private Nuisance (1)

Answer 611

1. Compare public nuisance

Question 612

Property: Rights Incidental to Ownership of Land (Natural Rights): Right to Exclude–Remedies of Possessor: Law or Equity (2)

Answer 612

1. Ejectment

2. Unlawful detainer

Question 613

Property: Cooperatives, Condominiums, and Zoning: Zoning: Unconstitutional Takings and Exactions (4)

Answer 613

1. Denial of ALL Economic Value of Land–Taking
2. Denial of NEARLY ALL Economic Value–Balancing Test
3. Unconstitutional Exactions
4. Remedy

Question 614

Crimlaw: Essential Elements of a Crime: Mental State: Purpose of Mens Rea Requirement

Answer 614

To distinguish between inadvertant or accidental acts and acts performed by one with a “guilty mind.” The latter type of act is more blameworthy and can be deterred. However, in some cases, (strict liability crimes), mens reas is not required.

Question 615

Crimlaw: Essential Elements of a Crime: Mental State: Malice–common law murder and arson

Answer 615

Although there is a specific intent in murder and arson, the common creates this category of mental state to deny murder and arson the specific intent defenses. To establish malice in these cases, the prosecutor need only show that the defendant recklessly disregarded an obvious or high risk that the particular harmful result would occur.

Question 616

Conlaw: First Amendment Freedoms: Freedom of Association and Belief: Bar Membership and Public Employment: Restraints on Conduct

Answer 616

If a government employer seeks to fire an employee (or terminate a relationship with an independent contractor) for speech-related conduct:

Speech involved a Matter of Public Concern: balance the right of the citizen with the government employer’s need for efficiency.

Speech NOT a Matter of Public Concern: defer to government employer.

PETITION CLAUSE CLAIMS: treated similarly–must be a matter of public concern

OFFICIAL DUTY EXCEPTION: a government employer may punish a public employee’s speech whenever the speech is made pursuant to the employee’s official duties. This is true even when the speech touches on a matter of public concern.

PARTICIPANTS IN POLITICAL CAMPAIGNS: federal government MAY prohibit federal executive branch employees from taking an active part in political campaigns (to further nonpartisanship in administration and to protect employees from being coerced to work for the election of their employers).

BANS ON RECEIVING HONORARIA: unconstitutional when applied to “rank and file” employees.

PATRONAGE: First Amendment prohibits hiring, firing, promotion, or transfer of employees based on their party affiliation unless it can be shown that party affiliation is an appropriate requirement for the effective performance of the public office involved (policymaking or confidential)

Question 617

Conlaw: First Amendment Freedoms: Freedom of Association and Belief: Bar Membership and Public Employment: Loyalty Oaths

Answer 617

It is permissible for the federal government to require employees and other public officials to take loyalty oaths. But will not be upheld if overbroad (i.e., prohibits constitutionally protected activities) or vague (so that has a chilling effect on First Amendment activities).

OVERBREADTH:
Knowledge of Organization’s Aim Required
Advocacy of doctrine protected

VAGUENESS
Oaths upheld:
To support the constitution
To oppose the overthrow of the government

Oaths not upheld:
promote respect for the flag and reverence for law and order

Question 618

Conlaw: First Amendment Freedoms: Freedom of Association and Belief: Bar Membership and Public Employment: Disclosure of Associations

Answer 618

Forcing disclosure of First Amendment activities as a condition of public employment, bar membership, or other public benefits may have a chilling effect. The state may inquire only into those activities that are relevant to the position. If candidate refuses to answer, then employment may be denied. (Fifth Amendment limitation–employer may need to narrowly tailor the questions to avoid violation)

Question 619

Conlaw: First Amendment Freedoms: Freedom of Association and Belief: Bar Membership and Public Employment: Practice of Law

Answer 619

Regulation of legal profession may conflict with the freedom of association rights of certain groups because it may impair their ability to band together to advise each other and utilize counsel in their common interest.

State must show a substantial interest–such as evidence of objectionable practices occurring.

Example: NAACP was not in violation of bar solicitation rules when offered to represent black children to litigate against school segregation.

Question 620

Torts: Negligence: Duty of Care: What is Applicable Standard of Care: Particular Standards of Care (5)

Answer 620

Some persons are held to a different standard of care from the ordinary person:

1. Professionals: required to POSSESS and EXERCISE the knowledge and skill of a member of the profession or occupation in good standing in similar communities (baseline–if has superior knowledge, such as a specialist, then must use it, and is judged on a national standard of care)
2. Children: a child of LIKE AGE, EDUCATION, INTELLIGENCE, AND EXPERIENCE. (4 and older) (child engaged in adult activity held to adult standard)
3. Common Carriers and Innkeepers: held liable for SLIGHT NEGLIGENCE
4. Automobile Driver to Guest: ordinary care (a few states have GUEST STATUTES where driver’s only duty of care to a nonpaying rider [as opposed to paying passenger who is owed ordinary care] is to REFRAIN FROM GROSS OR WANTON AND WILLFUL MISCONDUCT)
5. Bailment Duties
   Duty owed by Bailee:
   (i) sole benefit of bailor–gross negligence
   (ii) sole benefit of bailee–slight negligence
   (iii) mutual benefit–ordinary due care
   (iv) modern trend–ordinary care under all circumstances

Duty owed by Bailor:

(i) sole benefit of bailee–duty to inform of known dangerous defects
(ii) bailments for hire–duty to inform of defect known to him, which he would have known by the exercise of reasonable diligence

Question 621

Torts: Negligence: Duty of Care: What is Applicable Standard of Care: Standard of Care in Emergency Situation

Answer 621

Must act as a reasonable person would under the same emergency. The emergency may not be considered if it was of the defendant’s own making.

Question 622

Torts: Negligence: Duty of Care: What is Applicable Standard of Care: Standard of Care Owed by Owners and/or Occupiers of Land: Duty of Possessor to Those Off the Premises (3)

Answer 622

1. Natural Conditions: no duty
2. Artificial Conditions: no duty unless
   (i) Unreasonably Dangerous Conditions
   (ii) Duty to Protect Passersby–erect barrier, etc.
3. Conduct of Persons on Property–duty to control self and others so to avoid unreasonable risk of harm to others outside the property.

Question 623

Torts: Negligence: Duty of Care: What is Applicable Standard of Care: Standard of Care Owed by Owners and/or Occupiers of Land: Duties of Possessor to Those on the Premises: Trespasser (5)

Answer 623

1. Undiscovered trespasser–no duty (no duty to inspect to ascertain whether persons are coming onto land)
2. Discovered Trespassers–duty to WARN trespasser of, or to MAKE SAFE, ARTIFICIAL CONDITIONS known to the landowner that involve a RISK OF DEATH OR SERIOUS BODILY HARM and that the trespasser is unlikely to discover. (also duty to exercise reasonable care in the exercise of ACTIVE OPERATIONS on the property) (trespasser discovered when noticed or when owner notified)
3. Anticipated–same as discovered (owner knows or should reasonably know of the presence of trespassers who constantly cross over a section of his land) (if owner posted no trespassing sign, might convert an anticipated trespasser into an undiscovered trespasser).
4. Attractive Nuisance Doctrine: Foreseeability of harm to a child is the true basis of liability. Plaintiff must show the following:
   (i) There is a dangerous condition (usually artificial but may be natural) present on the land of which the owner is or should be aware;
   (ii) The owner knows or should know that young persons frequent the vicinity of this dangerous condition;
   (iii) The condition is likely to cause injury because of the child’s inability to appreciate the risk;
   (iv) The expense of remedying the situation is slight compared with the magnitude of the risk.
5. Duty of Easement and License Holders to Trespassers–reasonable care

Question 624

Torts: Negligence: Duty of Care: What is Applicable Standard of Care: Standard of Care Owed by Owners and/or Occupiers of Land: Duties of Possessor to Those on the Premises: Licensee

Answer 624

A licensee is one who enters on the land with the landowner’s permission, express or implied, for her OWN PURPOSE OR BUSINESS rather than for the landowner’s benefit.

Owner of occupier of the land has a DUTY TO WARN the licensee of a dangerous condition KNOWN to the owner or occupier that creates an unreasonable risk of harm to the licensee and that the licensee is unable to discover.

NO DUTY TO INSPECT NOR TO REPAIR KNOWN DEFECTS

ACTIVE OPERATIONS: reasonable care in the operation

SOCIAL GUESTS ARE LICENSEES–performance of minor services for the host does not make the guest an invitee

Question 625

Torts: Negligence: Duty of Care: What is Applicable Standard of Care: Standard of Care Owed by Owners and/or Occupiers of Land: Duties of Possessor to Those on the Premises: Invitees

Answer 625

An invitee is a person who enters onto the premises in response to an express or implied invitation of the landowner.

2 CLASSES OF INVITEES

1. Those who enter as members of the public for a purpose for which the land is HELD OPEN TO THE PUBLIC (museums, churches, airports)
2. Those who enter for a purpose CONNECTED WITH THE BUSINESS or other interests of the landowner or occupier (customers, delivery persons)

PROBLEM CLASS
Police, firefighters, census takers. In some situations they are invitees and in some they are licensees.
1. An entrant serving some PURPOSE OF THE POSSESSOR is an INVITEE (mailman, garbage collector)
2. One who comes UNDER NORMAL CIRCUMSTANCES DURING WORKING HOURS generally is treated as an INVITEE (health inspectors, census takers)
3. FIREFIGHTER’S RULE: police and firefighters are LICENSEES based on public policy or assumption of risk grounds.

SCOPE OF INVITATION cannot be exceeded.

DUTY OWED
General duty to use reasonable and ordinary care in keeping the property reasonably safe for the benefit of the invitee, which includes a DUTY TO MAKE REASONABLE INSPECTIONS to discover dangerous conditions and thereafter make them safe.
WARNING MAY SUFFICE
OBVIOUS DANGER: no duty to warn

Question 626

Torts: Negligence: Duty of Care: What is Applicable Standard of Care: Standard of Care Owed by Owners and/or Occupiers of Land: Duties of Possessor to Those on the Premises: Users of Recreational Land

Answer 626

Usually statutory.

If an owner or occupier of OPEN LAND permits the public to use the land for recreational purposes WITHOUT CHARGING A FEE, the landowner is not liable for injuries suffered by recreational user unless the owner WILLFULLY AND MALICIOUSLY failed to guard or warn of a dangerous condition or activity.

Question 627

Torts: Negligence: Duty of Care: What is Applicable Standard of Care: Standard of Care Owed by Owners and/or Occupiers of Land: Duties of Possessor to Those on the Premises: Modern Trend

Answer 627

Rejection of rules based on entrant’s legal status and simply apply a reasonable person standard.

Question 628

Torts: Negligence: Duty of Care: What is Applicable Standard of Care: Standard of Care Owed by Owners and/or Occupiers of Land: Duties of Lessors of Realty

Answer 628

Lessor must give WARNING to the lessee of EXISTING DEFECTS in the premises of which the lessor is aware, or has reason to know, and which he knows the lessee is not likely to discover on reasonable inspection.

If lessor has covenanted to make repairs and reserves the right to enter the premises for the purpose of inspecting for defects and repairing them, he is subject to LIABILITY FOR UNREASONABLY DANGEROUS CONDITIONS.

If the lessor is under no obligation to make repairs but does so NEGLIGENTLY, he is liable for harm from the defect that he failed to correct.

If the lessor leases the premises knowing that the lessee intends to admit the public, the lessor is subject to LIABILITY FOR UNREASONABLY DANGEROUS CONDITIONS EXISTING AT THE TIME HE TRANSFERS POSSESSION where the nature of the defect and length and nature of the lease indicate that the tenant will not repair (short lease–3 days). WARNING NOT SUFFICIENT

Otherwise tenant has same liability as an owner or possessor of land.

Question 629

Torts: Negligence: Duty of Care: What is Applicable Standard of Care: Standard of Care Owed by Owners and/or Occupiers of Land: Duties of Vendor of Realty

Answer 629

At time of transfer: DUTY TO DISCLOSE concealed, unreasonably dangerous conditions of which the vendor knows or has reason to know, and of which he knows the vendee is ignorant and is not likely to discover on reasonable inspection. Liability continues until the vendee discovers the defect.

Question 630

Torts: Negligence: Duty of Care: What is Applicable Standard of Care: Statutory Standards of Care

Answer 630

The precise standard of care in a common law negligence case may be established by proving the applicability to that case of a statute providing for a CRIMINAL penalty. If this is done, the statute’s specific duty will replace the more general common law duty of due care. In proving the availability of the statutory standard, plaintiff must show the following:

1. Plaintiff Within Protected Class that statute intended to protect
2. Particular Harm to Be Avoided was what statute was designed for
3. Standards are Clearly Defined (who, what, when, and where)

EXCUSE FOR VIOLATION

1. Compliance would cause more danger than violation.
2. Compliance beyond the defendant’s control.

NEGLIGENCE PER SE: plaintiff will have established a CONCLUSIVE PRESUMPTION OF DUTY AND BREACH OF DUTY (majority rule)

REBUTTABLE PRESUMPTION OF DUTY AND BREACH (minority rule)

Compliance with a statute does not necessarily prove due care.

Where a statute provides a civil remedy, the plaintiff will sue directly under the law.

Question 631

Torts: Negligence: Duty of Care: What is Applicable Standard of Care: Duty Regarding Negligent Infliction of Emotional Distress

Answer 631

A duty to avoid negligent infliction of emotional distress may be breached when the defendant creates a FORESEEABLE RISK OF PHYSICAL INJURY to the plaintiff.

Plaintiff must prove:

1. Plaintiff must be within the ZONE OF DANGER (threat of physical impact).
2. Plaintiff must suffer PHYSICAL SYMPTOMS from the distress (emotional distress without physical symptoms not actionable).

EXCEPTIONS

1. BYSTANDER NOT IN ZONE OF DANGER SEEING INJURY TO ANOTHER
   (i) plaintiff and person injured are CLOSELY RELATED
   (ii) PLAINTIFF WAS PRESENT at the scene of the injury
   (iii) plaintiff PERSONALLY OBSERVED OR PERCEIVED the event
2. SPECIAL RELATIONSHIP BETWEEN PLAINTIFF AND DEFENDANT (doctor negligently confused files an told patient he had terminal illness upon which the patient had a heart attack)
3. OTHER SITUATIONS: erroneous report of death of a relative; mishandling a corpse

Question 632

Torts: Negligence: Duty of Care: What is Applicable Standard of Care: Affirmative Duties to Act

Answer 632

1. GENERAL RULE–NO DUTY
2. ASSUMPTION OF DUTY TO ACT BY ACTING – must continue assistance under ordinary, prudent, reasonable person standard
3. PERIL DUE TO DEFENDANT’S CONDUCT – results in a duty to aid or assist
4. SPECIAL RELATIONSHIP BETWEEN PARTIES
   (i) common carriers–duty to use reasonable care to aid or assist passengers
   (ii) duty of places of public accommodation–duty to use reasonable care to aid or assist their patrons and to prevent injury to them from third parties
5. CONTRACT CREATING DUTY–reasonable person standard
6. DUTY TO CONTROL THIRD PERSONS–where defendant had the ACTUAL ABILITY and AUTHORITY to control the third person’s action and defendant KNOWS or SHOULD KNOW that the third person is likely to commit such acts as would require exercise of control by the defendant.

Question 633

Torts: Negligence: Causation: Proximate Cause (Legal Causation): Indirect Cause Cases

Answer 633

An indirect cause case is one where the facts indicate that a force came into motion AFTER the time of the defendant’s negligent act and combined with the negligent act to cause some injury to plaintiff. INTERVENING FORCES are present. Whether an intervening force will cut off defendant’s liability for plaintiff’s injury is determined by foreseeability.

Foreseeable Results Caused by Foreseeable Intervening Forces–Defendant Liable

(i) Dependent Intervening Forces–normal responses or reactions to the situation created by defendant’s negligence are almost always foreseeable (subsequent medical malpractice; negligence of rescuers; efforts to protect person or property; reaction forces; subsequent disease; subsequent accident)
(ii) Independent Intervening Forces–not a response or reaction but may be foreseeable where the defendant’s negligence increased the risk that these forces would cause harm to plaintiff (negligent acts of third persons; criminal acts and intentional torts of third persons; acts of god)

Foreseeable Results Caused by Unforeseeable Intervening Forces–Defendant Usually Liable–most courts would generally find liability here because they give greater weight to foreseeability of result than to foreseeability of intervening force. (EXCEPTION: unforeseeable crime or intentional tort is a SUPERSEDING FORCE that cuts off defendant’s liability.

Unforeseeable Results Caused by Foreseeable Intervening Forces–Defendant not Liable

Unforeseeable Results Caused by Unforeseeable Intervening Forces–Defendant not Liable–SUPERSEDING FORCE breaks the causal connection.

UNFORESEEABLE EXTENT OR SEVERITY OF INJURY–Defendant liable (eggshell skull plaintiff)

Question 634

Torts: Negligence: Damages: Duty to Mitigate Damages

Answer 634

As in all cases, plaintiff has a duty to take reasonable steps to mitigate damages.

Property damages: preserve and safeguard the property

Personal injury: seek appropriate treatment to effect a cure and to prevent aggravation.

Failure to mitigate precludes recovery of any additional damages caused by the aggravation of the injury.

Question 635

Torts: Negligence: Damages: Collateral Source Rule

Answer 635

As a general rule, damages are not reduced or mitigated by reason of benefits received by plaintiff from other sources (health insurance, sick pay from employer). Hence, at trial, defendants may not introduce evidence relating to any such financial aid from other sources.

Question 636

Torts: Negligence: Defenses to Negligence: Contributory Negligence: Avoidable Consequences Distinguished

Answer 636

Plaintiff owes a duty to mitigate damages to person or property after the duty is inflicted. If he does not properly do this, his damages may be reduced. Failure to do this is an AVOIDABLE CONSEQUENCE not contributory negligence.

Question 637

Torts: Negligence: Defenses to Negligence: Contributory Negligence: No Defense to ___?

Answer 637

intentional tort or willful or wanton misconduct

Question 638

Torts: Negligence: Defenses to Negligence: Contributory Negligence: Effect of Contributory Negligence

Answer 638

At common law, plaintiff’s contributory negligence completely barred his right to recover. This was so even though the degree of defendant’s negligence was much greater than that of plaintiff.

LAST CLEAR CHANCE: The doctrine of last clear chance permits the plaintiff to recover DESPITE his own contributory negligence. Under this rule, the person with the last clear chance to avoid an accident who fails to do so is liable for negligence.

HELPLESS PERIL–Plaintiff, through own contributory negligence puts himself in a position of actual peril from which he cannot extricate himself. Defendant is liable if she had ACTUAL knowledge of plaintiff’s predicament or if she SHOULD HAVE KNOWN of plaintiff’s predicament.

INATTENTIVE PERIL–Plaintiff, through own negligence, is in a position of actual peril from which he could extricate himself if he were attentive. Almost all states require ACTUAL knowledge of plaintiff’s predicament on defendant’s part.

PRIOR NEGLIGENCE CASES: for last clear chance to operate, defendant must have been able to avoid harming plaintiff AT THE TIME OF THE ACCIDENT. In short, defendant has to have had “the last clear chance” to avoid the accident.

Question 639

Torts: Negligence: Defenses to Negligence: Contributory Negligence: Imputed Contributory Negligence

Answer 639

torts page 69

Question 640

Crimlaw: Offenses Involving Judicial Procedure: Compounding a Crime

Answer 640

At common law, the misdemeanor of compounding a crime consisted of entering into an agreement FOR VALUABLE CONSIDERATION to not prosecute another for felony or to conceal the commission of a felony or whereabouts of a felon.

Modern Statutes: same but it refers to ANY CRIME not just felonies. A few states makes compounding a crime a felony.

Question 641

Crimlaw: Offenses Involving Judicial Procedure: Misprision of a Felony

Answer 641

At common law, the misdemeanor of misprision of a felony consisted of the failure–by some other than a principal or accessory before the fact–to disclose or report knowledge of the commission of a felony.

MODERN: no obligation to report a crime

Question 642

Torts: Products Liability: Basic Principles: Existence of a Defect: What is a Defective Product?

Answer 642

In most jurisdictions, a product can be the basis for a products liability action if it is in a “defective condition unreasonably dangerous” to users.

MANUFACTURING DEFECTS
Plaintiff will prevail if the product was DANGEROUS BEYOND THE EXPECTATION OF THE ORDINARY CONSUMER because of a departure from its intended design.

Defective Food Products: Defects in food products are treated the same as manufacturing defects–the “consumer expectation” approach is used.

DESIGN DEFECTS
Plaintiff must show a reasonable alternative design, i.e., that a LESS DANGEROUS MODIFICATION OR ALTERNATIVE WAS ECONOMICALLY FEASIBLE.

The factors that courts consider under the “feasible alternative” approach are the following:

(i) Usefulness and desirability of the product;
(ii) Availability of safer alternative products;
(iii) The dangers of the product that have been identified by the time of trial;
(iv) Likelihood and probable seriousness of injury
(v) Obviousness of the danger
(vi) Normal public expectation of danger (especially established products;
(vii) Avoidability of injury by care in use of product (including role of instructions and warnings); and
(viii) Feasibility of eliminating the danger without seriously impairing the product’s function or making it unduly expensive.

EFFECT OF GOVERNMENT SAFETY STANDARDS
A product is deemed to be defective in design or warnings if it fails to comply with applicable government safety standards. A product’s COMPLIANCE with such standards is NONCONCLUSIVE EVIDENCE that the product is NOT defective.

Federal labeling requirements DO NOT PREEMPT state products liability law.

Question 643

Torts: Products Liability: Basic Principles: Existence of a Defect: What is a Defective Product?

Answer 643

In most jurisdictions, a product can be the basis for a products liability action if it is in a “defective condition unreasonably dangerous” to users.

MANUFACTURING DEFECTS
Plaintiff will prevail if the product was DANGEROUS BEYOND THE EXPECTATION OF THE ORDINARY CONSUMER because of a departure from its intended design.

Defective Food Products: Defects in food products are treated the same as manufacturing defects–the “consumer expectation” approach is used.

DESIGN DEFECTS
Plaintiff must show a reasonable alternative design, i.e., that a LESS DANGEROUS MODIFICATION OR ALTERNATIVE WAS ECONOMICALLY FEASIBLE.

The factors that courts consider under the “feasible alternative” approach are the following:

(i) Usefulness and desirability of the product;
(ii) Availability of safer alternative products;
(iii) The dangers of the product that have been identified by the time of trial;
(iv) Likelihood and probable seriousness of injury
(v) Obviousness of the danger
(vi) Normal public expectation of danger (especially established products;
(vii) Avoidability of injury by care in use of product (including role of instructions and warnings); and
(viii) Feasibility of eliminating the danger without seriously impairing the product’s function or making it unduly expensive.

EFFECT OF GOVERNMENT SAFETY STANDARDS
A product is deemed to be defective in design or warnings if it fails to comply with applicable government safety standards. A product’s COMPLIANCE with such standards is NONCONCLUSIVE EVIDENCE that the product is NOT defective.

Federal labeling requirements DO NOT PREEMPT state products liability law.

Question 644

Torts: Products Liability: Liability Based on Negligence: Breach of Duty

Answer 644

To prove breach of duty, the plaintiff must show

1. NEGLIGENT CONDUCT by the defendant leading to
2. the supplying of a DEFECTIVE PRODUCT by the defendant

NEGLIGENCE: the defendant’s conduct must fall below the standard of care expected of a reasonable person under like circumstances, considering such superior skill or training as defendant has or purports to have.

PROOF OF NEGLIGENCE IN MANUFACTURING DEFECT CASE
Liability of Manufacturer: may invoke res ipsa loquitor
Liability of Dealer: dealer who buys from a reputable supplier or manufacturer need only make a cursory inspection of the goods to avoid liability.

PROOF OF NEGLIGENCE IN A DESIGN DEFECT CASE
Those designing the product KNEW OR SHOULD HAVE KNOWN of enough facts to put a reasonable manufacturer on notice about the dangers of marketing the product as designed. Negligence is not shown if the danger of the product becomes apparent to the reasonable manufacturer only after the product has reached the public.

DEFECTIVE PRODUCT: same as for strict liability

Question 645

Torts: Products Liability: Liability Based on Negligence: Causation and Intermediary Negligence

Answer 645

The standard negligence analysis for both actual causation and proximate cause applies to products liability cases based on negligence.

An intermediary’s negligent failure to discover a defect is NOT a superseding cause and the defendant whose original negligence created the defect will be held liable along with the intermediary. But when the intermediary’s conduct becomes something more than ordinary foreseeable negligence, it becomes a superseding cause.

Question 646

Torts: Products Liability: Liability Based on Negligence: Damages and Defenses

Answer 646

DAMAGES
Plaintiff may recover for personal and property damages under the usual negligence analysis. However, if the plaintiff suffers ONLY economic loss (the product does not work as well as expected or requires repairs), most courts do not permit recovery under a negligence theory, requiring the plaintiff to bring an action for breach of warrant to recovery such damages.

DEFENSES
Standard negligence defenses, so in comparative negligence states (like PA) plaintiff’s contributory negligence may be used to reduce his recovery in an action against a negligent supplier of defective chattels.

Question 647

Torts: Nuisance: Public Nuisance

Answer 647

An act that unreasonably interferes with the HEALTH, SAFETY, OR PROPERTY RIGHTS OF THE COMMUNITY. Recovery is available only if a private party has suffered some unique damage not suffered by the public at large.

Question 648

Torts: Vicarious Liability: Bailor for Bailee

Answer 648

NOT vicariously liable

Question 649

Torts: Vicarious Liability: Tavernkeepers

Answer 649

At common law, no liability.

DRAMSHOP ACTS: create a cause of action in favor of any third person injured by the intoxicated vendee.

(several courts have imposed liability even in the absence of an act–based on foreseeability general negligence principles where serving a minor or an obviously intoxicated person)

Question 650

Conlaw: Powers of the Federal Government: Judicial Power: Jurisdiction of the Supreme Court: Appellate Jurisdiction

Answer 650

Article III, Section 2 further provides that “in all other Cases before mentioned [i.e., arising under the Constitution, Act of Congress or treaty], the Supreme Court shall have appellate jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

STATUTORY APPLICATION OF APPELLATE JURISDICTION
Congress has provided two methods for invoking Supreme Court Appellate jurisdiction:

1. WRIT OF CERTIORARI: Supreme Court has complete discretion to hear cases that come to it by writ of certiorari. A case will be heard if four justices agree to hear it.
   (i) Cases from highest state court where constitutionality of a federal statute, federal treaty, or state statute is called into question; or a state statute allegedly violates federal law.
   (ii) All cases from federal courts of appeals.
2. APPEAL: Supreme Court MUST hear those few cases that come to it by appeal. Appeal is available only as to decisions made by three-judge federal district court panels that grant or deny injunctive relief.

LIMITATIONS ON STATUTORY REGULATION:

1. Congress may eliminate specific avenues for Supreme Court review as long as it does not eliminate all avenues. (example–two statutes allowing habeas corpus–one can be eliminated by congress)
2. Although Congress may eliminate Supreme Court review of certain cases within the federal judicial power, it must permit jurisdiction to remain in SOME lower federal court.
3. If Congress were to deny ALL Supreme Court review of an alleged violation of constitutional rights, this would violate due process of law.

Question 651

Conlaw: Powers of the Federal Government: Judicial Power: Constitutional and Self-Imposed Limitations on Exercise of Federal Jurisdictions–Policy of “Strict Necessity”: list

Answer 651

1. No Advisory Opinions
2. Ripeness
3. Mootness
4. Standing
5. Adequate and Independent State Grounds
6. Abstention
7. Political Questions
8. Eleventh Amendment Limits on Federal Courts

Question 652

Conlaw: Powers of the Federal Government: Judicial Power: Constitutional and Self-Imposed Limitations on Exercise of Federal Jurisdictions–Policy of “Strict Necessity”: No Advisory Opinions

Answer 652

Supreme Court’s interpretation of the case and controversy requirement in Article III bars rendition of advisory opinions. Thus, federal courts will not render decisions in MOOT cases, COLLUSIVE suits, or cases involving challenges to governmental legislation or policy whose enforcement is neither actual nor threatened.

COMPARE DECLARATORY JUDGMENTS
Federal courts can hear actions for declaratory relief. A case or controversy will exist if there is an actual dispute between the parties having adverse legal interest. Complainants must show that they have engaged in (or wish to engage in) specific conduct and that the challenged action poses a REAL AND THREATENED DANGER to their interests. However, the federal courts will not determine the constitutionality of a statute if it has never been enforced and there is no real fear that it ever will be.

Question 653

Conlaw: Powers of the Federal Government: Judicial Power: Constitutional and Self-Imposed Limitations on Exercise of Federal Jurisdictions–Policy of “Strict Necessity”: Mootness

Answer 653

A real, live controversy must exist at all stages of review, not merely when the complaint if filed.

Exception–Capable of Repetition but Evading Review

Class Actions–a class representative may continue to pursue the action even though the representative’s controversy has become moot, as long as the claims of others in the class are still viable.

Question 654

Conlaw: Powers of the Federal Government: Judicial Power: Constitutional and Self-Imposed Limitations on Exercise of Federal Jurisdictions–Policy of “Strict Necessity”: Standing generally

Answer 654

A person has standing only if she can demonstrate a concrete stake in the outcome of the controversy.

COMPONENTS
INJURY: is injured by a government action or government has made a clear threat to cause injury to her if she fails to comply with a government law, regulation, or order. Some SPECIFIC INJURY must be alleged, and it MUST BE MORE than the merely theoretical injury that all persons suffer by seeing their government engage in unconstitutional actions. (Need not be economic.)
CAUSATION: must be causal connection between the injury and the conduct complained of.
REDRESSABILITY: whether a ruling favorable to the plaintiff would eliminate the harm to him.

Question 655

Conlaw: Powers of the Federal Government: Judicial Power: Constitutional and Self-Imposed Limitations on Exercise of Federal Jurisdictions–Policy of “Strict Necessity”: Common Standing Issues

Answer 655

1. Congressional Conferral of Standing: congress has no power to completely eliminate the case or controversy requirement, because the requirement is based in the Constitution. However, a federal statute may create new interests, injury to which may be sufficient for standing.
2. Standing to Enforce Government Statutes–Zone of Interests: in some instances a plaintiff may bring suit to force government actors to conform their conduct to requirements of a specific federal statute. Even in such cases, the person must have an injury in fact. Often court asks if the injury is within the zone of interests that that the statute intended to protect.
3. Standing to Assert Rights of Others: a plaintiff may ASSERT THIRD PARTY RIGHTS where he has suffered injury and:
   (i) third parties find it difficult to assert their own rights (NAACP freedom of association case because members could not file suit without disclosing their identity)
   (ii) injury asserted by plaintiff adversely affects his relationship with third parties, resulting in an indirect violation of their rights
4. Standing of Organizations: has standing to challenge government action that causes injury to the organization itself. It also has standing to challenge government actions that cause an injury in fact to its members if the organization can demonstrate the following three facts:
   (i) there must be an injury in fact to the members of the organization that would give individual members a right to sue on their own behalf;
   (ii) the injury to the members must be related to the organization’s purpose; AND
   (iii) neither the nature of the claim nor the relief requested requires participation of the individual members in the lawsuit.
5. No Citizenship Standing: too generalized
6. Taxpayer standing
   (i) Generally no standing to litigate government expenditures.
   (ii) Exception–Congressional Measures Under Taxing and Spending Power that Violates Establishment Clause. Must establish that the challenged measure:
   (a) was enacted under CONGRESS’S taxing and spending power; and
   (b) exceeds some specific limitation on the power.
7. Legislator’s Standing: must have sufficient personal stake and suffer sufficient concrete injury
8. Assignee Standing: yes even if agrees to remit any proceeds recovered back to the assignor

Question 656

Conlaw: Powers of the Federal Government: Judicial Power: Constitutional and Self-Imposed Limitations on Exercise of Federal Jurisdictions–Policy of “Strict Necessity”: Adequate and Independent State Grounds

Answer 656

The Supreme Court will hear a case from a state court only if the state court judgment turned on federal grounds. The Court will refuse jurisdiction if it finds ADEQUATE AND INDEPENDENT nonfederal grounds to support the state decisions.

ADEQUATE
Fully dispositive of the case, so that even if the federal grounds are wrongly decided, it would not affect the outcome of the case.

INDEPENDENT
If the state court’s interpretation of its state provision was based on federal case law interpreting an identical federal provision, the state law grounds for the decision are not independent.

WHERE BASIS IS UNCLEAR
If it is unclear whether the state court decision turned on federal or state law, the Supreme Court will dismiss the case or remand it to the state court for clarification. However, the Court will usually assume there is no adequate state ground unless the state court expressly stated that its decision rests on state law.

Question 657

Conlaw: Powers of the Federal Government: Judicial Power: Constitutional and Self-Imposed Limitations on Exercise of Federal Jurisdictions–Policy of “Strict Necessity”: Abstention

Answer 657

1. Unsettled State Law
   When a federal constitutional claim is premised on an unsettled question of state law, the federal court should abstain temporarily so as to give state courts a chance to settle the underlying state law question.
2. Pending State Proceedings
   Generally, federal courts will NOT ENJOIN PENDING STATE CRIMINAL PROCEEDINGS. (Younger)

PENDING
if begun before the federal court begins proceedings on the merits. Proceeding of substance must occur first in federal court before an injunction will issue.

CIVIL AND ADMINISTRATIVE PROCEEDINGS
Federal courts should abstain from pending state administrative or civil proceedings when those proceedings involve an important state interest.

EXCEPTIONS
An order enjoining state proceedings will be issued in cases of PROVEN HARASSMENT or PROSECUTION TAKEN IN BAD FAITH (without hope of a valid conviction).

Question 658

Conlaw: Powers of the Federal Government: Judicial Power: Constitutional and Self-Imposed Limitations on Exercise of Federal Jurisdictions–Policy of “Strict Necessity”: Political Questions

Answer 658

Political questions are:

1. Those issues committed by the Constitution to another branch of government; or
2. Those inherently incapable of resolution and enforcement in the judicial process.

COMPARE–NONPOLITICAL CONTROVERSIES

1. Legislative Apportionment (one person one vote)
2. Presidential Papers and Communications (privileged unless documents necessary to the continuation of criminal proceedings–justiciable and not political question) (Nixon)

Question 659

Conlaw: Powers of the Federal Government: Judicial Power: Constitutional and Self-Imposed Limitations on Exercise of Federal Jurisdictions–Policy of “Strict Necessity”: 11th Amendment Limits on Federal Courts

Answer 659

The Eleventh Amendment is a jurisdictional bar that modifies the judicial power by prohibiting a federal court from hearing a private party’s or foreign government’s claims against a state government.

WHAT IS BARRED?

(i) actions against state governments for damages;
(ii) actions against state governments for injunctive or declaratory relief wher the state is named as a party;
(iii) actions against state government officers where the effect of the suit will be that retroactive damages will be paid from the state treasury or where the action is the functional equivalent of a quiet title action that would divest the state of ownership of land; and
(iv) actions against state government officers for violating state law.

WHAT IS NOT BARRED?
Actions against local governments.
Actions by the United States government or other state government
Bankruptcy proceedings

EXCEPTIONS TO THE ELEVENTH AMENDMENT

1. Certain actions against state officials
   (i) Actions against state officials for Injunctions
   (ii) Actions against state officials for monetary damages from official
   (iii) Actions against state officers for prospective payments from state (but barred if retroactive damages to be paid from state treasury)
2. Congressional Removal of Immunity Under 14th
   Congress can remove the states’ 11th Amendment immunity under its power to prevent discrimination under the 14th Amendment.

Question 660

Conlaw: Powers of the Federal Government: Legislative Power: Enumerated and Implied Powers: Necessary and Proper “Power”

Answer 660

Necessary and Proper Clause grants Congress the power to make all laws necessary and proper (i.e., appropriate) for carrying into execution ANY power granted to ANY branch of the federal government.

(The Necessary and Proper Clause is NOT a basis of power, it merely gives Congress the power to execute specifically granted powers. Thus, if a bar exam asks what is the best source of power for a particular act of Congress, the answer should not be the Necessary and Proper Clause, standing alone. )

Question 661

Conlaw: Powers of the Federal Government: Legislative Power: Enumerated and Implied Powers: Taxing Power

Answer 661

Congress has the power to lay and collect taxes, imports, and excises, but they must be uniform throughout the US. Capitation and other direct taxes must be laid in proportion to the census, and direct taxes must be apportioned among the states.

UNIFORMITY: requirement of uniformity in the levy of indirect taxes (generally this means any kind of “privilege” tax, including duties and excises) and has been interpreted by the Court to mean GEOGRAPHICAL UNIFORMITY only–i.e., identical taxation of the taxed Article in every state where it is found.

DIRECT TAXES–MUST BE APPORTIONED: a direct tax (imposed directly on property or on the person) has seldom been employed by Congress because of the cumbersome APPORTIONMENT REQUIREMENTS; taxes on income from real or personal property were initially held “direct” by the Court, but the resulting need for apportioning such taxes was obviated by the 16th Amendment (income tax amendment).

EXPORT TAXES NOT PERMITTED: by either Congress or the states.

TAXES ARE GENERALLY VALID: absent a specific restriction such as those above, be very hesitant to rule against a tax measure on the exam. A tax measure will be upheld if it bears some REASONABLE RELATIONSHIP TO REVENUE PRODUCTION or if Congress has the POWER TO REGULATE the taxed activity.

Question 662

Conlaw: Powers of the Federal Government: Legislative Power: Enumerated and Implied Powers: Spending Power

Answer 662

Congress may spend to “provide for the common defense and general welfare.” Art. I. This spending may be for ANY PUBLIC PURPOSE–not merely the accomplishment of other enumerated powers. Nonspending regulations are not authorized.

REGULATION THROUGH SPENDING
Congress can use its power to “regulate” areas, even where it otherwise has no power to regulate the area by requiring entities that accept government money to act in a certain manner. (i.e., attaching strings to government grants)

Question 663

Conlaw: Powers of the Federal Government: Legislative Power: Enumerated and Implied Powers: Commerce Power

Answer 663

Art I, Section 8, Clause 3 empowers Congress to “regulate commerce with foreign nations and among the several states, and with Indian tribes.”

COMMERCE:

1. Includes Basically All Activity Affecting Two or More States
2. Includes Transportation or Traffic whether or not commercial activity is involved (vehicular transportation not required–any transmission across state lines, such as electricity, telephone, mail)

SUBSTANTIAL ECONOMIC EFFECT
Supreme Court has sustained congressional power to regulate any activity, local or interstate, that either in itself OR IN COMBINATION WITH OTHER ACTIVITIES has a SUBSTANTIAL ECONOMIC EFFECT UPON or EFFECT ON MOVEMENT IN, interstate commerce.

Power Not Unlimited: To be within the Congress’s power under the Commerce Clause, a federal law must either:

(i) Regulate the channels of interstate commerce;
(ii) Regulate the instrumentalities of interstate commerce and persons and things in interstate commerce; or
(iii) Regulate activities that have a substantial effect on interstate commerce.

INTRASTATE ACTIVITY
When Congress attempts to regulate intrastate activity under the third prong, the Court will uphold the regulation if it is of ECONOMIC OR COMMERCIAL ACTIVITY and the court can conceive of a RATIONAL BASIS on which Congress could conclude that the activity IN AGGREGATE substantially affects interstate commerce. However, if the regulated intrastate activity is noncommercial and noneconomic, it cannot be regulated under the Commerce Clause unless Congress can factually show a SUBSTANTIAL ECONOMIC EFFECT on interstate commerce.

Question 664

Conlaw: Powers of the Federal Government: Legislative Power: Enumerated and Implied Powers: War and Related Powers

Answer 664

Declare war, raise and support armies, provide for and maintain a navy, make rules for the government and regulation of the armed forces, and organize, arm, discipline, and call up the militia. Of course, several other congressional powers may have direct or indirect application to military purposes: tax and spending power, commerce power, Senate’s treat consent power, maritime power, investigatory power, etc.

ECONOMIC REGULATION
During War: regulatory power of Congress, especially in economic matters and mobilization of troops, in support of war effort is PERVASIVE; thus, the Court has sustained national price and rent control, as well as conscription and regulation of civilian/military production and services.
Postwar: pervasive regulatory power may be validly extended into post-wartime periods both to REMEDY WARTIME DISRUPTIONS and to cope with COLD WAR EXIGENCIES. Legislation regarding veterans may extend as long as veterans survive.

MILITARY COURTS AND TRIBUNALS
Power comes from Art I (congressional power to make rules for government and regulation of armed forces), buttressed by the Necessary and Proper Clause.

Judicial Review: The regular federal (or state) courts have NO GENERAL POWER TO REVIEW court-martial proceedings. However, in habeas corpus cases, the Art. III courts, including the Supreme Court, may make a limited inquiry into the military court’s jurisdiction of the person and offense or the validity of the court’s legislative creation.

Court-Martial of Enemy Civilians and Soldiers Permitted: Military courts may try enemy civilians as well as enemy military personnel, at least during wartime.

Suspension of Habeas Corpus for Enemy Combatants:
Congress does not have the power to deny habeas corpus review to all aliens detained as enemy combatants absent a meaningful substitute for habeas corpus review. A meaningful substitute would allow prisoners to
(i) challenge the President’s authority to detain them indefinitely;
(ii) contest the military commission’s findings of fact;
(iii) supplement the record on review with exculpatory evidence discovered after the military commission proceedings, and
(iv) request release

Court-Martial of American Soldiers Permitted:
Military courts have jurisdiction over ALL offenses (not just service related) committed by persons who are members of the armed services, both when charged and at the time of the offense.

Court-Martial of American Civilians Generally Prohibited: (violates the 5th and 6th amendments–particular right to jury trial)

(i) as long as actual warfare has not forced courts to shut down. even though martial law has been declared;
(ii) even though the civilians accused may have been members of the armed forces when committing the alleged offense;
(iii) or are dependents of military personnel accompanying the latter overseas;
(iv) or are civilian employees of the military forces at overseas bases and installations.

CALLING FORTH THE MILITIA
Under the militia clauses, Congress has the power to authorize the President to order members of National Guard units into federal service–even in circumstances that do not involve a national emergency (e.g., for training outside of the US). The President need not obtain the consent of a governor to call it into such service.

Question 665

Conlaw: Powers of the Federal Government: Legislative Power: Enumerated and Implied Powers: Investigatory Power

Answer 665

The power to investigate to secure information as a basis for potential legislation or other official action (such as impeachment) is a well-established implied power. It is a VERY BROAD POWER, in that the investigation need not be directed toward enactment of particular legislation.

LIMITATIONS

1. Authorized Investigations: investigatory inquiry must be expressly or impliedly authorized by the congressional house concerned, i.e., by statute or resolution creating or directing the investigating committee or subcommittee.
2. Witnesss’ Rights
   (i) 5th Amendment available unless a statutory immunity co-extensive with the constitutional immunity is granted.
   (ii) Relevance: information sought must be relevant
   (iii) Procedural Due Process: presence of counsel, right of cross examination (not sure if constitutionally required or required by house rule or statute)
3. Enforcement of Investigatory Powers: Congress can hold a subpoenaed witness in contempt for failure to answer before Congress.

Question 666

Conlaw: Powers of the Federal Government: Legislative Power: Enumerated and Implied Powers: Property Power

Answer 666

Congress has power to “dispose of and make all needful rules and regulations respecting the territory or other property belonging to the US.”

Property clause even empowers Congress to protect wildlife wandering onto federal lands.

NO LIMITS ON DISPOSITION OF PROPERTY

EMINENT DOMAIN:indirectly recognized by 5th Amendment–nor shall private property be taken for public use, without just compensation” Federal taking must be for the purpose of EFFECTUATING AN ENUMERATED POWER under some provision of the Constitution.

Question 667

Conlaw: Powers of the Federal Government: Legislative Power: Enumerated and Implied Powers: Police Power

Answer 667

DC and territories only

Question 668

Conlaw: Powers of the Federal Government: Legislative Power: Enumerated and Implied Powers: Bankruptcy Power

Answer 668

Interpreted as nonexclusive–state law is superseded only to the extent that it conflicts with federal legislation.

Question 669

Conlaw: Powers of the Federal Government: Legislative Power: Enumerated and Implied Powers: Postal Power

Answer 669

Art. I, Section 8, Clause 7 empowers Congress to establish post offices and post roads.

EXCLUSIVE: neither private business nor states may compete without Congress’s consent

SCOPE OF POWER
Congress may validly classify and place REASONABLE RESTRICTIONS on use of the mails, BUT IT MAY NOT DEPRIVE any citizen or group of citizens of the general mail privilege or regulate the mail in such a way as to abridge freedom of speech or purse or violate the ban of the 4th Amendment against unreasonable search and seizure.

Question 670

Conlaw: Powers of the Federal Government: Legislative Power: Enumerated and Implied Powers: Power Over Citizenship

Answer 670

Article I, Section 8, Clause 4 empowers Congress “to establish a uniform rule of naturalization.”

EXCLUSION OF ALIENS: Congress’s power is broad.

Nonresident aliens: no right to enter US and can be denied entrance because of political beliefs.

Resident aliens: entitled to notice and hearing before deportation

NATURALIZATION AND DENATURALIZATION–EXCLUSIVE CONTROL OF CONGRESS

No Loss of Citizenship Without Consent: Under 14th Amendment, Congress may not take away a person’s citizenship without his consent.

Proof of Intent: by words or conduct; Congress may prove by preponderance of evidence

Rights of Children of Citizens: a person born in another country to US citizen parents does not have a constitutional right to become US citizens. Congress can grant citizenship to those who return within a specified period or for a specified number of years. Failure to do so causes a loss of the grant of citizenship.

Question 671

Conlaw: Powers of the Federal Government: Legislative Power: Enumerated and Implied Powers: Admiralty Power

Answer 671

Although congressional power to legislate in maritime matters is not expressed in the Constitution, the Supreme Court has implied it from the exclusive jurisdiction given the federal courts in this field by Article III, Section 2, supported by the Necessary and Proper Clause of Article I, Section 8.

EXCLUSIVE AND PLENARY POWER: except to the extent that Congress may leave some maritime matters to state jurisdiction.

NAVIGABLE WATERWAYS: admiralty power attaches to all navigable waterways–actually or potentially navigable–and to small tributaries that affect navigable waterways.

Question 672

Conlaw: Powers of the Federal Government: Legislative Power: Congressional Veto of Executive Actions

Answer 672

INVALID
A legislative veto is an attempt by Congress to overturn an executive agency action WITHOUT BICAMERALISM (passage by both houses of Congress) or PRESENTMENT (giving the bill to the president for his signature or veto).

Usually arises where Congress delegates discretionary power to President or an executive agency. In an attempt to control the delegation, Congress requires the President or agency to present an action taken under the discretionary power to certain members of Congress for approval. If they disapprove, they veto the action and that is the final decision on the action. This is unconstitutional because to be valid a legislative action (the veto) must be approved by both houses and presented to the president for his approval.

Question 673

Conlaw: Powers of the Federal Government: Executive Power: Vested in President

Answer 673

The entire “executive power” is vested in the President by Article II. Various executive functions may be and are delegated within the executive branch by the President or Congress.

Question 674

Conlaw: Powers of the Federal Government: Executive Power: Domestic Powers: Pardons

Answer 674

Grant reprieves and pardons for offenses against the US, except in cases of impeachment. Power held to apply before, during, and after trial and to extend to the offense of criminal contempt, but not to civil contempt, inasmuch as the latter involves the rights of third parties.

The pardon power CANNOT BE LIMITED BY CONGRESS, and includes power to commute a sentence on any condition the President chooses, as long as they are not independently unconstitutional.

Question 675

Conlaw: Powers of the Federal Government: Executive Power: Domestic Powers: Veto Power

Answer 675

CONGRESS MAY OVERRIDE VETO BY 2/3 VOTE OF EACH HOUSE

PRESIDENT HAS 10 DAYS TO VETO (excepting Sundays):

• -Bill becomes law if Congress still in session
• -Bill is automatically vetoed if Congress not in session (pocket veto)

Brief recesses during an annual session create no pocket veto opportunity.

LINE ITEM VETO UNCONSTITUTIONAL (rationale: president’s veto power does not allow him to amend or repeal laws passed by Congress)

Question 676

Conlaw: Powers of the Federal Government: Executive Power: Domestic Powers: Power as Chief Executive

Answer 676

President’s power over internal affairs as the chief executive is unclear.

Best guide: Justice Jackson in Youngstown (1952)

1. Where the President acts with the express or implied authority of Congress, his authority is at its maximum and his actions likely are valid;
2. Where the President acts where Congress is silent, his action will be upheld as long as the act does not take over the powers of another branch of the government or prevent another branch from carrying out its tasks.
3. Where the President acts against the express will of Congress, he has little authority and his action likely is invalid.

NO POWER TO IMPOUND OR TAKE CARE
President has no power to refuse to spend appropriate funds when Congress has expressly mandated that they be spent.

Question 677

Crimpro: Fourth Amendment: Arrests and Other Detentions: Deadly Force

Answer 677

There is a 4th Amendment seizure when an officer uses deadly force to apprehend a suspect. An officer may not use deadly force unless it is REASONABLE to do so under the circumstances.

Question 678

Conlaw: Federal System: Relative Spheres of Federal and State Power: Absence of Federal and State Powers

Answer 678

Cannot be altered by state or Congress. Such as the Qualifications Clauses setting the qualifications to serve in Congress–state imposed term limits for members of congress invalidated.

Question 679

Conlaw: Federal System: Relative Spheres of Federal and State Power: Interstate Compact Clause

Answer 679

Constitution provides that states may enter into agreements or compacts with other states upon the consent of Congress. However, not all agreements between states are compacts requiring Congressional consent. Compact Clause reaches only interstate agreements that INCREASE THE POLITICAL POWER of the states at the expense of federal supremacy.

Supreme Court has power to interpret such compacts–the member states do not have final authority over interpretations.

Question 680

Conlaw: Federal System: Relative Spheres of Federal and State Power: Full Faith and Credit Clause

Answer 680

Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. However, not every decision is entitled to full faith and credit. Three requirements:

1. The court that rendered the judgment must have had JURISDICTION OVER THE PARTIES AND THE SUBJECT MATTER
2. The judgment must have been ON THE MERITS, rather than on a procedural issue, such as improper venue or running of statute of limitations; AND
3. The judgment must be FINAL.

The clause only applies to state recognition in sister states, a federal statute provides for federal recognition of state and federal decisions.

Question 681

Conlaw: Individual Guarantees Against Government or Private Action: Limitations on Power and State Action Requirement: Constitutional Restrictions on Power Over Individuals: Thirteenth Amendment

Answer 681

Provides that slavery shall not exist in the US

No requirement of State Action.
Congressional Power (through 13th Amendment enabling clause) to adopt appropriate legislation proscribing almost any private racially discriminatory act that can be characterized as a BADGE OR INCIDENT OF SLAVERY.  

EXAMPLES

• -private parties refusing to rent or sell housing to a person because of race
• -private schools refusing to admit nonwhite children
• -private employer from discriminating in hiring on the basis of race

The above examples are where Congress used its power to adopt statutes prohibiting badges of slavery; the proscribed activities would not necessarily be held to violate the 13th Amendment absent the legislation.

Question 682

Conlaw: Individual Guarantees Against Government or Private Action: Limitations on Power and State Action Requirement: Constitutional Restrictions on Power Over Individuals: Fourteenth Amendment

Answer 682

Prohibits states from depriving any person of life, liberty, or property without due process and equal protection of the law.

Requires state action.

Section 5 is an enabling clause giving Congress the power to adopt APPROPRIATE LEGISLATION to enforce the rights and guarantees provided by the 14th Amendment. Under Section 5, Congress MAY NOT EXPAND OR CREATE constitutional rights–it may only enact laws to prevent or remedy violations of rights already recognized by the courts.

Congress must point to a history or pattern of state violation of such rights and adopt legislation that is CONGRUENT AND PROPORTIONAL (i.e., narrowly tailored) to solving the identified violation.

Question 683

Conlaw: Individual Guarantees Against Government or Private Action: Limitations on Power and State Action Requirement: Constitutional Restrictions on Power Over Individuals: Fifteenth Amendment

Answer 683

A limitation on both the STATES AND FEDERAL GOVERNMENT. It prohibits them from denying any citizen the right to vote on account of race or color. Contains an enabling clause that allows Congress to adopt legislation protecting the right to vote from discrimination.

Question 684

Conlaw: Individual Guarantees Against Government or Private Action: Limitations on Power and State Action Requirement: Constitutional Restrictions on Power Over Individuals: Commerce Clause

Answer 684

Supreme Court has allowed Congress to use the Commerce Clause to limit the power of individuals over other individuals–by adopting legislation barring private racial discrimination in activities connected with interstate commerce. Under the affectation doctrine, almost any activity can be said to be connected with interstate commerce.

CIVIL RIGHTS ACT: Provisions of the Civil Rights Act of 1964 BARRING DISCRIMINATION IN PLACES OF PUBLIC ACCOMMODATION are proper and valid exercises of commerce power.

EXTENT OF COMMERCE POWER
Broad. Any business that is OPEN TO INTERSTATE TRAVELERS or that USES PRODUCTS SHIPPED IN INTERSTATE COMMERCE is covered.

Question 685

Conlaw: Individual Guarantees Against Government or Private Action: Limitations on Power and State Action Requirement: Constitutional Restrictions on Power Over Individuals: Rights of National Citizenship

Answer 685

Supreme Court has allowed Congress to limit the power of private individuals to infringe upon others’ rights of national citizenship (e.g., the right of interstate travel, the right to assemble to petition Congress for redress), without pointing to any specific constitutional source for the power.

Question 686

Conlaw: Individual Guarantees Against Government or Private Action: Limitations on Power and State Action Requirement: State Action Requirement: Exclusive Public Functions

Answer 686

State action can be found in the actions of seemingly private individuals who

(i) perform exclusive public functions, or
(ii) have significant state involvement in their activities.

EXCLUSIVE PUBLIC FUNCTIONS
Supreme Court has found that certain activities are so TRADITIONALLY the EXCLUSIVE prerogative of the state that they constitute state action even when undertaken by a private individual or organization. To date, only running a town and running an election have been found to be such exclusive public functions.

Must be traditional AND exclusive government function. (warehouseman authorized by statute to sell goods stored with him for unpaid charges is not exercising state action when he makes the sale, because while resolution of private disputes is traditionally the realm of the government it is not exclusively the realm of government)

Question 687

Conlaw: Individual Guarantees Against Government or Private Action: Limitations on Power and State Action Requirement: State Action Requirement: Significant State Involvement–Facilitating Private Action

Answer 687

State action can be found in the actions of seemingly private individuals who

(i) perform exclusive public functions, or
(ii) have significant state involvement in their activities.

Significant state involvement exists whenever a state AFFIRMATIVELY facilitates, encourages, or authorizes acts of discrimination by its citizens. Not enough if state just permits activity.

JUDICIAL APPROVAL: state court enforcement of RESTRICTIVE COVENANTS PROHIBITING SALE OR LEASE OF PROPERTY TO BLACKS constitutes state action even in civil proceedings between private parties.

PREEMPTORY CHALLENGES: because jury selection is a traditional public function and because there is overt significant participation by the government in the jury selection.

DISCRIMINATORY LAW ENFORCEMENT: example–invoke trespass and breach of peace to enforce local custom of segregated eating places

APPARENT LEGAL AUTHORITY: even if the statutes prohibit an action, it will be state action if the official is acting under color of law (apparent legal authority) to discriminate

PUBLIC DEFENDERS: a public defender does not act for the state when he represents indigent clients–so negligence or malpractice is not state action

STATE AS LESSOR FOR A RACIALLY DISCRIMINATORY LESSEE: exclusion of blacks from coffee shop located in a public building constructed by and leased from the state. The maintenance of the facility was paid for with public funds.

ADMINISTRATION OF PRIVATE DISCRIMINATORY TRUST BY PUBLIC OFFICIALS: state action exists where city personnel maintain a park, “open to all except blacks,” under a private trust.

ENTWINEMENT OF STATE AND PRIVATE ENTITITES: The fact that a state entity helps formulate and adopts the rules of a private entity, and chooses to follow the order of the private entity pursuant to those rules, does not convert the private entity’s action into state action. However, a state may be so entwined with a private organization that the organization’s actions will be considered state action.
NOT STATE ACTION: National Collegiate Athletic Association–a voluntary association of public and private universities that establishes rules for its members regarding collegiate sports
STATE ACTION: an association that regulates high school sports within a single state: (i) to which most high schools belong; (ii) whose governing body is made up mostly of public school officials; (iii) whose meetings are held during regular school hours; (iv) whose employees may join the state retirement system; (v) which is funded by gate receipts from the regulated sport. (Brendwood Academy v. Tennessee Secondary School Athletic Association)

Question 688

Conlaw: Individual Guarantees Against Government or Private Action: Limitations on Power and State Action Requirement: State Action Requirement: Instances of Insignificant State Involvement

Answer 688

HEAVILY REGULATED BUSINESSES AND/OR GRANTING OF A MONOPOLY TO A UTILITY
Electric Company to which state granted a monopoly.
Nursing Home operated by private corporation.
School operated by a private corporation even though school had contracts with state to educate or care for many of its students and it received almost all of its operating funds from the government.

LICENSING AND PROVISION OF ESSENTIAL SERVICES
granting liquor license and providing police, fire, water, power

CONGRESSIONAL GRANT OF CORPORATE CHARTER AND EXCLUSIVE NAME

NO GOVERNMENT DUTY TO PROTECT INDIVIDUALS FROM HARM BY PRIVATE PERSONS
unless enter into an agreement or conspiracy with private persons to cause harm to another private person (Screws v. US; Dennis v. Sparks (1980))

Question 689

Conlaw: Individual Guarantees; Retroactive Legislation: Contract Clause–Impairment of Contract

Answer 689

Contract Clause prohibits STATES from enacting any law that RETROACTIVELY impairs contract rights. It does not affect contracts not yet entered into.

NOT APPLICABLE TO FEDERAL GOVERNMENT: although a flagrant contract impairment would be forbidden by the Due Process Clause of the Fifth Amendment.

ONLY APPLICABLE TO STATE LEGISLATION: not court decisions

BASIC IMPAIRMENT RULES

1. Private Contracts: prevents only SUBSTANTIAL IMPAIRMENTS of contract. However, not all substantial impairments are invalid. 3 part test:
   (i) Does the legislation substantially impair a party’s rights under an existing contract? If it does not, it is valid. If it does then it will be valid ONLY IF:
   (ii) serves an important and legitimate public interest; AND
   (iii) is a reasonable and narrowly tailored means of promoting that interest
2. Public Contracts–Stricter Scrutiny
   Same test as for private contracts, but stricter scrutiny, especially if the legislation reduces the contractual burdens on the state. When applying the 3 part test note the following:
   (i) There is no substantial impairment if the state has reserved the power to REVOKE, ALTER, OR AMEND either in the contract itself or in statute of law the terms of which should be considered to be incorporated into the contract.
   (ii) In determining whether the law serves as a legitimate public interest, note that the state cannot be obligated by contract to refrain from exercising its police powers necessary to protect health and safety of its residents; and
   (iii) To be narrowly tailored, the law should not constitute an unnecessarily broad repudiation of contract obligations.

Question 690

Crimlaw: Accomplice Liability: Intent Required

Answer 690

Person must have given aid, counsel, encouragement with the INTENT to aid, encourage the principal in the commission of the crime charged.

In the absence of a statute, most courts would hold that mere KNOWLEDGE that a crime would result from the aid provided is insufficient for accomplice liability, at least where the aid involves the sale of ordinary goods at ordinary prices.

Question 691

Conlaw: Individual Guarantees Against Government or Private Action: Procedural Due Process: What Type of Process is Required?: Welfare Benefits

Answer 691

Due process requires an EVIDENTIARY HEARING PRIOR TO TERMINATION. Need not be judicial or quasi judicial if there is adequate post-termination review; but the recipient must have timely and adequate NOTICE of the reason for the proposed termination, the right to confront adverse witnesses, and the right to present his own arguments and evidence orally. Counsel need not be provided, but must be permitted. Decision must be based solely on evidence adduced at the hearing and must be rendered by an impartial decisionmaker (thus disqualifying any participant in the termination proposal under review).

Question 692

Conlaw: Individual Guarantees Against Government or Private Action: Procedural Due Process: What Type of Process is Required?: Disability Benefits

Answer 692

NO PRIOR EVIDENTIARY HEARING IS REQUIRED for termination of disability benefits, as long as there is PRIOR NOTICE to the recipient, an opportunity to responsd in writing, and a SUBSEQUENT EVIDENTIARY HEARING (with retroactive payment if the recipient prevails). Rationale: disability benefits, unlike welfare benefits, are not based on financial need and are not vital.

Question 693

Conlaw: Individual Guarantees Against Government or Private Action: Procedural Due Process: What Type of Process is Required?: Public Employment

Answer 693

A public employee who is subject to removal only for “cause” (and who therefore has a property interest in his job) generally must be given NOTICE of charges against him that are to be the basis for his job termination, and a PRE-TERMINATION OPPORTUNITY TO RESPOND to those charges. The employee does not have to be given a full, formal hearing before his termination as long as there is a fair system of pre-termination notice, an opportunity to respond (to the person making the termination decision), and a SUBSEQUENT EVIDENTIARY HEARING regarding the termination (with reinstatement if the employee prevails). But note: if there is a SIGNIFICANT REASON for not keeping the employee on the job, he may be suspended without pay and without an opportunity to respond, as long as there is a prompt post-suspension hearing with reinstatement and back pay if the employee prevails.

Question 694

Conlaw: Individual Guarantees Against Government or Private Action: Procedural Due Process: What Type of Process is Required?: Public Education–Disciplinary Suspension

Answer 694

although no formal evidentiary hearing is required before a student may be temporarily suspended (for 10 days or less), due process usually requires NOTICE of the charges and an OPPORTUNITY TO EXPLAIN. However, if the student’s presence poses a danger to persons or property, or threatens to disrupt the academic process, such notice and hearing may FOLLOW removal as soon as practicable.

CORPORAL PUNISHMENT IN SCHOOL
This may involve constitutionally protected “liberty.” However, the traditional common law tort remedies for excessive punishment satisfy procedural due process, and a prior hearing is not required.

Question 695

Conlaw: Individual Guarantees Against Government or Private Action: Procedural Due Process: What Type of Process is Required?: Public Education–Academic Dismissal

Answer 695

NO PRIOR EVIDENTIARY HEARING IS REQUIRED when a student is dismissed for “academic” deficiencies rather than for “disciplinary” reasons. Due process is satisfied if the student is adequately informed of the deficiency and given an opportunity to respond.

Question 696

Conlaw: Individual Guarantees Against Government or Private Action: Procedural Due Process: What Type of Process is Required?: Creditor’s Remedies

Answer 696

Pretrial remedies, such as attachment of property or garnishment of wages, that are merely designed to provide a plaintiff with some guarantee that there will be assets to satisfy a judgment against the defendant if the plaintiff eventually wins the case SHOULD NOT BE ISSUED BY A COURT WITHOUT NOTICE to the defendant and a HEARING PRIOR TO THE ISSUANCE of the order.

A court may issue a temporary order of this type if:

(i) there are exigent circumstances that justify the order; and
(ii) the defendant is given a hearing after the order is issued but prior to trial.

However, laws authorizing creditors to garnish assets, or a conditional seller to seize or sequester property, will be upheld WITHOUT PRIOR NOTICE to the debtor IF:

(i) The creditor posts a security bond;
(ii) The application is made to a judge, is not conclusory, and documents narrowly confined facts susceptible of summary disposition; AND
(iii) Provision is made for an early hearing at which the creditor must show probable cause.

Question 697

Conlaw: Individual Guarantees Against Government or Private Action: Procedural Due Process: What Type of Process is Required?: Driver’s License

Answer 697

The state generally must afford a PRIOR HEARING before a driver’s license is suspended or terminated. However, a post-suspension hearing satisfies due process where a statute mandates suspension of a driver’s license for refusing to take a breathalyzer test upon arrest for drunk driving.

Question 698

Conlaw: Individual Guarantees Against Government or Private Action: Procedural Due Process: What Type of Process is Required?: Parental Status Litigation and Hearing

Answer 698

TERMINATION OF PARENTAL STATUS
Due process does NOT REQUIRE THE APPOINTMENT OF COUNSEL for indigent parents in every case in which the state seeks to terminate parental status (i.e., take children from their parents), BUT only when “fundamental fairness” requires the appointment. To terminate parental rights, the state must prove its allegations of parental neglect or misconduct by “clear and convincing evidence.”

PATERNITY ACTIONS
A state may allow paternity to be established in support proceedings brought by a mother or child by a PREPONDERANCE OF EVIDENCE.

Due process requires the state to PAY FOR BLOOD TESTS that might exculpate an indigent defendant in a paternity action fi the STATE IS RESPONSIBLE FOR THE LAWSUIT (suit is brought by state agency or state requires the mother to bring the suit).

HEARINGS FOR MEN WHO SEEK TO ESTABLISH PATERNITY
1. Unmarried Father Living with Mother
If the father of an illegitimate child is a part of a “family unit” that includes the child, the relationship between father and child will be protected by due process.
2. Father Who Never Tried to Establish Paternity
The father of an illegitimate child who has never attempted to establish a legal or personal relationship with the child has no right to notice prior to the adoption of the child by other persons.
3. Mother Married to Another Man
The Supreme Court has upheld a statute that presumed that a child born during wedlock was the husband’s child where the statute allowed an alleged biological father to have a hearing regarding the visitation rights, but the Court did not rule on whether a biological father could be denied visitation under these circumstances without a hearing.

Question 699

Conlaw: Individual Guarantees Against Government or Private Action: Procedural Due Process: What Type of Process is Required?: Detention of Citizen Enemy Combatants

Answer 699

Due Process requires that a CITIZEN HELD IN THE UNITED STATES as an “enemy combatant” have a meaningful opportunity to contest the factual basis for his detention before a neutral decisionmaker. However, due process does not forbid some tailoring of the proceedings to alleviate burdens that they may impose on Executive authority during an ongoing military conflict. This may include accepting some use of hearsay, permitting government rebuttable presumptions, and PERHAPS use of a properly authorized and constituted military tribunal

Question 700

Conlaw: Individual Guarantees Against Government or Private Action: Procedural Due Process: What Type of Process is Required?: Notice of Adversary Proceedings

Answer 700

When the government seeks to use a judicial or administrative process to take or terminate property interests, it MUST GIVE NOTICE to those persons whose property interests may be taken by that process. The form of notice must be reasonably designed to insure that those persons will in fact be notified of the proceedings.

Question 701

Conlaw: Individual Guarantees Against Government or Private Action: Procedural Due Process: What Type of Process is Required?: Civil Forfeitures

Answer 701

Procedural due process limits the governments ability to seize property allegedly subject to forfeiture (which most often occurs when the government claims that the property was connected to, or was the product of, criminal activity). Absent exception circumstances, the government must provide the owner of REAL PROPERTY notice and an opportunity for some type of hearing PRIOR to seizing real property. However, the government might be able to seize PERSONAL PROPERTY PRIOR to providing the owner a hearing, since personal property can be hidden or destroyed.

Question 702

Conlaw: Individual Guarantees Against Government or Private Action: Procedural Due Process: Due Process Rights are Subject to Waiver

Answer 702

However, Supreme Court has not clearly defined the standard for determining whether someone has validly waived the right to a hearing before government deprivation of liberty or property. Presumably, any such waiver should be voluntary and made knowingly.

Question 703

Conlaw: Individual Guarantees Against Government or Private Action: Fundamental Rights: Right of Privacy: Marriage

Answer 703

Right of a male and female to enter into (and probably dissolve) a marriage relationship is a fundamental right.

Prisoners’ Rights Cases: a statute or regulation that restricts the constitutional rights of prison inmates will be upheld as long as the statute or regulation “is reasonably related to legitimate penological interests.” (invalid where required approval of prison superintendent)

Question 704

Conlaw: Individual Guarantees Against Government or Private Action: Fundamental Rights: Right of Privacy: Abortion

Answer 704

Right to privacy includes the right of a woman to have an abortion under certain circumstances without undue interference from the state.

However, because the states have a compelling interest in protecting the health of both the woman and the fetus that may become a child, it is difficult to apply strict scrutiny since these two interests might conflict with each other.

PRE-VIABILITY RULE–NO UNDUE BURDENS
No substantial obstacles to abortion. Not necessarily a substantial obstacle to make it more difficult or more expensive to get an abortion.

• -Informed Consent–no undue burden
• -Waiting Period–no undue burden
• -Parental Consent–no undue burden
• -Spousal Consent–undue burden
• -Physician Only Requirement–no undue burden
• -Partial Birth Abortion Ban–no undue burden

POST-VIABILITY RULE–MAY PROHIBIT ABORTION UNLESS WOMAN’S HEALTH THREATENED

REMEDY: court cannot invalidate an entire statute, but must fashion a narrower declaratory and injunctive relief against the unconstitutional application.

FINANCING ABORTIONS: neither federal or state governments are required to grant medical benefit payments for abortions to indigent women, even if they grant benefits to indigent women for child birth services. A state may prohibit funding of abortions by prohibiting the use of public facilities for abortions and prohibiting pubic employee from performing or assisting with an abortion.

Question 705

Conlaw: Individual Guarantees Against Government or Private Action: Fundamental Rights: Right of Privacy: Obscene Reading Material

Answer 705

Right to privacy encompasses the right to read obscene material in your home, except for child pornography. It does not, in include the right to sell, purchase, receive, or transport obscene material.

Question 706

Conlaw: Individual Guarantees Against Government or Private Action: Fundamental Rights: Right of Privacy: Rights of Parents

Answer 706

Parents have fundamental rights to make decisions concerning the care, custody, and control of their children.

EDUCATION
Although the state may prescribe reasonable educational standards, it may NOT require that all children be educated in public schools. Neither may the state forbid education in a language other than English.

VISITATION
Violation of parents rights for court to grant a right to visit upon a finding that it would be in the best interest of a child.

Question 707

Conlaw: Individual Guarantees Against Government or Private Action: Fundamental Rights: Right of Privacy: Intimate Sexual Conduct

Answer 707

State has no legitimate interest in making it a crime for FULLY CONSENTING ADULTS to engage in PRIVATE intimate sexual conduct that is not commercial in nature.

Question 708

Conlaw: Individual Guarantees Against Government or Private Action: Fundamental Rights: Right of Privacy: Freedom from Collection and Distribution of Personal Data

Answer 708

NO RIGHT OF PRIVACY
State can accumulate and computerize the names and addresses of patients for whom dangerous drugs are prescribed.

And the state can republish an official act, such as an arrest.

Question 709

Conlaw: Individual Guarantees Against Government or Private Action: Fundamental Rights: Right to Vote: Gerrymandering and Multi-Member Districts

Answer 709

RACIAL GERRYMANDERING
Race cannot be the predominant factor in drawing the boundaries of a voting district unless the district plan can pass muster under strict scrutiny. Person challenging the reapportionment has the burden of proving the race-based motive.

POLITICAL GERRYMANDERING
The Court has NEVER ruled that a legislative redistricting map should be overturned on the basis of political gerrymandering, and a number of Justices have suggested that political gerrymandering is a nonjusticiable issue.

MULTI-MEMBER DISTRICTS
State is generally free to have some multi-member districts together with some single member districts, as long as the number of members representing a district is proportional to its population.

However, single member or multi member districts will be held to violate equal protection (even though they meet the one person, one vote principle) if the district lines were drawn on the basis of unconstitutional criteria, such as to suppress the voting power of racial minorities or an identifiable political group.

Question 710

Conlaw: Individual Guarantees Against Government or Private Action: Fundamental Rights: Right to Vote: Candidates and Campaigns

Answer 710

CANDIDATE QUALIFICATIONS

1. Fee Must Not Preclude Indigents as Candidates
2. Restrictions on Ability of Person to be a Candidate (state may require candidate to show reasonable support by signatures or votes to have name placed on ballot)
3. Required Resignation of Office is Permissible: a state may require state officials to resign their office if they enter an election for another government office.
4. Campaign Funding, Contributions, and Expenditures: state may allocate more public funds to the two “major” parties than to “minor” parties and may withhold funding from candidates who do not accept reciprocal limits on expenditures.
5. Extraordinary Majorities–Referendum Elections: government may require a supermajority vote for voter referendums, even though such a requirement might give a minority disproportionate power.
6. Replacement of Incumbent Legislators–a state may validly give to a political party the right to name an interim appointee to the legislature to fill out the unexpired term of a legislator from that party who left office.

3.

Question 711

Conlaw: First Amendment Freedoms: Freedom of Speech and Assembly: Time, Place, and Manner Restrictions–Regulation of Conduct: Limited Public Forums and Nonpublic Forums

Answer 711

Other than streets, sidewalks, and parks, most public property is considered to be a limited public forum or nonpublic forum. The government can regulate speech in such forums to RESERVE THEM FOR THEIR INTENDED USE. Regulations will be upheld if they are:

(i) VIEWPOINT NEUTRAL; and
(ii) REASONABLY RELATED TO A LEGITIMATE GOVERNMENTAL PURPOSE.

Doesn’t have to be content neutral.

SIGNIFICANT CASES

• -Military Bases (however, if military leaves its street open as thorough fares, it will be treated as a public forum)
• -Schools
• -Government Workplace or Government –Controlled Charity Drive
• -Postal Service Property (sidewalks are not public forums)
• -Signs on Public Property
• -Airport Terminals: reasonable to ban solicitation since it presents a risk of fraud to hurrying passengers; unreasonable to ban leafletting within multipurpose terminals having qualities similar to a shopping mall.
• -Candidate Debates on TV: exclusion of candidates who are not with a major party are permissible because (i) viewpoint neutral and (ii) reasonable in light of logistics
• -Mailboxes

Question 712

Conlaw: First Amendment Freedoms: Freedom of Speech and Assembly: General Principles: Content v. Conduct

Answer 712

CONTENT VS CONDUCT: a regulation seeking to forbid communication of specific ideas is less likely to be upheld than a regulation of the CONDUCT incidental to speech.

CONTENT: It is presumptively unconstitutional for the government to place burdens on speech because of its content. To justify content based regulation of speech, the government must show that the regulation (or tax) is NECESSARY to serve a COMPELLING state interest and is narrowly drawn to achieve that end.

Exception: Unprotected Categories of Speech

Content-Neutral Speech Regulations: intermediate scrutiny; will be upheld if:
(i) they advance IMPORTANT interests unrelated to the suppression of speech, and (ii) they DO NOT BURDEN SUBSTANTIALLY MORE SPEECH THAN NECESSARY to further those interests.

CONDUCT: the Court has allowed more leeway in regulating conduct related to speech, allowing it to adopt content-neutral, time, place, and manner regulations. Regulations involving public forums must be NARROWLY TAILORED to achieve IMPORTANT government interests. Regulations involving nonpublic forums must have a reasonable relationship to a legitimate regulatory purpose.

Question 713

Conlaw: First Amendment Freedoms: Freedom of Speech and Assembly: General Principles: Reasonableness of Regulations

Answer 713

REASONABLENESS OF REGULATIONS
Overbroad Regulation Invalid (prohibits substantially more speech than is necessary)

Void for Vagueness Doctrine:
A criminal law or regulation that fails to give persons reasonable notice of what is prohibited may violate the due process clause. This principle is applied strictly when first amendment rights are involved because of the potential chilling effects a vague law may have on speech. (burden on challenger)

Cannot Give Official Unfettered Discretion: a regulation cannot give braod discretion over speech issues–there must be DEFINED STANDARDS for applying the law to prevent the official from using their discretion to prohibit speech they don’t agree with. This issue usually arises with licensing schemes established to regulate the time, place, and manner of speech. To be valid, such licensing schemes must be related to an important government interest, contain procedural safeguards, and not grant official unbridled discretion.

Unlimited Discretion–Void on Face: and speaker need not even apply for a permit. They may exercise their First Amendment rights even if they could have been denied a permit under a valid law, and they may not be punished for violating the licensing statute.

Statute Valid on Face: person denied permit must use available administrative and judicial remedies or waives later argument that actions were protected by First Amendment.

Question 714

Conlaw: First Amendment Freedoms: Freedom of Speech and Assembly: General Principles: Scope of Speech

Answer 714

SCOPE OF SPEECH

Includes Freedom Not to Speak

Mandatory Financial Support of Government Speech: government may tax people and express a message with which the people disagree

No Mandatory Financial Support of Private Speech: teacher’s union dues (exception–university activity fees may support groups that student doesn’t agree with as long as program is viewpoint neutral)

State Can Require Shopping Center to Permit Persons to Exercise Speech Right (place open to the public)

Includes Symbolic Conduct: Court will uphold a regulation of conduct if: (i) the regulation is within the constitutional power of the government; (ii) it furthers an important governmental interest; (iii) the governmental interest is UNRELATED TO SUPPRESSION OF SPEECH; AND (iv) the incidental burden on speech is no greater than necessary.

Excludes Freedom to Bar Military Recruitment

PRISON SPEECH
Different standard in order to facilitate prison order: The regulation will be upheld if it is REASONABLY RELATED TO LEGITIMATE PENOLOGICAL INTERESTS.

Restriction on incoming mail will be upheld if rational.
Restriction on outgoing mail must be narrowly tailored because there is less penological interest involved.

Question 715

Conlaw: First Amendment Freedoms: Freedom of Speech and Assembly: Unprotected Speech–Regulation or Punishment Because of Content: Clear and Present Danger of Imminent Lawlessness

Answer 715

A state cannot forbid advocating the use of force or of law violation unless such advocacy

(i) is DIRECTED TO PRODUCING OR INCITING IMMINENT LAWLESS ACTION, and
(ii) IS LIKELY TO PRODUCE OR INCITE SUCH ACTION

Allows for Sanctions Against Speech causing demonstrable danger to important government interests. Disclosure of US Intelligence operations and personnel is “clearly not protected” speech.

Compelling Justification Test was employed to hold unconstitutional the Georgia’s legislature’s refusal to seat Julian Bond, an elected black representative, where Bond’s speeches, critical of US policy on Vietnam and the draft, led the legislature to doubt his fitness and his ability to take the oath of office in good faith.

Question 716

Conlaw: First Amendment Freedoms: Freedom of Speech and Assembly: Unprotected Speech–Regulation or Punishment Because of Content: Fighting Words

Answer 716

TRUE THREATS
First Amendment does not protect true threats–statements meant to communicate an intent to place an individual or group in fear of bodily harm.

STATES MAY BAN WORDS LIKELY TO INCITE PHYSICAL RETALIATION
States are free to ban fighting words, i.e., those personally abusive epithets that when addressed to the ordinary citizen are inherently likely to incite immediate physical retaliation.

This has been narrowly read, so that “Fuck the Draft” on a jacket is not fighting words because it is not directed at any person.

STATUTES REGULATING FIGHTING WORDS TEND TO BE OVERBROAD OR VAGUE: hard to put into statute exactly what constitutes fighting words.

STATUTES CANNOT BE CONTENT BASED–LIMITS HATE CRIME LEGISLATION: ordinances that applies only to those fighting words that insult or provoke violence on the basis of race, religion, or gender is invalid.

Not the same as punishing racially motivated conduct–state can increase a convicted defendant’s sentence for aggravated battery based on the fact that the defendant selected the victim because of the victim’s race. However, punishment may not be increased merely because of defendant’s abstract beliefs.

Question 717

Conlaw: First Amendment Freedoms: Freedom of Speech and Assembly: Unprotected Speech–Regulation or Punishment Because of Content: Obscenity

Answer 717

NOT PROTECTED SPEECH

Obscenity is a description or depiction of sexual conduct that, taken AS A WHOLE, by the AVERAGE PERSON, applying CONTEMPORARY COMMUNITY STANDARDS:

(i) Appeals to the PRURIENT INTEREST in sex;
(ii) Portrays sex in a PATENTLY OFFENSIVE WAY; and
(iii) DOES NOT HAVE SERIOUS LITERARY, ARTISTIC, POLITICAL, OR SCIENTIFIC VALUE–using a national, reasonable person standard, rather than the contemporary community standard.

APPEAL TO PRURIENT INTEREST
Dominant theme of material as a whole must appeal to prurient interest, which is a shameful or morbid interest in sex, but not that which incites lust which is normal.

PATENTLY OFFENSIVE
Contemporary community standards. National standard not required. State wide standard permissible but not mandatory. Juror may draw on knowledge of the community as he knows it.

LACKING IN SERIOUS SOCIAL VALUE
Some redeeming social value will not be enough–must be literary, artistic, political or scientific value.

STANDARD MAY BE DIFFERENT FOR OBSCENITY AVAILABLE TO MINORS.

PICTURES OF MINORS: government prevent the sale or distribution of VISUAL depictions of sexual conduct involving minors, even if the material would not be found obscene if it did not involve children. (simulated pictures of minors–young looking adults–government can’t ban because the government purpose is to prevent the exploitation of children)

QUESTION OF FACT AND LAW

In close cases, evidence of “pandering”–commercial exploitation for the sake of prurient appeal–by the defendant may be probative on whether the material is obscene. Such evidence may be found in the defendant’s advertising, instructions to authors and illustrators, or intended audience. In effect, this simply accepts the purveyor’s own estimation of the material as relevant.

Evidence: state need not produce expert testimony. Also, proof that other similar materials are on the newsstands does not necessarily prove that this material is not obscene.

STATUTES MAY NOT BE VAGUE
But a state statute will be upheld if the state supreme court opinion limits it to a proscription of depictions of specific types of sexual conduct.

LAND USE REGULATIONS: may limit the location or size of adult entertainment establishments if the regulation is designed to reduce the secondary effect of such businesses. However, regulations may not ban such establishments altogether.

LIQUOR REGULATION: prohibiting explicit live sexual entertainment and films in establishments licensed to sell liquor by the drink, even though proscribing some forms of visual presentation that would not be obscene do not violate First as long as they are not irrational.

DISPLAY: may be regulated so that an unwilling viewer can avoid exposure to it.

PRIVATE POSSESSION OF OBSCENITY: cannot be made a crime because of the constitutional right of personal privacy. However, the protection does not extend beyond the home. Thus, importation, distribution, and exhibition of obscene materials can be prohibited. (exception: possession of child porn)

Question 718

Conlaw: First Amendment Freedoms: Freedom of Speech and Assembly: Unprotected Speech–Regulation or Punishment Because of Content: Defamatory Speech

Answer 718

Restrictions on ability to grant recovery when person suing is a public official, public figure, or the speech involves a matter of public concern. Plaintiff must prove the elements of defamation plus FALSITY and FAULT.

FALSITY: at common law the statement was presumed to be false and the defendant had to prove it was true to avoid liability. Here, the plaintiff must prove the statement is false.

Requirement of Factual Statement: must be viewed by a reasonable person as a statement of fact, rather than a statement of opinion or a parody. Furthermore, a person cannot circumvent the First Amendment by using a different tort theory to recover, such as IIED or NIED.

FAULT
Public Official or Public Figure–Malice Required (knowledge that the statement was false or reckless disregard as to its truth or falsity)

Malice in False Quotation: proof of inaccurate quoting does not in and of itself prove malice–must show that alteration materially changed the meaning of the actual statements.

Permitted Inquiries by Plaintiff: in attempting to prove malice, the plaintiff may inquire into the state of mind of those who edit, produce, or publish.

Petition Clause Does Not Protect Defamatory Statement Made With Malice (i.e., communications with government officials)

Two Ways to Become a Public Figure:

(i) general fame or notoriety in the community and pervasive involvement in the affairs of society–although a citizen’s involvement in community and professional affairs does not render him a public figure
(ii) involvment in particular controversy–voluntarily inject himself or be drawn into a particular controversy to influence the resolution of the issues involved and thereby become a public figure for a limited range of issues.

Examples of Persons Not Deemed Public Figures

• -Spouse of wealthy person
• -person engaged in criminal conduct
• -scientist in federally funded program

PRIVATE INDIVIDUAL SUING ON MATTERS OF PUBLIC CONCERN–AT LEAST NEGLIGENCE REQUIRED
Presumed or punitive damages allowed only if malice established.

NIED and IIED yield to First Amendment rights when a matter of public concern (Snyder v. Phelps (2011))

PROCEDURAL ISSUES
Federal Summary Judgment Standard: clear and convincing evidence standard

Judicial Review: an appellate court must review a defamation case by conducting an independent review of the record to determine if the finder of fact (jury) could have found that the malice standard was met.

FALSE LIGHT: on matters of public concern, must establish falsity and actual malice (although this rule may be modified in future by court to negligence)

Question 719

Conlaw: First Amendment Freedoms: Freedom of Speech and Assembly: Unprotected Speech–Regulation or Punishment Because of Content: Some Commercial Speech

Answer 719

False advertising is not protected by First, although commercial speech does have some protection.

In determining whether a regulation of commercial speech is valid:

If the speech regulated concerns a LAWFUL ACTIVITY and is NOT MISLEADING OR FRAUDULENT, the regulation will be valid only if it:

(i) Serves a SUBSTANTIAL government interest;
(ii) DIRECTLY ADVANCES the asserted interest;
(iii) Is NARROWLY TAILORED (does not require least restrictive means, but must be a reasonable fit) to serve the substantial interest.

COMPLETE BANS against advertising: unlikely to be upheld due to lack of tailoring

• -legal abortions
• -contraceptives
• -drug prices
• -attorney’s services
• -liquor prices (21st does not give states right to override 1st)

Billboards–unclear whether they can be banned, but they can be regulated for purposes of traffic safety and aesthetics.

Blockbusting–town could not prohibit the use of outdoor “for sale” signs by owners of private homes as a way of reducing the effect of “blockbusting” real estate agents (i.e., encouraging homeowners to sell at reduced prices because of the threat of sudden influx of minorities).

REQUIRED DISCLOSURES
Commercial speech is protected largely because of its value to consumers. The government can require commercial advertisers to make certain disclosures if they are not unduly burdensome and they are reasonably related to the state’s interest in preventing deception.

SPECIAL ATTORNEY ADVERTISING RULES

• -in person solicitation
• -sending mail solicitation to accident victims and their relatives within 30 days following an accident

Question 720

Conlaw: Individual Guarantees Against Government or Private Action: Fundamental Rights: Right to Vote: Dilution of right to Vote

Answer 720

DILUTION OF RIGHT TO VOTE

1. One Person, One Vote Principle:

Equal Protection Clause has been interpreted to prohibit state dilution of the right to vote, and article I has been interpreted as putting the same restriction on the federal government.

Establishing Voting Districts: whenever the governmental body establishes voting districts for the election of representatives, the number of persons in each district may not vary significantly. This is commonly referred to the one person, one vote principle.

Congressional Elections–Must Be Almost Exactly Equal between the congressional districts within a state.

Compare Apportionment of Representatives Among the States–Congress’s good faith choice of method given more deference by Courts.

State and Local Elections–Variance Not Unjustifiably Large (but need not be within a few percentage points of each other like voting districts for federal elections.

Scope: applies to almost every election where a person is being elected to perform normal governmental functions (exceptions: (i) appointed officials and officials elected “at large”; (ii) special purpose government units (water storage))

Standardless Recount: counting uncounted ballots in a presidential election without standards to guide ballot examiners in determining the intent of the voter violates the 14th Amendment.

Question 721

Conlaw: First Amendment Freedoms: Freedom of Association and Belief: School Sponsorship of Extracurricular Clubs

Answer 721

School Sponsorship of Extracurricular Clubs: regulation that is viewpoint neutral and reasonably related to a legitimate government interest.

Question 722

Contracts: Mutual Assent–Offer and Acceptance: Termination of the Offer: Limitations on Offeror’s Power to revoke

Answer 722

4. Limitations on Offeror’s Power to Revoke
   (i) Options: an option is a distinct contract in which the offeree gives consideration for a promise by the offeror not to revoke an outstanding offer.

(ii) Merchant’s Firm Offer Under Article 2:
If a MERCHANT;
Offers to sell goods in a SIGNED WRITING; and
The writing GIVES ASSURANCES THAT IT WILL BE HELD OPEN;
The offer IS NOT REVOCABLE for lack of consideration during the time stated, or if not time is stated, for a reasonable time (but in no event may such period exceed THREE MONTHS.

(iii) Detrimental Reliance: where the offeror could reasonably expect that the offeree would rely to her detriment on the offer, and the offeree does so rely, the offer will be held IRREVOCABLE AS AN OPTION CONTRACT FOR A REASONABLE LENGTH OF TIME. At the very least, the offeree would be entitled to relief measured by the extent of any detrimental reliance.

(iv) Part Performance–True Unilateral Contract Offers
- -implied contract for a reasonable time: irrevocable once performance has begun for a reasonable period of time
- -preparations to perform don’t count to keep a unilateral contract open but may count for detrimental reliance

(v) Part Performance–Bilateral Contract
Part performance is acceptance and contract has formed.

Question 723

Contracts: Mutual Assent–Offer and Acceptance: Termination of the Offer: Termination by Offeree

Answer 723

REJECTION
Express Rejection: a statement by the offeree that she doesn’t intent to accept the offer.

Counteroffer as Rejection: a counteroffer is an offer made by the offeree to the offeror that contains the same subject matter as the original offer but differs in its terms. A counteroffer serves as a rejection of the offer AS WELL AS A NEW OFFER. 2 situations:

(i) counteroffer combined with express rejection
(ii) acceptance conditional upon additional terms

Distinguish–Mere Inquiry: the test is whether a reasonable person would believe that the original offer had been rejected.

Rejection Effective When Received By Offeror

• -revival of the offer: when the offer is rejected, the offeror may restate the same offer (some courts call revival, but really a new offer, just with same terms)
• -rejection of option: because an option is a contract to keep an offer open, a rejection or a counteroffer to an option does NOT constitute a termination of the offer (unless the offeror has detrimentally relied on the offeree’s rejection–pretty tough)

LAPSE OF TIME

Must Accept Within Specified or Reasonable Time

Look to When Offer Is Received by Offeree to determine when a specified time period will expire

Question 724

Contracts: Mutual Assent: Acceptance: Acceptance of Offer for Bilateral Contract: Mirror Image Rule

Answer 724

ACCEPTANCE MUST BE ABSOLUTE AND UNEQUIVOCAL ACCEPTANCE OF EACH AND EVERY TERM OF THE OFFER (mirror image rule)

1. Common law rule: any different or additional term in the acceptance makes the response a REJECTION AND COUNTEROFFER.

Distinguish:

(i) statements that make implicit terms explicit
(ii) grumbling acceptance
(iii) request for clarification

2. Article 2–Battle of the Forms: the proposal of additional or different terms by the offeree in a definite and timely acceptance does NOT constitute a rejection and counteroffer, but rather is EFFECTIVE AS AN ACCEPTANCE, unless the acceptance is EXPRESSLY made conditional on assent to the additional or different terms. Whether the additional or different terms become part of the contract depends on whether or not both parties are merchants.

When an acceptance is made expressly conditional on the acceptance of new terms, it is a rejection of the offer. It can be considered a counteroffer only to the extent that the original offeror may EXPRESSLY ASSENT to the new terms and thus form a contract.

3. Bilateral Contracts formed by Performance
   Sometimes in business a contract is not formed by the parties’ communications, either because: (i) the mirror image rule has not been satisfied; or (ii) in a contract for the sale of goods, the original offeror’s form contains a clause objecting in advance to any new or inconsistent terms and the offeree sends a response with new or different terms that states it is not an acceptance unless the original offeror agrees to these terms. Clearly no contract is formed at this point. But as is sometimes the case, if the parties begin to perform as if they formed a contract, a contract is formed.

At common law, the last communication sent to the party who performed is considered a counteroffer and the performance is considered an acceptance of the counteroffer.

Article 2 specifically provides that conduct by both parties that recognizes the existence of a contract is sufficient to establish the contract.

Question 725

Contracts: Mutual Assent: Acceptance: Acceptance of Offer for Bilateral Contract: When Effective–The Mailbox Rule

Answer 725

Acceptance by mail or similar means creates a contract at the MOMENT OF DISPATCH, provided that the mail is properly addressed and stamped, UNLESS:

1. the OFFER STIPULATES that acceptance is not effective until received; or
2. an OPTION CONTRACT is involved (an acceptance of an option contract is effective only upon RECEIPT

Because in most states a revocation is effective only upon receipt, under the mailbox rule if the offeree dispatches an acceptance BEFORE HE RECEIVES A REVOCATION sent by the offeror, a contract is formed. This is true even though the acceptance is dispatched after the revocation id dispatched and received after the revocation is received.

EFFECT OF OFFEREE SENDING BOTH ACCEPTANCE AND REJECTION

(i) Offeree sends rejection, then acceptance–mailbox rule doesn’t apply. Whichever one is received first is effective.
(ii) Offeree sends acceptance, then rejection–mailbox rule generally applies.

ACCEPTANCE BY UNAUTHORIZED MEANS: may still be effective if it is actually received by the offeror while the offer is still in existence.

Question 726

Contracts: Consideration: Elements of Consideration: Legal Value: Legal Benefit and Legal Detriment Theories

Answer 726

MAJORITY RULE: detriment to the promisee in performing an act or making a promise is the exclusive test of consideration

MINORITY AND FIRST RESTATEMENT: either detriment or benefit to the other party will suffice

SECOND RESTATEMENT: departs from benefit/detriment test. The only question is whether something was bargained for and given in exchange.

DETRIMENT AND BENEFIT DEFINED

1. Legal Detriment to Promisee
   Legal detriment will result if the promisee does something he is under no legal obligation to do or refrains from doing something that he has a legal right to do. (Promisor must have primarily sought to induce the detrimental act by his promise.)
2. Legal Benefit to Promisor
   A legal benefit to the promisor is simply the reverse side of legal detriment. In other words, it is a forbearance or performance of an act by the promisee which the promisor was not legally entitled to expect or demand, but which confers a benefit on the promisor.

PROMISE TO PERFORM OR THE PERFORMANCE OF A PREEXISTING LEGAL DUTY NOT CONSIDERATION

1. Exception–New or Different Consideration Promised
2. Exception–Voidable Obligation: a promise to perform a voidable obligation is ratification and is enforceable (example–infant’s ratification of contract upon reaching majority makes the contract enforceable)
3. Exception–Preexisting Duty Owed to Third Party (A and B have contract which A threatens to breach; C offers A more money to perform; A can enforce the contract against C)
4. Exception–Honest Dispute as to Duty: allows modification of agreement. The compromise is the detriment to each party.
5. Exception–Unforeseen Circumstances
   (i) make performance difficult–not a substitute for consideration
   (ii) make performance impracticable–duty discharged
6. Exception–Modification of Contract for the Sale of Goods
   (i) Common law: modification unenforceable unless it is supported by new consideration.
   (ii) Article 2: contract modifications sought in good faith are binding without consideration.
7. Existing Debts
   (i) When the amount due is undisputed, payment of a smaller sum than due will NOT be sufficient consideration for the promise by the creditor to discharge the debt.
   (ii) But courts try to avoid this outcome, so if the consideration is in any way new or different, then sufficient consideration will be found. (payment in a different medium; payment to someone other than the creditor)

Question 727

Contracts: Consideration: Elements of Consideration: Legal Value: Legal Benefit and Legal Detriment Theories

Answer 727

MAJORITY RULE: detriment to the promisee in performing an act or making a promise is the exclusive test of consideration

MINORITY AND FIRST RESTATEMENT: either detriment or benefit to the other party will suffice

SECOND RESTATEMENT: departs from benefit/detriment test. The only question is whether something was bargained for and given in exchange.

DETRIMENT AND BENEFIT DEFINED

1. Legal Detriment to Promisee
   Legal detriment will result if the promisee does something he is under no legal obligation to do or refrains from doing something that he has a legal right to do. (Promisor must have primarily sought to induce the detrimental act by his promise.)
2. Legal Benefit to Promisor
   A legal benefit to the promisor is simply the reverse side of legal detriment. In other words, it is a forbearance or performance of an act by the promisee which the promisor was not legally entitled to expect or demand, but which confers a benefit on the promisor.

PROMISE TO PERFORM OR THE PERFORMANCE OF A PREEXISTING LEGAL DUTY NOT CONSIDERATION

1. Exception–New or Different Consideration Promised
2. Exception–Voidable Obligation: a promise to perform a voidable obligation is ratification and is enforceable (example–infant’s ratification of contract upon reaching majority makes the contract enforceable)
3. Exception–Preexisting Duty Owed to Third Party (A and B have contract which A threatens to breach; C offers A more money to perform; A can enforce the contract against C)
4. Exception–Honest Dispute as to Duty: allows modification of agreement. The compromise is the detriment to each party.
5. Exception–Unforeseen Circumstances
   (i) make performance difficult–not a substitute for consideration
   (ii) make performance impracticable–duty discharged
6. Exception–Modification of Contract for the Sale of Goods
   (i) Common law: modification unenforceable unless it is supported by new consideration.
   (ii) Article 2: contract modifications sought in good faith are binding without consideration.
7. Existing Debts
   (i) When the amount due is undisputed, payment of a smaller sum than due will NOT be sufficient consideration for the promise by the creditor to discharge the debt.
   (ii) But courts try to avoid this outcome, so if the consideration is in any way new or different, then sufficient consideration will be found. (payment in a different medium; payment to someone other than the creditor)

Question 728

Contracts: Consideration: Elements of Consideration: Legal Value: Forbearance to Sue

Answer 728

The promise to refrain from suing on a claim may constitute consideration. If the claim is VALID, the forbearance to sue is sufficient consideration.

If the claim is INVALID but the claimant in good faith believes his claim is valid, the consideration is good.

Question 729

Contracts: Consideration: Elements of Consideration: Legal Value: Forbearance to Sue

Answer 729

The promise to refrain from suing on a claim may constitute consideration. If the claim is VALID, the forbearance to sue is sufficient consideration.

If the claim is INVALID but the claimant in good faith believes his claim is valid, the consideration is good.

Question 730

Contracts: Requirement that No Defenses Exist: Defenses to Formation: Absence of Mutual Assent: Unilateral Mistake

Answer 730

If only one of the parties is mistaken about facts relating to the agreement, the mistake will NOT prevent formation of a contract. However, if the nonmistaken party KNEW OR HAD REASON TO KNOW OF THE MISTAKE made by the other party, the contract is voidable by the mistaken party.

1. Unilateral Mistake May Be Canceled in Equity
   There is authority in a number of cases that contracts with errors, such as mistaken in COMPUTATION, may be canceled in equity, assuming that the nonmistaken party has NOT RELIED on the contract. There is also modern authority indicating that a unilateral mistake that is SO EXTREME that it outweigh the other party’s expectations under the agreement will be a ground for cancellation of contract.
2. Error in Judgment
   An error in judgment by one of the parties as to the value or quality of the work done or goods contracted for will NOT prevent formation of the contract, even if the nonmistaken party knows or has reason to know of the mistake made by the other party.

Question 731

Contracts: Requirement that No Defenses Exist: Defenses to Formation: Absence of Mutual Assent: Mistakes by the Intermediary (Transmission)

Answer 731

when there is a mistake in the transmissionof an offer or acceptance by an intermediary, the prevailing view is that the message AS TRANSMITTED is operative unless the other party knew or should have known of the mistake.

Question 732

Contracts: Requirement that No Defenses Exist: Defenses to Formation: Absence of Mutual Assent: Ambiguous Contract Language

Answer 732

Contract language with at least two possible meaning leads to different results depending on the awareness of the parties.

1. Neither Party Aware of Ambiguity–No Contract (unless both parties happened to intend the same meaning)
2. Both Parties Aware of Ambiguity–No Contract (unless both parties happened to intend the same meaning)
3. One Party Aware of Ambiguity–Contract (according to the intention of the party who was unaware of the ambiguity)
4. Subjective Intention of Parties Controls
   Although objective test is used in contract law generally, the latent ambiguity situation is unique in that the courts look to the subjective intention of the parties because the objective test does not work in this situation.

Question 733

Contracts: Requirement that No Defenses Exist: Defenses to Formation: Absence of Mutual Assent: Misrepresentation

Answer 733

1. Fraudulent Misrepresentation (Fraud in the Inducement)–Contract Voidable
   (i) Concealment and Nondisclosure: an action intended to prevent another from learning a fact is the equivalent of asserting that a fact doesn’t exist. If a party frustrates an investigation by the other party or falsely denies knowledge of a fact, it can be considered a misrepresentation. Nondisclosure without concealment is usually not a misrepresentation. A party is no required to tell everything he knows, but if the nondisclosure is either MATERIAL OR FRAUDULENT the contract is voidable for misrepresentation. Must have JUSTIFIABLE RELIANCE.
   (ii) Distinguish–Fraud in the Factum
   If one of the parties was tricked into giving assent to the agreement under circumstances that prevented her from appreciating the significance of her action, the agreement cannot be enforced; it is VOID. (sign contract thinking you are signing an autograph)
2. Nonfraudulent Misrepresentation–Contract Voidable if Misrepresentation was Material and Justifiably Relied Upon
3. Innocent Party May Rescind Agreement
   Need not wait until she is sued on the contract, but may take affirmative action in equity to RESCIND the agreement. The right to rescind exists even if the terms are fair or beneficial to the misled party. The right to void or rescind the contract may be lost, however, if the party so induced affirms the contract in question.
4. Remedies for Material Misrepresentation or Fraud
   Includes all remedies for breach. In a contract for sale of goods, neither rescission nor the return of the goods is inconsistent with a claim for damages.

Question 734

Contracts: Determining the Terms of the Contract: Parol Evidence Rule

Answer 734

In interpreting and enforcing a contract, questions often arise as to whether the written instrument is the complete embodiment of the parties intention. Where the parties to a contract express their agreement in a WRITING with the INTENT that it embody the final expression of their bargain (i.e., the writing is an INTEGRATION), any other expressions–written or oral–made PRIOR TO the writing as well as any oral expressions CONTEMPORANEOUS WITH the writing, are INADMISSIBLE TO VARY the terms of the writing.

The parol evidence rule is not generally regarded as a rule of evidence, but rather a rule of SUBSTANTIVE CONTRACT LAW. It is designed to carry out the apparent intention of the parties and to facilitate judicial interpretation by having a single clean source of proof (the writing) on the terms of the bargain.

Question 735

Contracts: Determining the Terms of the Contract: Parol Evidence Rule: Collateral Agreements and Naturally Omitted Terms

Answer 735

COLLATERAL AGREEMENTS DOCTRINE:
Parol evidence is often said to be admissible if the alleged parol agreement is collateral to the written obligation and does not conflict with it. This collateral agreement doctrine is hard to apply because it is conclusory.

NATURALLY OMITTED TERMS DOCTRINE:
The Restatements of Contracts include a similar concept with a more definitive approach: the naturally omitted terms doctrine. The doctrine allows evidence of terms that would naturally be omitted from the written agreement.

A term would be naturally omitted if:

1. It DOES NOT CONFLICT with the written instrument; and
2. It concerns a subject that similarly situated parties WOULD NOT ORDINARILY BE EXPECTED TO INCLUDE in the written instrument.

Question 736

Contracts: Determining the Terms of the Contract: Parol Evidence Rule: Parol Evidence Rule Not Applicable to Subsequent Modifications

Answer 736

Parol evidence can be offered to show subsequent modifications of a written contract because the parol evidence rule applies only to prior or contemporaneous negotiations.

Question 737

Contracts: Remedies: Nonmonetary under Article 2: Right to Demand Assurances

Answer 737

Actions or circumstances that increase the risk of nonperformance by the other party to the contract, but that do not clearly indicate that performance will not be forthcoming, may NOT be treated immediately as an anticipatory repudiation. Instead, if the party REASONABLY fears that the other party will not perform, he may demand assurances that the performance will be forthcoming at the proper time. Until he receives adequate assurances, he may suspend his own performance. If the proper assurances are not given within a reasonable time, he may treat the contract as repudiated. What constitutes adequate assurance depends on the facts of the case.

Question 738

Contracts: Remedies: Monetary Remedies–Damages: Compensatory Damages

Answer 738

Purpose of contract damages is to give compensation for the breach; that is, to PUT THE NONBREACHING PARTY WHERE SHE WOULD HAVE BEEN HAD THE PROMISE BEEN PERFORMED so far as money can do this.

STANDARD MEASURE OF DAMAGES–EXPECTATION DAMAGES
Sufficient damages for her to buy a substitute performance; benefit of the bargain.

RELIANCE DAMAGE MEASURE
If the plaintiff’s expectation damages will be too speculative to measure, the plaintiff may elect to recover damages based on a reliance measure rather than an expectation measure. Reliance damages award the plaintiff the cost of her performance; PUT THE PLAINTIFF IN THE POSITION SHE WOULD HAVE BEEN IN HAD THE CONTRACT NEVER BEEN FORMED.

CONSEQUENTIAL DAMAGES
Consist of losses resulting from the breach that any REASONABLE PERSON would have FORESEEN would occur from a breach at the time of entry into the contract. Note that in contracts for the sale of goods, ONLY A BUYER may recover consequential damages.

INCIDENTAL DAMAGES–CONTRACTS FOR THE SALE OF GOODS
Include expenses reasonably incurred by the –buyer in inspection, receipt, transportation, care, and custody of goods rightfully rejected and other expenses reasonably incident to the seller’s breach
–the seller in storing, shipping, returning, and reselling goods as a result of buyer’s breach.

CERTAINTY RULE
Plaintiff must prove that the losses suffered were certain in their nature and NOT SPECULATIVE. (traditionally new business profits too speculative; modern courts allow based on observing similar businesses in the area)

Question 739

Contracts: Remedies: Monetary Remedies–Damages: Liquidated Damages

Answer 739

The parties to a contract may stipulate what damages are to be paid in the event of a breach. these liquidated damages must be in an amount that is reasonable in view of the actual or anticipated harm caused by a breach.

REQUIREMENTS FOR ENFORCEMENT

1. Damages for contractual breach must have been DIFFICULT TO ESTIMATE OR ASCERTAIN AT THE TIME THE CONTRACT WAS FORMED.
2. The amount agreed on must have been a REASONABLE FORECAST of compensatory damages in the case of breach. The test for reasonableness is a comparison between the amount of damages prospectively probable at the time of contract formation and the liquid damages figure.

UCC RULE: allows a court to consider actual damages to validate a liquidated damage clause. Even if the clause was not a reasonable forecast of damages at the time of the contract formation, it will be valid if it was reasonable in the light of the subsequent actual damages.

RECOVERABLE EVEN IF NO ACTUAL DAMAGES
If one or both of the above requirements not be met, the provision fails and the plaintiff will recover only those damages that she can PROVE.

EFFECT OF ELECTING LIQUIDATED OR ACTUAL DAMAGES
Should a contract stipulate that the plaintiff may elect to recover liquidated damages set by a a clause or actual damages, the liquidated damage clause may be unenforceable. (because then becomes punitive and breach is not punishable)

Question 740

Contract: Remedies: Monetary Remedies–Damages: Contracts for Sale of Goods: Seller’s Damages

Answer 740

BUYER REFUSES TO ACCEPT GOODS OR ANTICIPATORILY BREACHES CONTRACT
Difference between:
1. contract price and market price; OR
2. contract price and resale price of the particular goods; PLUS
3. Incidental (but not consequential) damages, if any; LESS
4. expenses saved as a result of the breach.

If damages based on the difference between the contract price and market or resale price do not put the seller in as good a position as performance would have, then the seller may recover lost profits plus incidental damages.

In case of anticipatory breach, the seller’s damages are measured as of the actual time for performance, unless the suit comes to trial before performance time–then measured at the time the seller learned of the breach.

Market price: measured as of the time and at the place for DELIVERY.

Resale price (usual measure of damages): good faith, commercially reasonable sale that may be either public or private auction. In the case of a private auction, the breaching buyer must be given notice of intention to resell and notice of the sale.

Lost Profits: situations where the seller can obtain or manufacture as many goods as he can sell. Lost Volume Seller.

ACTION FOR PRICE: where the buyer has accepted the goods but not paid for them. Full contract price.

Question 741

Contracts: Rights and Duties of Third Parties to the Contract: Assignment of Rights and Delegation of Duties: What is Necessary for an Effective Assignment?

Answer 741

1. Requirement of a Writing–NOT
   A writing is usually NOT REQUIRED to have an effective assignment.
   EXCEPTIONS:
   –wage assignments;
   –assignments of an interest in land;
   –assignments of choses in action worth more than $5K
   –assignments intended as security interests under Article 9
2. Requirement of Adequate Description
3. Requirement of Present Words of Assignment (completely and immediately)
4. No Requirement of Consideration
   gratuitous assignment is effective

PARTIAL ASSIGNMENTS EFFECTIVE

ASSIGNMENTS FOR VALUE ARE IRREVOCABLE (consideration or taken for payment of a PREEXISTING debt)

GRATUITOUS ASSIGNMENTS ARE REVOCABLE: except

• -obligor has already performed
• -if a token chose (tangible claim) has been delivered
• -if assignment of simple chose (intangible claim not embodied by any token
• -estoppel

METHODS OF REVOCATION

• -death of assignor
• -bankruptcy of assignor
• -notice of revocation communicated by the assignor to either the assignee or the obligor
• -assignor takes performance directly from the obligor
• -subsequent assignment of the same right by assignor to another

Question 742

Contracts: Rights and Duties of Third Parties to the Contract: Assignment of Rights and Delegation of Duties: What are the rights and liabilities of the various parties?

Answer 742

ASSIGNEE V. OBLIGOR
As the assignee is the real party in interest, she may enforce her rights against the obligor DIRECTLY. The obligor has all the defenses that he would have had against the assignor EXCEPT for personal defenses arising after assignment.

Modification of contract by assignor and obligor AFTER the assignment:

• -no effect on rights of assignee
• -UCC: such a modification of an assigned right to payment that has not yet been fully earned by performance is effective against the assignee if made in good faith. However, the modification will cause a breach of an assignment contract that prohibits such modifications.

ASSIGNEE VS. ASSIGNOR

1. Assignor’s Warranties
   In every assignment FOR VALUE the assignor impliedly warrants that
   –he has the right to make the assignment
   –the right exists and is not subject to limitations or defenses other than those stated or apparent at the time of the assignment
   –he will do nothing to defeat or impair the assigned right
2. Obligor Incapable of Performance
   The assignor will NOT be liable to the assignee if the obligor is incapable of performing, e.g., is insolvent.
3. Rights of Sub-Assignees: do not have any rights against the original assignor (no privity)

THIRD PARTIES WITH EQUITIES IN SUBJECT MATTER OF ASSIGNMENT:

• -assignee takes subject to such rights if she has notice;
• -assignee will not be subject to them if she is a bona fide purchaser and without notice

SUCCESSIVE ASSIGNMENTS OF THE SAME RIGHTS:

1. Revocalbe: if first assignment is revocable, the second assignment will serve to revoke it
2. Irrevocable: if first assignment is irrevocable, the first assignee has priority;

Exceptions:
In certain situations, a second assignee who PAYS VALUE and takes WITHOUT NOTICE of the earlier irrevocable assignment will prevail if:
–gets the first judgment against the obligor
–gets first payment from the obligor on the assigned claim, her rights will be superior
–gets the first delivery of a token chose from the assignor, she will prevail
–obtains a novation that supersedes the obligation running to the assignor in favor of the new one running to her (assumes no knowledge of the prior assignment)
–estoppel

UCC deals with successive assignment problems by requiring filing: first to file prevails

Question 743

Crimlaw: Essential Elements of a Crime: Mental State :Malice–Common Law Murder and Arson

Answer 743

Although the intents required for the malice crimes (common law murder and arson) sound similar to specific intent, these crimes are NOT open to specific intent defenses. The common law created this special mental state category especially to deny to murder and arson the specific intent defenses. To establish malice in these cases, the prosecution need only show that the defendant recklessly disregarded an obvious or high risk that the particular harmful result would occur.

Question 744

Crimlaw: Essential Elements of a Crime: Mental State : General Intent–Awareness of Factors Constituting a Crime

Answer 744

Generally, all crimes require general intent, which is an awareness of all factors constituting the crime, i.e., the defendant must be aware that she is acting in the proscribed way and that any attendant circumstances required by the crime are present.

INFERENCE OF INTENT FROM ACT: permissible

TRANSFERRED INTENT
If a defendant intended a harmful result to a particular person or object and, in trying to carry out that intent, caused a similar harmful result to another person or object, her intent will be transferred from the intended person or object to the one actually harmed. And defenses that the defendant could have asserted against the intended victim will also be transferred.

Doctrine of transferred intent most commonly applies to homicide, battery, and arson. It does NOT apply to ATTEMPT.

MOTIVE DISTINGUISHED
Generally held that motive is immaterial to a substantive criminal law.

Question 745

Crimlaw: Inchoate Crimes: Conspiracy: Elements

Answer 745

An AGREEMENT BETWEEN TWO OR MORE persons;
An INTENT TO ENTER INTO AN AGREEMENT; and
An INTENT TO ACHIEVE THE OBJECTIVE of the agreement.

Under the traditional definition of conspiracy, the agreement itself was the culpable act. Today, a majority of states require an OVERT ACT in furtherance of the conspiracy but mere preparation will usually suffice.

Question 746

Crimlaw: Inchoate Crimes: Conspiracy: Agreement Requirement

Answer 746

The parties must agree to accomplish the same objective by mutual action. The agreement need not be express. The existence of agreement may be shown by a concert of action on the part of the conspirators over a period of time under circumstances showing that they were aware of the purpose and existence of the conspiracy and agreed to participate in the common purpose. Where multiple crimes and multiple parties are involved, there are often problems in deciding whether there is a single conspiracy or several smaller conspiracies.

OBJECT OF THE AGREEMENT
At common law, it was not necessary that there be an agreement to commit a crime in order to find a criminal conspiracy. It was only necessary that the object of the agreement was something unlawful or that the parties intended to accomplish something unlawful by unlawful means. Most states now provide that the object of the conspiracy must be SOME CRIME OR SOME FELONY.

MULTIPLE CRIMES
If there is an initial agreement among the parties to engage in a COURSE OF CRIMINAL CONDUCT constituting all the crimes, then there is only ONE CONSPIRACY.

NUMBER OF CONSPIRACIES IN MULTIPLE PARTY SITUATIONS

1. Chain Relationship–One Large Conspiracy
   Series of agreements all of which are part of a single large scheme in which all of the parties to the subagreements are interested, the situation will be regarded as one large conspiracy involving all of the participants. The subagreements will be characterized as “links” in the overall “chain” relationship.
2. Hub and Spoke Relationship–Multiple Conspiracies
   One participant can enter into a number of subagreements, each involving different persons. All of the agreements are similar in that they have one common member. However, if it is established that the subagreements are reasonable independent of each other, the situation will be regarded as involving numerous different and independent conspiracies. The common member is the hub and a member of each conspiracy. But the spokes are not members of the other conspiracies.

REQUIREMENTS OF TWO OR MORE PERSONS

Modern Trend–Unilateral approach (MPC) only one party must have genuine criminal intent (conspiracy with a police officer sufficient)

Traditional Rule–Bilateral approach: must have two guilty minds (husband and wife were one person so could not have two guilty minds) (corporation and agent one mind)

Wharton Rule
Where two or more people are necessary for the commission of the substantive offense (adultery), there is no crime of conspiracy unless more parties participate in the agreement than are necessary for the crime.

Agreement with Person in PRotected class: protected class person cannot be guilty of conspiracy.

Effect of acquittal of all other conspirators: common law–result in acquittal of last member of the conspiracy because of need of two guilty minds

Question 747

Crimlaw: Inchoate Offenses: Conspiracy: Mental State–Specific Intent

Answer 747

Conspiracy is a specific intent crime. There are two different intents that are necessary: intent to agree and intent to achieve objective.

1. Intent to Agree: very difficult to separate the intent to agree from the act of agreement. Remember that the intent to agree can be INFERRED from conduct.
2. Intent to Achieve Objective: this intent must be established as to EACH individual defendant

Intent cannot be inferred from mere knowledge (merchant who sells goods and knows they will be used to further a conspiracy) However, if the goods are a specialty item that cannot be easily obtained elsewhere, the merchant may be held to have joined the conspiracy.

Corrupt Motive Not Required: majority rule is that the parties to a conspiracy need not have been aware that their plan was an illegal one.

Question 748

Crimlaw: Inchoate Offenses: Conspiracy: Termination of Conspiracy

Answer 748

Important because acts or declarations of co-conspirators are admissible only if made in furtherance of the conspiracy. Also important for statute of limitations purposes.

ACTS OF CONCEALMENT:
Criminal attempt to conceal their crimes. Therefore, unless there was an agreement PRIOR to the commission of the crime that they would act in a certain way to conceal the crime, there cannot be a conspiracy to conceal the crime.

GOVERNMENT FRUSTRATION OF CONSPIRACY’S OBJECTIVE: does not automatically terminate the conspiracy.

Question 749

Crimlaw: Inchoate Offenses: Conspiracy: Defenses

Answer 749

FACTUAL IMPOSSIBILITY–NO DEFENSE

WITHDRAWAL–NO DEFENSE TO CONSPIRACY CHARGE (because the conspiracy is complete as soon as the agreement is made and one overt act is committed) MPC recognizes voluntary withdrawal as a defense if the defendant thwarts the success of the conspiracy

DEFENSE TO SUBSEQUENT CRIMES OF CO-CONSPIRATORS
A person may limit his liability for subequent acts of the other members of the conspiracy, including the target crime for which the conspiracy was formed, if he withdraws. To withdraw, he must perform an affirmative act that notifies all members of the conspiracy and such notice must be given in time for them to have the opportunity to abandon their plans.

Question 750

Crimlaw: Inchoate Offenses: Attempt: Elements

Answer 750

A specific intent to commit the crime; and

An overt act in furtherance of that crime.

Question 751

Crimlaw: Offenses Against the Person: Homicide: Summary–Analytical Approach

Answer 751

1. Did the defendant have any of the STATES OF MIND sufficient to constitute malice aforethought?
2. If the answer to 1 is yes, is there proof of anything that will, under any applicable statute, raise the homicide to FIRST DEGREE MURDER?
3. If the answer to 1 is yes, is there evidence to reduce the killing to VOLUNTARY MANSLAUGHTER?
4. If the answer to 1 is no, is there a sufficient basis for holding the crime to be INVOLUNTARY MANSLAUGHTER, i.e., criminal negligence or misdemeanor manslaughter?
5. Is there ADEQUATE CAUSATION between the defendant’s acts and the victim’s death? Was the defendant’s act the FACTUAL CAUSE of the death? Is there anything to break the chain of PROXIMATE CAUSATION between the defendant’s act and the victim’s death?

Question 752

Crimpro: Exclusionary Rule: Harmless Error Test

Answer 752

A conviction will not necessarily be overturned merely because improperly obtained evidence was admitted at trial; the harmless error test applies, so a conviction can be upheld if the conviction would have resulted despite the improper evidence.

On appeal, the government bears the burden of showing BEYOND A REASONABLE DOUBT that the admission was harmless.

In a habeas corpus proceeding, if a petitioner claims a constitutional error, the petitioner must be released if the error had SUBSTANTIAL AND INJURIOUS EFFECT OR INFLUENCE in determining the jury’s verdict.

If the judge is in grave doubt as to the harm, the petition must be granted.

Question 753

Crimpro: Fourth Amendment: Arrests and Other Detentions: What Constitutes a Seizure of the Person?

Answer 753

A seizure occurs when, under the TOTALITY OF THE CIRCUMSTANCES, a reasonable person would feel that he was not free to decline the officer’s requests or otherwise terminate the encounter.

Police pursuit is not a seizure in and of itself.

To constitute a seizure, the Fourth Amendment requires a PHYSICAL APPLICATION OF FORCE by the officer or a SUBMISSION to the officer’s show of force.

It is not enough that the officer merely ordered the person to stop.

Question 754

Crimpro: Fourth Amendment: Arrests and Other Detentions: Automobile Stops

Answer 754

Stopping a car is a seizure for Fourth Amendment purposes.

Police may not stop a car unless they have AT LEAST REASONABLE SUSPICION to believe that a law has been violated.

ROADBLOCKS
However, in certain cases where SPECIAL LAW ENFORCEMENT NEEDS are involved, the Court allows police to set up roadblocks to stop cars without individualized suspicion that the driver has violated some law. To be valid, it appears that such roadblocks must:

• -stop cars on the basis of some NEUTRAL, ARTICULABLE STANDARD; and
• -be designed to serve purposes CLOSELY RELATED TO A PARTICULAR PROBLEM PERTAINING TO AUTOMOBILES AND THEIR MOBILITY.

SEIZURE OF OCCUPANTS: an automobile stop constitutes a seizure, not only of the driver, but the occupants as well.

DISTINGUISH–INFORMATIONAL ROADBLOCKS
likely constitutional

POLICE MAY ORDER OCCUPANTS OUT: in the interests of officer safety; may frisk if reasonably believes armed and dangerous; may search passenger compartment to look for weapons even if occupants out of car.

PRETEXTUAL STOPS: do not violate 4th

Question 755

Crimpro: Fourth Amendment: Arrests and Other Detentions

Answer 755

DETENTIONS TO OBTAIN A WARRANT: If the police have probable cause to belief that a suspect has hidden drugs in his house, they may, for a reasonable time, prohibit him from going into the house unaccompanied so that they can prevent him from destroying the drugs while they obtain a search warrant.

OCCUPANTS OF PREMISES BEING SEARCHED MAY BE DETAINED
Pursuant to the execution of a VALID WARRANT to search for contraband, the police may detain occupants of the premises while a proper search is conducted.

STATION HOUSE DETENTION
Police officers must have FULL PROBABLE CAUSE for arrest to bring a suspect to the station house against the suspect’s will for questioning.

Question 756

Crimpro: Fourth Amendment: Evidentiary Search and Seizure: Legitimate Expectation of Privacy: Things Held Out to Public

Answer 756

THINGS HELD OUT TO THE PUBLIC

Generally–No Expectation of Privacy

• -sound of one’s voice
• -one’s handwriting
• -paint on the outside of a car
• -account records held by a bank
• -an automobile’s movement on public roads and arrival at a private residence even if detection of such movement requires the use of an electronic beeper place on the car by the police
• -magazines offered for sale

Compare–squeezing luggage is a search

Dog Sniffs at Traffic Stops
As long as the police have LAWFULLY STOPPED a car and DO NOT EXTEND THE STOP beyond the time necessary to issue a ticket and conduct ordinary inquiries incident to such a stop, a dog sniff does not implicate the 4th Amendment.

Open Fields Doctrine
Areas outside the curtilage are subject to police entry and search.
Court will consider a building’s distance from the house and whether they building was enclosed within a fence with the house.

Fly-Overs: allowed to observe with the naked eye

Vehicle Identification Numbers: police may reach into an automobile to move paper to observe the auto’s vehicle identification number.

Question 757

Crimpro: Fourth Amendment: Evidentiary Search and Seizure: Searches Conducted Pursuant to a Warrant: Showing of a Probable Cause

Answer 757

A warrant will be issued only if there is probable cause to believe that seizable evidence will be found on the premises or person to be searched. The officers requesting the warrant must submit to the magistrate an affidavit containing sufficient facts and circumstances to enable the magistrate to make an independent evaluation of probable cause.

May Be Anticipatory (reason to believe there will be evidence on the date the warrant will be executed rather than on the date the warrant issued.

Use of Informers–Totality of Circumstances Test
Affidavit need not contain any particular fact about the informer as long as it included enough information to allow the magistrate to make a common sense evaluation of probable cause.

Reliability, Credibility, and Basis of Knowledge–relevant, but not prerequisites.

Informer’s Identity–need not be revealed

Going Behind the Face of the Affidavit:
When a defendant attacks the validity of a search warrant, the 4th Amendment permits her to contest the validity of some of the assertions in the affidavit upon which the warrant was issued.

Three Requirements to Invalidate a Search Warrant

1. A FALSE STATEMENT was included in the affidavit by the affiant;
2. The affiant INTENTIONALLY OR RECKLESSLY included that false statement;
3. The false statement was MATERIAL to the finding of probable cause.

Evidence May Be Admissible Even Though the Warrant Not Supported by Probable Cause
–evidence obtained by police in REASONABLE RELIANCE on a facially valid warrant may be used by the prosecution, despite an ultimate finding that the warrant was not supported by probable cause.

Question 758

Crimpro: Fourth Amendment: Evidentiary Search and Seizure: Searches Conducted Pursuant to a Warrant: Warrant Must Be Precise on its Face

Answer 758

The warrant must describe with reasonable precision the PLACE TO BE SEARCHED and the ITEMS TO BE SEIZED. If it does not, the warrant is unconstitutional, even if the underlying affidavit gives such detail.

Question 759

Crimpro: Fourth Amendment: Evidentiary Search and Seizure: Searches Conducted Pursuant to a Warrant: Search of Third Party Premises Permissible

Answer 759

As long as there is probable cause to believe evidence of someone’s guilt (or something else subject to seizure) will be found.

example: search of a newspaper office

Question 760

Crimpro: Fourth Amendment: Evidentiary Search and Seizure: Searches Conducted Pursuant to a Warrant: Execution of Warrant

Answer 760

1. Must Be Executed by Police
   - -when executing a warrant in a home, the police may not be accompanied by a member of the media or any other third party unless the person is there to help with the seizure, such as by identifying the articles to be seized
2. Execution Without Unreasonable Delay
   - -because probable cause may disappear
3. Knock and Announce Requirement
   - -Sufficiency of Delay before using force: 15-20 seconds if officers concerned about destruction of evidence.
   - -No knock if DANGEROUS OR FUTILE or INHIBIT THE INVESTIGATION
   - -Exclusionary rule not applied to knock and announce violations.

Question 761

Crimpro: Fourth Amendment: Evidentiary Search and Seizure: Searches Conducted Pursuant to a Warrant: Other Issues

Answer 761

Scope of Search: limited to what is reasonably necessary to discover the items described in the warrant.

Seizure of Unspecified Property allowed

Search of Persons Found on the Premises: –not authorized
–if probable cause to arrest person discovered on premises, then can search incident to the arrest

Detention of Occupants: limited authorization

Question 762

Crimpro: Fourth Amendment: Evidentiary Search and Seizure: Exceptions to the Warrant Requirement: Search Incident to Lawful Arrest

Answer 762

The police may conduct a warrantless search incident to an arrest as long as it was made on probable cause.

Constitutional Arrest Requirement: if an arrest violates the Constitution, then any search incident to that arrest will violate the Constitution.

Any Arrest Sufficient: even if the arrest is invalid under state law, as long as it is constitutionally valid

Issuance of Traffic Citation–Insufficient Basis if person is not arrested

Geographic Scope:

• -the person and areas within his wingspan
• -if person allowed to enter house, then police may follow and search areas within the arrestee’s wingspan within the house
• -police may make a protective sweep of the area beyond the wingspan if they believe accomplices may be present
• -automobiles may be searched after arrest if at the time of the search
  (i) the arrestee is unsecured and still may gain access to the interior fo the vehicle
  (ii) the police reasonably believe that evidence of the offense for which the person was arrested may be found in the vehicle

Must Be Contemporaneous With Arrest In Time and Place
–automobiles: contemporaneous does not mean simultaneous–if police believe the car contains evidence of the crime for which the arrest was made, they may search the interior of the automobile even if arrestee has been placed in squad car, as long as he was a recent occupant of the car.

Search Incident to Incarceration or Impoundment
–may search car–including closed containers within the vehicle that have been impounded

Question 763

Crimpro: Fourth Amendment: Evidentiary Search and Seizure: Exceptions to the Warrant Requirement: Automobile Exception

Answer 763

If the police have PROBABLE CAUSE to believe that a vehicle such as an automobile contains contraband or fruits, instrumentalities, or evidence of a crime, they may search the vehicle without a warrant.

Rationale: automobiles are mobile and won’t likely be around by the time the officer returns with a warrant.

Scope of Search:

• -entire vehicle
• -trunk
• -all containers that MIGHT CONTAIN THE OBJECT for which they are searching
• -passenger’s belongings
• -limited probable cause–if police only have probable cause to search a container recently put in the car, then they may search the container, but not the other parts of the car

Motor Homes: automobile exception extends to motor homes if they are not at a fixed site.

Question 764

Crimpro: Fourth Amendment: Evidentiary Search and Seizure: Exceptions to the Warrant Requirement: Plain View

Answer 764

Police may make a warrantless seizure when they:

1. Are LEGITIMATELY ON THE PREMISES;
2. Discover EVIDENCE, FRUITS OR INSTRUMENTALITIES of crimes, or CONTRABAND;
3. See such evidence in PLAIN VIEW; and
4. HAVE PROBABLE CAUSE to believe that the item is evidence, contraband, or a fruit or instrumentality of crime.

Question 765

Crimpro: Fourth Amendment: Evidentiary Search and Seizure: Exceptions to the Warrant Requirement: Consent

Answer 765

The police may conduct a valid warrantless search if they have a VOLUNTARY consent to do so. Knowledge of the right to withhold consent, while a factor to be considered, is not a prerequisite to establishing a voluntary consent.

Authority to Consent
Any person with an APPARENT EQUAL RIGHT TO USE OR OCCUPY the property may consent to a search, and any evidence found may be used against the other owners or occupants.

Limitation–Where Party is Present and Objects: police may not act even if co-occupant consents

Parents and Children:

Parent generally has authority to consent to a search of a child’s room (even of an adult child) as long as the parent has access to the room, but depending on the child’s age may not have authority to consent to a search of locked containers within the child’s room.

Child consenting to search is a question of whether it is reasonable that the child had such authority.

• -14 year old had authority to let police into father’s hotel room with father present
• -even a very young child has authority to consent to a search of the common areas of a home or her own room

Scope of Search: limited by the scope of the consent. However, consent extends to all areas to which a reasonable person under the circumstances would believe it extends.

Question 766

Crimpro: Fourth Amendment: Evidentiary Search and Seizure: Exceptions to the Warrant Requirement: Stop and Frisk

Answer 766

A police officer may STOP a person without probable cause for arrest if she has an articulable and REASONABLE SUSPICION of criminal activity. In such circumstances, if the officer also REASONABLY BELIEVES that the person may be ARMED AND PRESENTLY DANGEROUS, she may conduct a protective FRISK.

Scope of Intrusion
–Generally limited to Patdown of Outer Clothing
But officer may reach directly into an area of the suspect’s clothing, such as his belt, without a preliminary frisk, when she has specific information that a weapon is hidden there, even if the information comes from an informant’s tip lacking sufficient reliability to support a warrant.

Automobiles
If auto has been properly stopped for a traffic violation, the police may order the driver out of the vehicle without even a suspicion of criminal activity. If the officer then reasonably believes that the driver or any passenger may be armed and dangerous, she may conduct a frisk of the suspected person. Moreover, the police may search the vehicle, even if the officer has NOT ARRESTED the occupant and ordered the occupant out of teh vehicle, provided the search is LIMITED TO THOSE AREAS IN WHICH A WEAPON MAY BE PLACED or hidden and the officer possesses a reasonable belief that the occupant is dangerous.

Identification May be Required
As long as the police have reasonable suspicion required to make a Terry Stop, they may require the detained person to identify himself and the detainee may be arrested for failure to comply with such a requirement, except perhaps, where the detainee may make a self-incrimination claim.

Time Limit
No rigid time for length of investigative stop. The Court will consider the purpose of the stop, the reasonableness of the time in effectuating the purpose and the reasonableness of the means of investigation to determine whether a stop was too long.

Admissibility of evidence: officer may reach into the suspect’s clothing and seize any item that the officer reasonably believes, based on PLAIN FEEL is a WEAPON OR CONTRABAND. Properly seized items are admissible as evidence against the suspect.

Question 767

Crimpro: Fourth Amendment: Evidentiary Search and Seizure: Exceptions to the Warrant Requirement: Hot Pursuit, Evanescent Evidence, and Other Emergencies

Answer 767

Hot Pursuit Exception
Police Officers in hot pursuit of a FLEEING FELON may make a warrantless search and seizure.
Scope of search may be as broad as may reasonably be necessary to prevent the suspect from resisting or escaping.
When the police have probable cause and attempt to make a warrantless search in a public place, they may pursue the suspect into private dwellings.

Evanescent Evidence Exception
Police may seize without a warrant evidence likely to disappear before a warrant can be obtained, such as a blood sample containing alcohol.

Emergency Aid Exception

Question 768

Evidence: Relevance: Exclusion of Relevant Evidence for Public Policy Reasons: Payment of Medical Expenses Not Admissible

Answer 768

Evidence that a party paid or offered to pay the injured party’s medical expenses is NOT ADMISSIBLE TO PROVE LIABILITY for the injury. This rule is based upon the concern that such payment might be prompted solely by humanitarian motives.

However, unlike the situation with compromise negotiations, ADMISSIONS OF FACT accompanying offers to pay medical expenses ARE ADMISSIBLE.

Question 769

Evidence: Relevance: Character Evidence: generally concerned about what?

Answer 769

Three major concerns:

(i) the purpose for which the evidence of character is offered;
(ii) the method to be used to prove character;
(iii) the kind of case, civil or criminal.

Question 770

Evidence: Documentary Evidence: Authentication: Self-Authenticating Documents

Answer 770

1. Certified copies of PUBLIC RECORDS;
2. OFFICIAL PUBLICATIONS (books, pamphlets, or other publications purporting to be issued by a public authority)
3. Printed materials purporting to be NEWSPAPERS OR PERIODICALS.
4. TRADE INSCRIPTIONS, signs, tags, or labels purporting to have been affixed in the course of business and indicating ownership, control, or origin.
5. DOCUMENTS ACCOMPANIED BY A CERTIFICATE OF ACKNOWLEDGEMENT executed in the manner provided by law by a notary public or other officer authorized by law to take acknowledgments
6. COMMERCIAL PAPER, signatures thereon, and documents relating thereto, to the extent provided by general commercial law
7. BUSINESS RECORDS certified as such by a custodian or other qualified person

Question 771

Evidence: Documentary Evidence: Best Evidence Rule: Functions of Court and Jury

Answer 771

It is for the court to make the determination of fact that determine the admissibility of duplicates, other copies, and oral testimony as to the contents of an original.

Jury determines:

1. whether the original ever existed
2. whether a writing, recording, or photograph produced at trial is an original
3. whether the evidence offered correctly reflects the contents of the original

Question 772

Evidence: Testimonial Evidence: Form of Examination of Witness: Use of Memoranda by Witness

Answer 772

A witness cannot read her testimony from a prepared memorandum. However, a memorandum may be used in certain circumstances to refresh the recollection of the witness, to substitute for the witness’s forgotten testimony upon authentication of the memorandum, or in cross examination of the witness.

PRESENT RECOLLECTION REVIVED–REFRESHING RECOLLECTION
A witness may use any writing or thing for the purpose of refreshing recollection. She usually may not read from the writing while she actually testifies, since the writing is NOT AUTHENTICATED, is NOT IN EVIDENCE, and may be used solely to refresh her recollection. The writing is intended to help her to recall by jogging her memory. The sworn testimony must demonstrate a PRESENT recollection.

PAST RECOLLECTION RECORDED–RECORDED RECOLLECTION
The writing itself may be read into evidence if a proper foundation is laid for its admissibility. The use of a memorandum as evidence of a past recollection is frequently classified as an EXCEPTION TO THE HEARSAY RULE.

The foundation for receipt of the writing into evidence must include proof that:

1. the witness at one time had PERSONAL KNOWLEDGE of the facts recited in the writing
2. the writing was MADE BY THE WITNESS or made UNDER HER DIRECTION or that it was ADOPTED BY THE WITNESS
3. the writing was TIMELY MADE when the matter was fresh in the mind of the witness
4. the writing is ACCURATE; AND
5. the witness has INSUFFICIENT RECOLLECTION to testify fully and accurately.

INSPECTION AND USE of refreshed recollection writing IN CROSS EXAMINATION
Adverse party entitled to have the writing produced at trial, to inspect it, to cross examine the witness thereon, and to introduce into evidence those portions that relate to the witness’s testimony.

Question 773

Evidence: Testimonial Evidence: Opinion Testimony by Expert Witness: Requirements of Expert Testimony: Witness Must be Qualified as an Expert

Answer 773

To testify as an expert, a person must have special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimonyy relates.

Question 774

Evidence: Testimonial Evidence: Opinion Testimony by Expert Witness: Requirements of Expert Testimony

Answer 774

1. Subject Matter Must Be Appropriate for Expert Testimony
2. Witness Must Be Qualified as an Expert
3. Expert Must Possess Reasonable Probability Regarding His Opinion
4. Opinion Must be Supported by Proper Factual Basis

Question 775

Evidence: Testimonial Evidence: Opinion Testimony by Expert Witness: Requirements of Expert Testimony: Opinion Must Be Supported by Proper Factual Basis

Answer 775

The expert’s opinion may be based upon one or more of these 3 possible sources of information:

1. facts that the expert knows from his own observation
2. facts presented in evidence at the trial and submitted to the expert, usually by hypothetical question
3. facts not in evidence that were reasonably supplied to the expert out of court, and which are of a type reasonably relied on by experts in the particular field in forming opinions on the subject (must not disclose the facts if they are inadmissible otherwise)

Question 776

Evidence: Testimonial Evidence: Opinion Testimony by Expert Witness: Opinion May Embrace Ultimate Issue

Answer 776

Exception: Criminal Defendant’s Mental State

where the defendant’s mental state constitutes an element of the crime or defense.

Question 777

Evidence: Testimonial Evidence: Opinion Testimony by Expert Witness: Authoritative Texts and Treatises

Answer 777

An expert may be cross-examined concerning statements contained in any scientific publication, as long as the publication is established as reliable authority.

A publication may be established as reliable by:

1. the direct testimony or cross-examination admission of the expert;
2. the testimony of another expert; or
3. judicial notice.

Question 778

Hearsay definition

Answer 778

A statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

Hearsay within hearsay is admissible only if both the outer hearsay and the inner hearsay fall within an exception to the hearsay rule.

Question 779

Evidence: Hearsay Rule: Statements that are Nonhearsay under the Federal Rules: Admissions by Party Opponent: Vicarious Admissions

Answer 779

Co-parties
Admissions of a party are NOT RECEIVABLE AGAINST HER CO-PLAINTIFFS OR CO-DEFENDANTS merely because they happen to be joined as parties to the action.

Authorized Spokesperson: authorized by a party to speak on its behalf

Principal-Agent: within the scope of her agency, made during the existence of the employment relationship

Partners: within the scope of the partnership business

Co-Conspirators: made to a third party in FURTHERANCE OF A CONSPIRACY TO COMMIT A CRIME OR CIVIL WRONG

Privies in Title and Joint Tenants–State Courts Only

Preliminary Determination of Agency or Conspiracy–Court must Consider Contents of Hearsay Statement

Question 780

Evidence: Hearsay Rule: Hearsay Exceptions–Declarant Unavailable: list 5

Answer 780

Certain kinds of hearsay are considered to have special guarantees of trustworthiness and are recognized exceptions to the hearsay exception:

Former testimony

Statements Against Interest

Dying Declarations–Statements Under Belief of Impending Death

Statements of Personal or Family History

Statements Offered Against Party Procuring Declarant’s Unavailability

Question 781

Property: Estates in Land: Rule against Restraints on Alienation: Fee Simple

Answer 781

ANY TOTAL RESTRAINTS–VOID

PARTIAL RESTRAINTS
Reasonable Restraints Doctrine
A restraint for a reasonable time and for a reasonable purpose may be upheld.

Discriminatory Restraints
Restraints prohibiting the transfer or use of property to or by a person of a specified racial, religious, or ethnic group is NOT ENFORCEABLE. (14th Amendment; Fair Housing Act)