Short Rules Flashcards
Corporations, CP, Con Law;
Agency
Agency (Formation)
Exists when a principal authorizes an agent to act on their behalf. The agent works for the principal’s benefit, and is subject to the principal’s control.
Agency
Principal Liability for Agent Contracts
Agent’s actions bind the principal when acting under actual or apparent authority
Agency
Actual Authority
Actual authority can be Express or Implied. Express is authorized by the principal. Implied is when the agent reasonably believes they have authority; as necessary; by custom; or prior dealings.
Agency
Apparent Authority
A third party reasonably relies on the appearance of authority; of the agent; to bind the principal.
Agency
Ratification
The Principal subsequently approves the agent’s actions; accepting liability.
Agency
Principal Liability for Agent Torts
Respondeat Superior
Independent Contractors
Intentional Torts
Agency
Principal Liability for Agent Torts
Respondeat Superior
The principal is vicariously liable when the agent is within the course and scope of duties, on behalf the principal.
Agency
Principal Liability for Agent Torts
Independent Contractors
The Principal is not liable, other than for ultrahazardous activities and nondelegable duties.
Agency
Principal Liability for Agent Torts
Intentional Torts
For authorized actions; as a natural result of duties; for the benefit of the principal.
Partnership
General Partnership
Formed when two or more parties agree to conduct business for profit. No state filing is required.
General Partnership
Rights and Duties
Unless otherwise stated in an agreement; general partners have equal rights to manage the ordinary affairs of the business; and to share profits (and losses).
General Partnership
Agent
Each partner is an agent for the partnership; with authority to bind the parntership
General Partnership
Relations with Third Parties
[Debts and Contracts]
Debts: Partners are personally liable for the debts of the partnership.
Contracts: Unless otherwise stated in an agreement; each partner is an agent for the partnership; with authority to bind the partnership.
Partnership
Liability
All partners are jointly and severally liable for all contracts; and, for torts within the course and scope of the partnership.
Partnership
New Partners Liability
New partners are not liable for debts prior to joining the partnership; however, any money paid into the parntership, may be used to satisfy such debts.
Partnership liability
Outgoing partners
Outgoing partners remain liable for debts, barring release; or novation.
Partnership Dissociation, Dissolution, & Winding Up
Dissociation
Dissociation may be voluntary, or involuntary; and the partnership must buy out the dissociated partner. Dissociation terminates a partnership if there are only two partners.
Partnership Dissociation, Dissolution, & Winding Up
Dissolution
Dissolution occurs when a partnership stops being active; and the business is wound up.
Partnership Dissociation, Dissolution, & Winding Up
Winding Up
Winding up is the process of paying off creditors; partners who have loaned money to the partnership; capital contributions of partners; and distribution of profits, and surplus, among the partners.
Partnership
Limited Liability Partnership
LLP forms when the statement of qualificationis filed with the secretary of state to notify 3p their sources for loss recovery is limited. Annual reports must be filed.
Partnership
Limited Partners
Two or more persons (at least 1 general and 1 limited), file a limited partnership certificate with the secretary of state. General partners are liable for partnership obligations, limited partners are liable only up to their capital contributions ( usually not liable for partnership debts).
Corporations
Corporations
A corporation is a legal entity that exists separate from its owners, thus sheilding owners and managers from personal liability.
Corporations
Promoter
Prior to formation of a corporation, a promoter engages in activities to bring the corporation into existence.
Corporations: Promoter
Liability
The promoter is jointly and severally liable for pre-incorporation contracts; unless there is clear and convincing evidence by prior agreement; or a novation. An adoption does not relieve the promoter of liability.
Corporations : Promoter
Corporate Liability for Preincorporation k
Corporation is not liable for preincorporation contracts unless it adopts the contract by resolution of the BOD, or impliedly adopts by accepting the benefits of the contract.
The promoter may have a right of reimbursement by quasi contract for the value of the benefit received by the corp.
Corporation: Promoter
Duties
Promoter has a duty of good faith and fair dealing.
Corporation Formation
De Jure
De Jure is a properly formed corporation by filing the Articles of Incorporation with the Secretary of State. (# authorized shares; purpose; addresses; incorporater name).
Corporation Formation
De Facto Corporation
De facto is an improperly formed corporation and will shield shareholders from personal liability if there was a good faith, yet unsuccessful attempt to incorporate, and the corporation was unaware it was not properly formed.
Corporation Formation
Corp by Estoppel
A reasonable belief that a corporation exists; or incorrectly holding out a business as a corporation prevents one from denying corporate status.
Corporation Procedure
Fundamental Corporate Changes
Approval for fundamental corporate change requires the board to adopt a resolution, written notice to shareholders, shareholder approval by quorum, and changes in the articles filed with the state.
Types of:
1) Merger;
2) Sale of substantially all assets
3) Amendments to articles
4) Dissolution and winding up
Corporation Procedure
Ultra Vires Act
Under the Ultra Vires Act (UVA), a corporation can’t be obligated to enter into a contract or activity that is outside the scope of its powers in the AOI or bylaws ( or activities unrelated to achieving the stated business purpose).
CL: EVAs are void and unenforceable.
Modernly: UVAS are valid if 3p believed agent had apparent authority. Corp can sue responsible D&O r for the losses, or seek an injunction.
Corporation
Piercing the Corporate Veil
Shareholders are not liable for corporate debts unless under the totality of the circumstances, limited liability is unfair. (Abuse of corporate Status). PCV is used to reach the assets of the shareholder. The court may PCV of a closely held corporation (LLP/LP) for the following: Alter ego; Undercapitalization; Fraud; Tortious Conduct.
You are not going to PCV of a major, multi-naitional corporation, that is not going to happen
Corporation PCV
Alter Ego
Courts will PCV if shareholders are using the corporate status for personal reasons and the corporation does not have the funds to pay creditors, or corporate formalities were ignored
The S/H failure to respect the corporate entity must adversly affect the 3ps ability to recover from the corporation
Corporation PCV
Undercapitalization
Undercapitalization is determined by looking at whether the corporation has adequate funds to cover potential liabilities at the time of formation.
Corporation PCV
Fraud
A prima facie case for fraud requires knowingly making a false representation of material fact; intended to; with justifiable reliance that causes damages
Corporation PCV
Tort v Contract
The corporate veil is easily pierced in tort cases, but not contract cases since parties who contract with the corporation have an opportunity to investigate its stability.
Liability for breach of fiduciary duties
A [partnership/Corporation/ minority shareholder] may maintain an action against [partner/ director/ officers/ controlling shareholder] for the violation of a duty to the company and recoup any loss.
Duties
Duty of Loyalty
requires:
avoiding a COI;
Usurping corporate opportunity;
Unfair competition;
Must disclose matieral information relevant to corp.
Duties
Duty of Loyalty
Defense
Ratification:
Director must disclose material information and the board can independently ratify by: a majority of disinterested directors; disinterested shareholders; or the contract is fair itself.
Duties
Duty of Care
The duty of care requires directors to act in good faith and in the best interests of the corporation, using the care exercised by a reasonably prudent person in a like position.
Duties: Duty of Care
Business Judgment Rule
A court will not second guess a business decision if it was informed, had a rational basis, made in good faith and without a conflict of interest. In making decisions, directors are entitled to rely on the opinions and reports of other directors, corporate officers, employees and outside experts making reports within their competence.
Shareholders
Direct Suit
Direct suit awards go to the shareholder.
A direct suit is for the breach of fiduciary duty owed to the shareholder.
Shareholders
Derivative Suit
Derivative suit awards go to the corporation. Derivative suits are brough on behalf o fthe corporation. (must own stock (have Standing)); adequately represent the corporation; make a demand to the directors to bring suit; unless doing so would be futile.
Shareholders
Voting Agreements
No limit on duration. Must be in writing; signed by all parties; and is generally non revocable.
Shareholders
Voting Trusts
Limited to ten years; ownership of the shares tranferred to the trust; trust agreement provided to the secretary of the corporation.
Shareholder
Controlling Shareholder Duties
Major shareholders have enough voting strength to substantially impact the corporation. They owe a fiduciary duty to the corporation; and the duties of care, and loyalty, to minority shareholders.
Shareholders
Watered Stock
Stock issued at a price greater than market value.
If corp issued a “par value” stock, then the stock must have the value assigned to it.
Instead of paying a $20k salary, company issues $60k of stock, a 40k bonus to the employee. The stock they hold is “watered down,” recipient may be liable for the difference.
Corporations / Partnerships
Equitable Subordination
Deep Rock Doctrine
Third party creditors of an insolvent corporation are paid prior to shareholder creditors. This is due to the parent corporation’s failure to properly capitalize the subsidiary.
Federal Securities
1b(b) Short Swing Profits
The purpose of 16b is to prevent the unfair use of inside information and internal manipulation of price. Because ___ shares were traded on the national stock exchange, the federal securities laws apply to this transaction.
Any profit realized by the: director; officer; or shareholder owning more than 10% of the shares of the corporation from any subsequent purchase and sale or vice versa; within a 6 month period or less must be returned to the corporation.
The recoverable profits are determined by matching the highest sale price against the lowest purchase price during any 6-month period.
This is strict liability, thus no defense. The remedy is either disgorgement of profits or constructive trust.
Federal Securities Law
10(b) Insider Trading
Insider trading provides liability for any person trading securties based on non-public corporate information.
Reliance is presumed in a nondisclosure case, such as the case here, in which [insider] did not disclose information on which he was trading.
Federal Securities Law
10(b)5 Direct Trading
“Insiders; Constructive Insiders, Controlling S/H”
Insiders are deemed to owe a duty of trust and confidence to the corporation. Typical insiders are directors, officers, controlling shareholders, and employees of the issuer.
Constructive insiders are the securities’ issuer’s CPAs, attorneys, adn bankers performing services for the issuers. Constructive insiders also owe a duty. An insider has a duty to disclose information to the public or abstain from trading.
Controlling Shareholder: treated as an “insider” for SEC 10b-5. Controlling shareholder must refrain from obtaining a special advantage or causing corporation to prejudice minority shareholder. Causing disadvantage to minority shareholders is a breach of fiduciary duty.
Federal Securities Law
Tipper
Provides Information
Duty of trust and confidence is breached when insider gives a tip of material nonpublic info and receives a personal benefit (gift, money, reputational gain) and the inside info is traded on.
Fedural Securities Law
Tippee
Receives Information.
A tippee may be liable only if the tipper breached a duty and the tippee knew that the tipper was breaching.
Federal Securities Law
Misappropriator
Obtains inside information from other means such as from a parent/child relationship, atty/client, banker/client, etc unless recipient can prove that he had no reason to know the info was confidential.
Federal Securities law
Fraud (misrepresentation)
Intentionally misrepresented an untrue statment of material fact in order to induce reliance and cause injury.
Punitive damages under state law claim of misrep
Federal Securities Law
10b Remedy
Seller/Buyer seeks disgorgement, contructive trust, or recission.
Insider trading Sanctions: civil penalties: The SEC may pursue persons for 10b violations for a civil pentalty up to 3x the profit gained, lost or avoided.
Criminal Penalties: penalties include jail terms of up to 10 years and criminal fines of up to 1 million for individuals and 2.5 for corporations.
Civil Procedure
Courts to Hear a case
Courts must have personal jurisdiction over the parties; subject matter jurisdiction over the law and facts; be held in proper venue, and defendant(s) must be served with proper notice.
PJ
Personal Jurisdiction
Jurisdiction over the parties, specifically the defendant.
Considered waived if not challenged along with answer or in party’s first 12(b)(6) motion.
PJ
Did the Court properly grant the Motion to Dismiss based on Lack of PJ?
A motion to dismiss on jurisdictional issues is proper when, viewing the facts in the most favorable light to the defendant, the plaintiff has failed to satisfy the elements of personal jurisdiction. Failure to object to personal jurisdiction before answering or in a party’s first 12(b)(6) motion waives the issue.
PJ
Traditional Bases
(Individuals, Corporations)
Traditionally, PJ could only be exercised if the Defendant consented to sit in the forum, was served in the forum(But not by force or fraud), domiciled in the forum, or made a general appearance waiving PJ.
Corporations: all states where incorporated; and the corporation’s principle place of business ( Where corporate managers direct and control business - its “Nerve center”)
Unincorporated (partnership) is where each partner resides.
PJ
Long Arm Statute
Allows the court to exercise PJ over an out of state defendant.
[where the tort happened, contract entered into, advertising, etc]
To comport with due process, D must have minimum contacts so that the exercise of PJ will not offend traditional notions of fair play and substantial justice.
Long arm statute is assessed through contacts; relatedness; and fairness.
PJ - Long Arm Statute
Minimum Contacts
D purposefully availed themselves of the benefits and protections of the state; and could reasonably expect to be haled into court there.
Additional:
(i) places goods into the stream of commerce and (ii) purposefully targets that state (e.g., advertises there). Mere knowledge their product being sold in a certain market is not to meet the minimum contacts standard.
PJ - Long Arm Statute
Relatedness of Contacts
The court will look at the quality and nature of the contacts.
Supreme court overruled the systematic and continuous contacts rule for general jurisdiction.
Specific Jurisdiction exists when the cause of action airses from or related to the D’s in-state activity. JX is over the claim only.
. (subsidiary is inc. & ppb in different place than corp. keep it separate).
PJ – Long Arm Statute
Fairness
only applies to specific JX
To determine whether JX is fair courts weigh:
(1) the convenience to the parties
(2) location of evidence and witnesses
(3) state’s interest in providing redress for citizens
(4) whether the court’s exercise of jx would be so unfair as to offend traditional notions of fair play and substantial justice.
SMJ
Did the fed court properly deny [party’s] motion for remand?
Removal
Removal - state to federal court
Only a defendant may remove if: 1) the federal court has SMJ; 2) all defendants agree; 3) no defendant is a resident of the forum state (only if Jx is based on diversity); 4) removal is sought within 30 days of either service of the summons or receiving the initial pleading (whichever is shorter).
A plaintiff may never remove, and a case cannot be removed more than one year after commencement in a diversity action. If a plaintiff files the case in a state court, a defendant must remove it to the federal district court that embraces that state court.
SMJ
Remand
After Removal
A court may remand a case back to state court when removal is improper. To remand, a plaintiff must file a motion for remand within 30 days of removal when remand is based on procedural grounds. A plaintiff or the court may remand at any time when the court lacks subject matter jurisdiction.
Here, the motion for remand is based on [lack of subject matter jurisdiction/ procedural grounds]. It [is/ is not] timely because [facts].
Thus, the court [should/should not] remand the case back to state court.
SMJ
Subject Matter Jurisdiction
SMJ is never waivable and may be raised even on appeal.
Jurisdiction over law and facts.
Federal courts are courts of limited jurisdiction. A case must be brought by Federal Question; or Diveristy.
SMJ
Federal Question
Federal question jurisdiction requires that plaintiff’s well-pleaded complaint set forth a cause of action that arises under federal law (US Constitution, immigration, bankruptcy, maritime, copyright, treaty).
SMJ
Diversity
Complete diversity exists when no plaintiffs share citizenship with any defendant the moment the claim is filed.
SMJ Diversity
Citizenship
for diversity JX
Citizenship:
Individual: domiciled which is physical presence and intent to remain.
Corporation: every state or country where incorporated, & state of Principal Place of Business. PPB is where corporate managers control & direct business - “nerve center”
Unincorporated Entity (“partnership”): where each partner is domiciled.
SMJ - Diversity
Amount in Controversy
AIC must exceed 75k exclusive of interest and costs.
SMJ - Diversity
Aggregation
AIC
A single plaintiff may aggregate all claims against a single Defendant.
Single plaintiff may aggregate claims against joint defendants where they arose from same liabilities (indemnity, contribution).
Where 2 plaintiffs have an undivided ownership interest and have a claim against 1 defendant. ( No seperate and distinct claims against 1 D).
SJ
Supplemental Jurisdiction
The fed court may hear additional state court claims when they arise under the same transaction or occurrence (common nucleus of operative fact). Even if the court would not have otherwise hear the claim for lack of SMJ.
Claims not meeting the AIC requirement may invoke supplemental jurisdiction if they arise from the same nucleus of operative facts as a claim that invoke diversity jurisdiction.
Discretion: Supplemental jurisdiction is discretionary. The court may decline to exercise the jurisdiction where:
State laws raise complex or novel issues; or State law claims predominate over the federal claims.
Venue
Venue
Venue is proper in any district where:
a) any defendant resides (if all defendants are residents of the forum state);
b) where a substantial portion of the claim occurred (i.e. contract entered into, tort occured)
**c) **where a substantial part of the subject/ property is located; or
d) if none of the above apply, then venue is proper in any judicial district where any defendant is subject to PJ ( but still need to satisfy diversity).
In CA venue is proper in the county the property resides or the county defendant resides
Proper venue is determined when the suit is filed; subsequent change of domicile by a party does not warrant a change in venue
Venue
Transfer of Venue
A court may transfer a case to another court where the case could have been filed if that court has personal jurisdiction over the defendant - which is considered proper venue.
Where OG venue is improper the FRCP must dismiss or in the interests of justice, transfer to proper venue where the case may be properly brought.
CA, venue can be changed at judges discretion where interests of jusitce and convenience of parties would be benefited by trnasfer - it would go to proper county.
Civil Procedure : Proper Notice
Proper Notice
Service of Process
Notification to the defendant of the pending action; and, a copy of the complaint; allowing the defendant an opportunity to be heard. Service may be made by personal service; substitute service; constructive service (registered mail); or as authorized by law.
Civil Procedure: Proper notice
Personal Service
Service of Process
Personal service is delivered directly to the D. Service may be by anyone, at least 18 years old, who is not a party to the action. (atty are normally not party to action).
Civil Procedure: Proper notice
Substitute Service
Service of Process
Substitute service can be left at the D’s usual abode; served upon anyone of suitable age and discretion who resides there; served to D’s authorized agent; or as permitted by state law.
CA: substitute service is only allowed if personal service cannot be accomplished with reasonable diligence; substitute service.
Civil Procedure: Proper notice
Constructive Service
Service of Process
Constructive service is made by registered mail, but only if the D agrees to waive service.
CA: by publication, if nothing else works; P must provide affidavit; after reasonable diligence to serve notice.
Civil Procedure: Proper notice
Foreign Country Service
Service of Process
Service as the court directs; or, in accordance with the laws of the foreign jurisdiction.
Civ Pro: Diversity
Choice of Law in Diversity Actions
Erie Doctrine
Fed Case under diversity
A federal case under diversity, the court will apply its own federal procedural laws but must apply state substantive laws.
However, a federal procedural rule will not be applied in diversity cases when its effect would toll the statute of limitations.
The goal is to prevent “forum shopping.” If there are multiple states each with some relation to the controversy, the court will identify which state substantive law by following the conflict of law principles from the state hearing the action.
If unclear whether procedural or substantive, Courts will apply:
Substantive issues affecting state law: elements of a claim or defense; choice of law; statute of limitations and; tolling rules.
Procedural issues subject to federal law: venue rules; notice of service/process; right to jury trial etc.
Civ Pro
Pleadings
Fed courts use “notice pleading;” a short and plain statement of the claim; and a demand for the relief sought.
In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent and knowledge may be alleged generally.
California uses “fact pleading,” a party must state with particularity their claim; and a demand for the relief sought.
Civ pro : Discovery
Discovery
A party may obtain all non-privileged information relevant to any party’s claim or defense and proportional to the needs of the case.
No discovery may be served until (i.e. interrogatories or notice of depo) until after the pretrial conference has occurred – if served early, the party is entitled to a protective order from the court until after the pretrial conference.
Civ pro : Discovery
Spoilation - Duty to Preserve
An adverse inference instruction(discovery sanctions) should be ordered where destruction of discoverable information is willful.
Civ pro : Discovery
Request for Physical or Mental Examination
Requires a court order upon showing of good cause. Must be related to the claim, and requested in good faith.
Civ pro : Discovery
Scope of Discovery
Aparty may discover anything that is non-privileged, not attorney work product, and **reasonably calculated to lead to the discovery of admissible evidence. **
Something is reasonably calculated to lead to the discovery of admissible evidence if it may lead to evidence regarding a relevant claim or defense.
CA - must be relevant to the subject matter in the action
Civ pro : Discovery
Privileged Information
When a party withholds information based on privilege or attorney work-product, the party must expressly state the claim or privilege and describe the materials or communications not produced in a manner to enable other parties to assess the applicability of the privilege or protection.
Civ pro : Discovery
Interrogatories
Interrogatories are limited to 26 without leave of court or opposing party stipulation. Cannot be served prior to the 26(f) conference; aka meet and confer conference.
Parties have 30 days to respond. If an answer is inadequate, the party may move for determination of sufficiency of response. A denial must be specific with reasonable effort to discover the truth.
CA permits an unlimited number of form rogs and a maximum of 35 specific rogs unless a court allows for additional specific rogs after the party seeking the additional rogs files a Declaration of Additional Discovery explaining the need for additional rogs.
Civ pro : Discovery
Request to Produce Documents
A party may request production of material items, documents, and things relevant to litigation from another party (notice) and non-parties(with subpoena) for information in the responding party’s control, possession or custody. They may also request entry onto land from a party.
Civ Pro: Discovery
Motion to Compel
Enforcement
For total or partial failure of discovery, a court will grant a motion to compel discovery when the request for discovery has been properly made and the parties made a good faith effort to meet and confer.
Rule 11: Atty certifies to the best of their knowledge and belief after a reasonable inquiry under the circumstances that the paper is not for an improper purpose, legal contents are warranted, allegations have evidentiary support
Sanctions: court may inpose sanctions for rule 11 violations. Motion for sanctions must be served on offending party and gives 21 days (safe harbor) to correct the offending paper before filing the motion with the court.
Civ Pro
Motion for Summary Judgment
Summary judgment is granted if there is no genuine issue as to any material fact. It may be filed any time until 30 days after the close of discovery. Both claim and issue preclusion can be used to establish no genuine material issues of fact exists, such that summary judgment is appropriate. Additionally, if issue preclusion does not justify the granting of a total summary judgment, a court may grant partial summary judgment as to that particular issue or permit additional time to prove up other necessary facts.
Most questions test these issues through a motion for summary judgment so quickly put in the rule for motion for summary judgement before getting into issue and claim preclusion if the moving party moved for summary judgment based on preclusion.
Civ Pro: Preclusion
Claim Preclusion
Res Judicata
Claim Preclusion ( res Judicata)
Precludes parties in an action from re-litigating any claim that was or could have been raised in that action.
For claim preclusion to apply, the same two parties from a prior judgment on the merits must be in a second proceeding, in which one party is seeking to relitigate a claim litigated at the first proceeding or one that should have been made at that proceeding.
1) Parties are identical or in privity;
2) Case 1 ended in a valid final judgment on the merits. (41(b)) All judgments are on the merits unless based on jurisdiction, venue, or indispensable parties. . a decision pending appeal is on the merits.
3) The claimant asserted the same claim in both cases. The claim arises out of the same transaction or occurrence.
In Ca, all appeals must be exhausted. A dismissal with prejudice equals a final judgment on the merits. If the plaintiff wins, then the new case is merged, if the defendant wins the new case is barred. The claim arises out of the Same Primary Right (which allows a separate cause of action for the invasion of each primary right. P may sue separately for personal injuries and property damages.)
Civ Pro: Preclusion
Issue Preclusion
Collateral Estoppel
Collateral estoppel is narrower than claim preclusion because it does not preclude the whole claim necessarily, just the same issue. A party can be estopped from litigating an issue that was litigated at an earlier proceeding if issue preclusion applies which requires the following elements:
1) a valid final judgment on the merits of the prior proceeding;
2) issue sought to be estopped was actually litigated; 3) issue was essential to the judgment and
4) must be used against a party in the first case 5)The party against whom enforcement is sought had a similar motive and opportunity to defend the claim in the prior action.
CP
General Presumptions
CA is a CP state. All property acquired, while domiciled in CA, during marriage by income or earnings of either spouse are presumed to be community property (“CP”) All property acquired: before marriage or after separation are presumed Separate property (“SP”). In addition, any property acquired by gift, devise, or bequest or descent is SP.
At divorce, the community assets are divided equally; unless a rule requires otherwise an agreement.
CP
Asset Characterization
Asset Characterization as com prop or sep prop depends on item’s source, parties’ actions that may alter the character, and statutory presumptions affecting an item.
CP
Legal Marriage
- If essay states the couple is “married” or legally married” assume the marriage is valid
A legal Marriage is (1) a civil contract between two individuals (2) who consent to be married, (3) seek a marriage license, and (4) have that license solemnized by a qualified official. Both opposite and same sex couples can marry. When a couple marries they form a marital economic community subject to CP rules.
Registered domestic partners register with the Secretary of State’s Office. The partners must not be married or registered to anyone else, not related by blood and capable of giving consent. When they register their domestic partnership they form a marital economic community.
CP
Quasi-CP
Facts that property is acquired outside the state.
Quasi-community property (“QCP”) is property acquired in a state other than CA, by either spouse that would have been CP if the spouse had been domiciled in California at the time of acquisition. QCP is treated as SP during marraige, but treated as CP at divorce or death.
CP
Marital Economic Community
The MEC begins upon marriage, and ends at (1) divorce, (2) a spouse’s death, or (3) the date of separation, and the CP presumption takes effect. To terminate the MEC by separation, there must be intent not to resume the relationship communicated to the other spouse.
Here, [when MEC began] and [when MEC ended] filing for dissolution of marriage is intent.
Thus, the length of marriage is
Cp
Premarital Agreement
Parties may agree that each party’s earnings will remain SP so long as the agreement was entered into voluntarily. An agreement made after January 1, 2002 must be in writing, signed by both parties, voluntary and not signed under duress, fraud, undue influence and had capacity.
In addition, the parties must be represented by independent counsel or advised to seek independent counsel and expressly waived representation in a separating writing. If the party expressly waived representation then they must not have less than 7 days between the time they first were presented the final draft of the prenup and the time they signed, and they must be informed of their rights and obligations under the prenup. A court will not enforce a premarital agreement if it promotes divorce.
CP
Unconscionable Prenup
A premarital agreement is unconscionable if it (1) was unconscionable when made, (2) did not provide full, reasonable, and fair disclosure of the other party’s property or financial obligations, (3) the right to disclosure was not waived in writing, and (4) the party challenging it lacked adequate knowledge of the other party’s property or financial circumstances.
*** it would be unconscionable if the spouse quits their job to be a homemaker AND is required to waive spousal support.
CP
Source Tracing
For commingled property (presumed CP), proponent of SP has burden of proving what is SP. To determine the character of any asset, courts will trace back to the source of funds used to acquire the asset; a mere changing in form of an asset does not change its characterization.
Two tracing methods are used when CP funds are commingled with SP funds: (1) exhaustion and (2) direct. If it becomes impossible to trace the source of the property or funds in a commingled asset, the whole will be treated as community property.
CP Source Tracing
Commingled Property Tracing Method
Exhaustion
The SP proponent must show that CP expenses exceeded CP funds. Therefore the item must have been purchased with SP funds. Available CP funds are presumed to pay for family expenses. Absent a reimbursement agreement, a gift is presumed when SP funds are used to pay family expenses.
CP Source Tracing
Commingled Property Tracing Method
Direct Tracing
See’s compliant Records
A spouse may recover SP if the spouse can identify with see-compliant records that the item was purchased with SP funds. See compliant records must show (1) that SP funds were available and used at the time of the transaction (2) that when the item was purchased the SP property owner disclosed this to the other spouse, (3) the SP owner intended the item to be SP (5) a written declaration extrinsic from bank records .—bank records by themselves are insufficient.
CP
Transmutations
A transmutation occurs where one spouse changes the status of property from CP to SP or vice versa. Transmutations must be a writing which expressly states a change in ownership is being made and consented to by the spouse whose interest is being adversely affected.
However, the formalities need not be adhered to for a gift that is personal in nature and of relatively insubstantial value, taking into account the circumstances of the marriage.
CP
Putative Spouse
If a marriage is void or voidable, the party who believed in good faith the marriage was valid, is a putative spouse. Property acquired during that period is QMP and treated as CP.
CP
Fiduciary Duty and Presumption of Undue Influence
In transactions between themselves, spouses are subject to the fiduciary rules that govern confidential relationships. The confidential relationships of spouses imposes a duty of the highest good faith and fair dealing on each spouse. A rebuttable presumption of undue influence arises when one spouse gains an advantage over the other in a property transaction. The spouse who obtained the advantage bears the burden of rebutting the presumption. Thus, if a disadvantaged party contests a transmutation or other interspousal transaction, the advantaged party bears the burden of proving that the disadvantaged party freely and voluntarily consummated the transaction, with full knowledge of all the facts and complete understanding of the effect of the transaction.
CP
Debt
Generally, spouses have equal management and control over all CP. Each spouse may contract for debts without the other spouse’s joinder or consent.
A debt is incurred at the time a contract is made.
Creditors may reach community property to satisfy debts incurred before or during marriage.
However, a non-debtor spouse’s earnings (generally CP) are protected if (1) the debt occurred before the marriage; and (2) the earnings were held in a separate account to which the debtor did not have access and no commingling occurred.
The non-debtor spouse’s SP can be reached for debts incurred during the marriage if the debtor spouse’s SP and all CP funds have been exhausted.
CP Debt
Debt satisfaction from SP Interests
Creditors can see funds from the debtor spouses SP first, then CP.
CP Debt
Post-Separation Debt
Debts acquired after permanent separation are SP and the debtor spouse will be liable to his creditors for such debt.
CP Debt
Exception to the Post-Separation Debt
When CP may be reached
Spouses can be liable for the debts of one another pre-divorce if the debt is for a necessity of life. A spouse is entitled to reimbursement if they expend SP for necessaries of the other spouse and CP was available or the debtor spouse had available SP.
The debt [was/was not] for a necessary of life because [facts + reasoning].
Thus, [non-debtor spouse] [is/is not] entitled to reimbursement.
CP Debt
Tort Debt Liability
A cause of action against a spouse is first satisfied from the tortfeasor’s SP and then the CP so long as the tort was not for the benefit of the community. In addition, the debt would likely be assigned to the debtor spouse upon dissolution.
CP Debt
Fiduciary Duty to Disclose Debt
A managing spouse must fully disclose all material facts regarding debts for which the community may be liable and provide equal access to all information upon request. A non-managing spouse has a claim against the managing spouse for any breach of fiduciary duty that impairs the non-managing spouse’s present undivided one-half interest in the community estate. Remedies include a greater share of CP.
Here [managing spouse] [did/ did not] disclose material facts regarding [debt] and [did/ did not] provide equal access to information upon request because [facts].
Thus, [managing spouse] [did / did not] breach their fiduciary duty. [spouse][may/may not] be entitled to a larger portion of the community property.
CP Debt
Assignment of Debt at Divorce
Even though the CP and debtor spouse’s SP are liable for [Hank’s gambling debt], the debt has not been paid off. At divorce, the court must assign the outstanding debt without offset to [spouse] as his/her separate debt because, although it was incurred during marriage, t was not incurred for the benefit of the community.
CP
Presumption Inferred By Title
Jointly Titled Property
Unless otherwise agreed that property is SP(in collateral written agreement), jointly titled property is presumed CP upon death or divorce; regardless if paid for with SP funds.
Divorce: Any SP used to purchase title is entitled to reimbursement of FMV at time of purchase.
Death: Any SP used is presumed a gift to the community and no reimbursement.
CP Debt
Injury/ Damage caused by Spouse to 3p
If for the benefit of the community: CP first, the SP of tortfeasor spouse
Not for benefit of community: SP tortfeasor spouse first, then CP.
CP
SP Real Property
Acquired before marriage
When a property is purchased before marriage, and community funds make the remaining loan payments during marriage, the community is allocated a pro tanto share of the separate property home’s value.
Courts use Moore/ Marsden to calculate.
CP
Moore / Marsden
Calculation
SP Real Property Acquired Before Marraige
The Moore formula applies when the home is purchased near to the date of marriage. If the separate property is owned for a considerable period of time before marriage then Marsden applies. The proportion interests are calculated by determining the separate and community contributions to the principle balance of the mortgage. Then using Community contribution divided by the OG purchase price of home to determine the community’s pro tanto interest as a percentage of the total house value. Next calculate the appreciation that will be divided by the pro tant interest. Under Marsden, this will only be the appreciation that occurred between the marriage and the date of separation; under Moore it will be from the date of purchase until the date of separation. Finally, calculate the total amount due to the community by adding the community contributions to the community’s share of appreciation.
Capital contribution = down payment and improvements
The ratio between the capital contribution to the purchase price.
HOUSE: 3 things reimbursed: downpayment, principal reduction and improvements. Must say that the “community gets pro tanto share”.
CP
COMMUNITY BUSINESS
A C business is one started during marriage or with CP funds.
. The earnings of a spouse’s business and the goodwill of the business during marriage are also CP. The Pereira and Van Camp methods of accounting apply only when community labor is used to enhance the value of SP business. In this case, because the business was not SP, the Pereira and Van Camp methods do not apply. In this case each have a right to one-half value of the business. In addition to the tangible assets of the business, the value of the business includes W’s goodwill.
CP
GoodWill
Community Business
To the extent a business develops during marriage, there is CP interest in the goodwill ( intangible value based on expected future business or reputation that generates income beyond a spouse’s labor ).
Courts use Two valuation techniques to calculate goodwill: (1) Market sales valuation (price the goodwill commands on a sale of the business or professional practice) or (2) capitalization of past excess earnings (present value of a future stream of income that the spouse’s goodwill developed during marriage. that will generate in the business. net gross earnings minus compensation and excess profits left over is the value.
CP
SP Business
Community Labor enhancing Value
When community labor is used to enhance the value of a separate property business, the community is entitled to share in the increased value of the SP. A court uses either the periera or Van Camp formula to calculate business value.
(spouse who contributed labor does not need to be the same spouse that owns the business. Ie. Wife own sp restaurant and husband manages. There is community interest in husbands labor.)
CP
SP Business, CP Labor Enhancing Value
Periera
(Reasonable Rate of Return)
Pereira recognizes that community labor(including personal character, energy and capacity of spouse) helped the business grow, which entitles the community to some, but not all, of the profits- those profits are labeled excess profits.
The owner spouse receives the original SP investment + the reasonable rate of return (10%) multiplied by the years worked. The rest of the value is CP. Therefore, if any increase in the value of the business is primarily attributed to ___’s labor, pereira should be applied, and __’s separate property investment should receive a fair rate of return of the business deemed CP.
CP
SP Business, CP Labor Enhancing Value
Van Camp
(Market Forces)
VAN CAMP, recognizes that the community labor did not help the business become successful; the profits are not directly related to the spouse’s efforts. The SP business owner reimburses the community for any nominal labor it may have contributed to the business. Basically, CP is awarded reasonable salary minus CP expenses, and SP gets the balance.
Thus, if H’s labor was not the principal reason for any growth in the value of the business, Van camp should be applied. Under Van Camp, the business is H’s SP on the theory that the community has already received compensation through H’s salary drawn from the business.
CP
Spouse’s Education
Education is not treated as divisible property. Instead, at divorce there is an equitable right of reimbursement with interest to the community when: (1) community property was used to pay for the education costs, (2) the earning capacity of the educated spouse was substantially enhanced, and (3) the married parties did not contractually waive their right of reimbursement.
Reimbursement may be reduced or modified if the community has already substantially benefited from the education/training. There is a rebuttable presumption that if fewer than 10 years has elapsed between the contributions and divorce, then the community has not substantially benefited.
CP
Severance Pay
SEVERANCE PAY
Courts are split of severance pay. Courts which treat severance pay as SP do so because they believe the severance pay replaces future wages which would have been received.
CP
DISABILITY PAY AND WORKER’S COMPENSATION BENEFITS
DISABILITY PAY AND WORKER’S COMPENSATION BENEFITS
are either CP or SP depending on the wages they are designed to replace. To the extent disability benefits are taken in lieu of retirement benefits, disability benefits are treated as retirement benefits.
cp
Life Insurance
A spouse cannot make a testamentary gift or dispose of more than ½ CP without consent of the other spouse. If spouse does then the other spouse may rescind the change. For a whole life insurance policy that has current cash value, (at divorce) is apportioned according to percent of premiums paid by each estate (CP/SP).
Death: The person named as a beneficiary on life insurance will receive the policy.
CP
At Death
Amount the surviving spouse receives is based on whether there was a will or not. Death of a married person terminates the CP character of any of his property but the form of title controls. By will, decedent may dispose of his half CP interest + all SP. SS is entitled to her half of CP. Intestate, SS of intestate decedent is entitled to all CP + at least 1/3 interest of SP, depending on # of issue and parents.
Con Law
Federal Court case or Controversy Requirement
Justiciability
Actual dispute, ripe, not moot.
Federal courts are limited to deciding actual cases or controversies. A matter is ripe when there is an actual or immediate threat of harm. If the dispute has resolved, it has become moot, and the court will not hear it, barring special circumstances.
Con Law
Standing
Individual
An individual must have an actual injury; caused by the defendant; which would be satisfied by a favorable decision (redressability).
Con Law
Standing
Organization
An organization can sue for its own injury, or on behalf of members; if a member has standing; interests related to organizational purpose and is not required to participate.
Con Law
State Action
To violate the constitution, there must be government involvement.
However, state action may exist when: a private person carries on activities that are traditionally performed exclusively by the state (elections, parks, prisons); or there are sufficient mutual contacts between the conduct of the private party and the government.
Con Law
If a fundamental right is denied to everyone apply
Substantive Due process
Con Law
If a fundamental right is violated for a particular individual apply…
Procedural due process and equal protection
Con law
If a fundamental right is denied to some people but not others apply
Equal protection
(but also apply due process)
Con Law
What Amendments does State Action apply?
If a plaintiff sues under the 1st, 14th, or 15th Amendment (e.g. free speech, due process, equal protection, or voting rights) then plaintiff must show state action .
Con Law
Fundamental Rights
- marriage,
- living with one’s family,
- child rearing,
- domestic travel,
- voting, and
- first amendment rights.
-Privacy which includes: - Marriage
- Access to contraceptives
- Ability to read obscene material at home (no kid porn)
- Keeping extended family together
- Right of parents to make decisions re kids care, custody, control
- Intimate sexual conduct
- Refuse medical treatment
Family to live in common household
Con Law
Commerce Clause
Congressional Regulation of Commerce.
Congress regulates Channels, Instrumentalities and people, and activities which have a substantial effect (in the aggregate) on interstate commerce.
Con Law
Supremacy Clause
As it applies to regulating commerce
Conflicting Federal v. State Regulation
The states power to regulate commerce is held concurrently with the federal government’s commerce power. If an activity is largely one of local concern, the state may regulate it in the absence of the Congress indicating intent to preempt the field.
Con Law
Dormant Commerce Clause
If a [city/ state] law affects commerce but does not conflict with a provision of federal law, it is valid if it does not discriminate against or unduly burden interstate commerce.
Usually raises privileges and Immunities clause and EP
Con Law: Dormant Commerce Clause
Discrimination Against Out of State Commerce
DCC restricts states from regulating activity affecting interstate commerce if the law is Discriminatory, or Unduly Burdensome
A state discriminates against out of state commerce when it protects local interests at the expense of interstate commerce.
If the regulation is discriminatory on its face then it is per se invalid.
If the regulation is facially neutral but clearly protectionist in purpose or effect, then it is also discriminatory. Such discrimination is unconstitutional unless an exception applies.
Thus, the statute discriminated against out-pf-state competition. For the statute to be valid, the state had to establish the statute furthered an important noneconomic state interest, and there were no reasonable nondiscriminatory alternatives.
Con Law: Dormant Commerce Clause
Important State Interest & No Reasonable Discriminatory Alternatives
Discriminatory state or local law may be valid if it furthers an important, noneconomic state interest and there are no reasonable alternatives.
Thus, if [plaintiff] established reasonable nondiscriminatory alternatives, the statute was invalid unless [State government] acted as a market participant.
Con Law: Dormant Commerce Clause
Exception to discriminatory Law:
Market Participant
When the state is not acting as a regulator, but rather owns or operates a business, it may favor local interests over nonlocal interests. (i.e. favoring own citizens in giving subsidies, govt’ hiring, govt’ purchasing, state universities giving in-state tuition discounts.).
***might still violate privileges and immunities clause
Con Law: Dormant Commerce Clause
Unduly Burdensome
DCC restricts states from regulating activity affecting interstate commerce if the law is Discriminatory, or Unduly Burdensome
Unconstitutional when the burden on interstate commerce is clearly excessive to the benefits of the state.
To evaluate whether the burden outweighs the local interest, a court will consider whether less restrictive alternatives exist.
Con Law
Conflict Preemption
Supremacy Clause
where state law conflict with valid federal law.
Also, where state law impedes objective of federal law.
If a federal law preempts state law, the state law is invalid.
Con Law
Field Preemption
Supremacy Clause
If a federal law preempts state law, the state law is invalid. Preemption may be express or implied.
where congress has evidenced intent to occupy an entire field, such as FAA, bankruptcy, immigration
In fields traditionally within the power of the state- such as health, safety, and welfare-there is a presumption that preemption was not intended unless preemption was a clear and manifest purpose of congress.
Con Law
Taxing Power
Congress
Most taxes will be upheld when they bear some reasonable relationship to revenue production or if Congress has the power to regulate the activity being taxed. Whether something is a tax or a regulation depends on its function. (i.e. does the charge seek to bring money into the federal coffers or is it merely labeled a tax but is truly a regulation).
i.e. taxing power w/ commerce clause is fedl tax on airline ticket.
*MBE tip: general welfare as an answer choice is usually correct only in questions regarding taxing, spending, or Congress’s limited police power (military, indian reservations, land, DC).
Con Law
Spending Power
Congress
*MBE tip: general welfare as an answer choice is usually correct only in questions regarding taxing, spending, or Congress’s limited police power (military, indian reservations, land, DC).
Spending may be for any public purpose. Congress may condition states’ receipt of federal funds so long as that condition is related to the purpose for which funds are granted.
Essay approach:
Spending Power; Tenth Amendment; Commandeering; Improper Delegation
Con Law
10th Amendment
Reserved to the States
Reserves to the states or the people all powers not delegated to the federal government by the Constitution. Under the 10th Amendment, the federal government may not commandeer the states to act or enforce its laws; however, the federal government may impose regulations that apply equally to both private and state actors.
Applicable to spending or taxing clause. Consider Commandeering.
Con Law
Commandeering
(Req. state to administer Fed Regulatory programs)
Commandeering - (Req. state to administer Fed Regulatory programs)
While congress cannot commandeer state legislatures to enact specific legislation or administer federal regulatory programs, it may encourage state action through the use of its taxing and spending powers.
(eg. congress can condition federal highway funds on the state’s requiring a minimum drinking age of 21).
The conditional grants** cannot be unduly coercive** and must **meet the limitations of the spending clause. **
The Supreme Court has held that a federal statute requiring states to either regulate radioactive waste or take title to it is beyond Congress’ power.
Con Law
Contracts Clause
Congress
The contracts clause says states or local governments may not impair existing contracts. It does not apply to the federal government or future contracts.
For private contracts, if the state’s actions substantially impair a private contract, the law must be** reasonable and appropriate to serve a significant and legitimate public purpose.**
For public contracts, the states’ action must be necessary to serve and important public purpose.
Con Law
Privileges & Immunities Clause
Congress
States discriminates against nonresidents
Does not apply to corporations.
The privileges and immunities clause provides that the citizens of each state shall be entitled to the privileged and immunities of citizens of several states.
Prohibits a state from discriminating against citizens of other states when discrimination involves commercial activities or fundamental rights unless the government has a substantial justification(nonresidents cause or contribute to the problem and no less restrictive means).
*usually raises dormant commerce clause
Con Law
State Taxation/Regulation of Federal Government
(1) State cannot directly tax federal government
(2) State cannot directly regulate federal government
(3) State may tax federal employee and contractor salaries (indirect tax).
Con Law
Legislative Power
Congress
Congress has limited enumerated powers granted by the constitution. Thus there must be a source of power for any congressional action. The Constitution grants certain powers to congress, but Congress may also make laws that are necessary and Proper to carry on or execute the powers granted to any other branch of the federal government as well as to implement its own power.
Here, Laws regulating [activity] seem to be necessary and proper under the [Commerce Clause/ taxing spending power/ War powers]. Such regulation goes to [facts regarding actors, and instrumentalities impacted by regulation].
Thus, Congress [does/ does not] have the power to regulate [activity].
Con Law
War Powers
Congress
Congress has the power to declare war, raise and support armies, provide for a maintain a navy, and organize, arm, discipline and call up the militia.
Con Law
Impeachment and removal Power
Congress
Impeachment and removal Power
Congress has the power to impeach and remove the President, Vice President, federal judge and other officers of the United States for treason, bribery, high crimes and misdemeanors. Impeachment by the House requires a majority vote and removal requires conviction by 2/3rds vote of the Senate.
Con Law
How to approach an essay re: Executive Powers?
Executive Powers
With executive powers over internal affairs the essay would likely have a scenario where congress is silent. In that instance you will make 2 arguments: (1) argue that congress has been silent and discuss whether the power abdicates another branch of its power or prevents another branch from carrying out its power. (2) make the argument for the president, that their conduct falls under the umbrella of one of their express powers.
Executive powers have only been tested once (July 2008)
Con Law
President’s Powers Over Internal Affairs
Executive Powers
The executive power is vested in the President. If the president acts with express or implied authorization of Congress, presidential authority is at its highest, and the action is strongly presumed to be valid. If the president acts where Congress is silent, Presidential actions 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. Where the President acts against the express will of Congress, the President has little authority and the action is likely invalid.
I.e. First prong: where Congress rejects the President’s proposed legislation, Congress clearly is indicating its disapproval of the President’s plan. However, the President will argue that because Congress did not pass a contrary bill and instead only rejected the proposed legislation, Congress has not spoken on the issue. Thus the President’s actions fall within the second prong
Con law
President’s Power as Commander in Chief
Executive
The president has broad powers as Commander in Chief to use American troops in foreign countries. However, the president has no power to declare war without a congressional declaration of war.
Con Law
Veto Power
Executive
Veto Power
Every act of Congress must be approved by the President before taking effect unless the veto is overridden (annular) by two-thirds vote of both the House and the Senate. The President has 10 days to exercise his veto power. The President must veto the total bill, they cannot exercise a line-item veto.
*only on MBEs
Con Law
Executive Privilege/Immunity
Executive
The privilege extends to documents and conversations but must yield if court decides information is needed in a criminal case. The president is immune from suits for civil damages for actions taken as President. Immunity extends to aides exercising discretionary authority of President.
Con Law
Due Process
The Due Process Clause of the 5th Amendment is made applicable to the states through the Due Process Clause of the 14th Amendment. Due Process is either Substantive or Procedural.
Con Law
Substantive Due Process
If a law limits the ability of everyone to engage in an activity, then it is a substantive due process issue. The government must have an adequate reason before depriving life, liberty, or property. SDP protects economic/social liberties and fundamental rights.
Fundamental Rights/ State Alienage/ Race= Strict Scrutiny.
Gender/ Illegitimacy = Intermediate Scrutiny
Right to Education/ economic liberties/ minimum wage/ welfare/ zoning = Rational Basis
Here, [state actor] is depriving [individual] of [fact]. This [is/ is not] a fundamental right because [facts – issue will not exactly fit as fundamental right].
Con Law
Strict Scrutiny
the law or governmental action will be upheld only if the government shows:
it is **necessary to achieve a compelling or overriding government purpose. **
(courts look to the actual reason the law was enacted).
Here, the government interest is [fact or inference to show an interest]. This interest [is/ is not] a compelling interest because [ facts – i.e. national security, promote racial diversity in higher education, crime reduction etc]. The regulation [is/ is not] the least restrictive means to achieve that interest because [facts- this is generally where the regulation fails.].
Thus, the regulation [is/ is not] constitutional. *most fail strict scrutiny
Con Law
Rational Basis
Under rational basis review, the plaintiff must prove the law is not rationally related to a legitimate government interest.
The government action will fail the rational basis review if the action is motivated by animus against a specific group.
A deprivation of an economic liberties is subject to the rational basis test and substantive due process is violated if the government conduct does not pass the test. *Apply contract Clause if economic or social liberty
Con Law
Procedural Due Process
The government must provide a “fair” process/ procedure (notice and hearing) before it may intentionally deprive a person of life, liberty or property.
To determine whether the Due Process has been violated, a court will determine (1) whether a protected interest is threatened, and (2) if so, what process is due.
Property: Real or personal property; public education; government employment; licenses; and benefits one is ALREADY receiving. (has to be already employed, not merely applying)
Liberty: is threatened when person loses physical freedom, a fundamental right, or unjustified intrusions on personal security. ( i.e. driving, raising a family).
Con Law
Procedural Due Process
What is the process that is due?
If a government action threatens a protected interest in a non-judicial civil proceeding, the court considers the following factors to determine the process due: (1) private interest affected, (2) risk of erroneous deprivation of interest using current procedure, and probative value of additional or substituted process, and (3) fiscal and administrative burden in providing the additional process.
Con Law
Equal Protection Clause
14th Amendemnt
Prohibits the government from treating individuals or classes of individuals differently under similar circumstaces without sufficient jusitification.
Applicable to the Federal gov through 5th Amendment.
Con Law
Equal Protection Classification:
Ethnicity, State Alienage, Race, Nationality
Level of scrutiny and Discrimination?
Laws discriminating on the basis of ethnicity, state alienage, race, or national origin are subject to strict scrutiny.
Discrimination must be shown on the face of the statute or regulation or through discriminatory impact and intent-not just incidental discrimination.
Con Law
Equal Protection Classification:
State Alienage
CAVEAT: Public Function Doctrine
Where there is discrimination against a State alienage, the government must show the discrimination is necessary to achieve a compelling government interest.
Public Function Doctrine – Alienage Caveat
A state may exclude noncitizens from certain government jobs (i.e. public school teachers, police officers) and from participation in state government (i.e. voting, jury service, elective office). Courts use the **rational basis test. **
Con Law
Equal Protection Classification:
Gender Legitimacy
Level of Scrutiny and Discrimination?
Gender discrimination is shown when (1) a law facially discriminates on the basis of gender, or (2) if the law is facially neutral, there is both discriminatory impact and discriminatory intent. Classifications benefiting women but based on stereotypes are impermissible. Classifications designed to remedy past discrimination or differences in opportunity will likely be upheld. Numerical set-asides or quotas require clear proof of past discrimination.
Con Law
Equal Protection Classification:
Gender
Intermediate Scrutiny Rule
Intermediate Scrutiny
The government must show discrimination is substantially related to an important government interest.
Regarding Sex Discrimination, the government must show an exceedingly persuasive justification.
Con Law
1st Amendment
The 1A prohibits the federal and state govern from infringing on the freedom of Speech, freedom of press, the right to assemble, and the right to petition the government. The 1A also protects the free exercise of religion and forbids any government establishment of religion.
[Free speech is frequently tested issue among indiv. rights & often combined w/ other rights’ violations such as substantive & procedural due process because a deprivation of free speech is also a deprivation of a fundamental right.]
First & Fourteenth Amendment Claims
*only if state govt as opposed to fed govt.
The 1st Amendment is incorporated to apply to the states under the 14th Amendment Due Process Clause. Thus, P must show that her 1st Amendment rights, which apply to D under the 14th Amendment were violated.
Then do state action rule; then 1st amendment free speech etc.
Con Law
Content Based Speech Regulation
Per Se Unconstitutional
If the government regulates speech content, the regulation is subject to strict scrutiny.
Under the strict scrutiny standard, the government must prove that the regulation is necessary to meet that compelling government interest.
(since statute concerns only those who have a particular purpose or message such as preventing begging, then it will be content-based.)
Here, [Discuss whether the government’s regulation of speech is content-based. Look at the language of the statute for this. It is presumptively unconstitutional and subject to strict scrutiny].
Con Law
Content-Based Speech Regulations
Unprotected Speech
The government may regulate speech deemed “unprotected” without violating the 1st Amendment: (1) inciting imminent lawless action; (2) true threats and fighting words; (3) obscenity; (4) defamatory speech; and (5) some commercial speech.
Con Law
Content-neutral Speech Regulations
Conduct Based: Time, Place, Manner Restrictions
The government’s ability to regulate time, place, and manner of speech varies with the forum in which the speech takes place. These regulations are put under less scrutiny because they are not limiting what people express, rather, they limit how and where people express it. (Manner of distribution examples, leaflets, posting signs,)
Public Forum: Intermediate Scrutiny
Limited Public Forum & nonpublic Forum: Rational Basis
i.e. no speech between certain hours, in a certain location, no written material but verbal speech allowed.
Con Law
Content-Neutral Speech Regulation
Public Forum
Conduct Based: Time, Place, Manner Restrictions
Traditional public forums are historically associated with public activity (streets, parks, sidewalks).
A designated public forum is not historically open to speech-related activities but which the government has made accessible to all speakers for such activities on a permanent or limited basis, by practice or or policy. (must be owned by gov, open to the public and open to public expression: library, university, state fairgrounds).
Standard
A public forum may only regulate the time, place, and manner of speech if:
(1) content neutral (meaning both subject matter neutral and viewpoint neutral.)
(2) narrowly tailored to serve an important or substantial government interest(Intermediate scrutiny), and
(3) leave open alternative communication channels.
Con Law
Content-Neutral Speech Regulation
Public Forum
Conduct Based: Time, Place, Manner Restrictions
A limited public forum exists where the government reserves the forum only for certain groups or only for discussion of certain subjects. (city bus)
A non-public forum is government owned property that is not open to speech. (i.e. police station, military base) There is no right to free speech in non-public forums.
Standard
In such locations, regulations are valid when they are (1) viewpoint neutral and (2) reasonably related to a legitimate government interest.(reasonable in light of the purposes of the forum). Viewpoint neutral means the government may prohibit speech on certain issues altogether, rather than allowing only one side of an issue to be presented.
Con Law
Symbolic Speech
To determine whether expressive conduct is sufficiently communicative to fall under the protection of free speech, the court examines whether there was an **intent to convey a particularized message through the conduct **and the likelihood that the message would be understood by people viewing it. If the conduct is classified as expressive, the court must determine whether the state’s regulation is related to the suppression of free expression.
If it is not related to the suppression of free expression then the O’Brien test will apply.
Under the strict scrutiny standard, the government must prove that the regulation is the necessary(least restrictive means) to achieve a compelling government interest.
Con Law
O’Brien Test
Noncummunicative Conduct Test
after symbolic speech test
When a regulation prohibits conduct that combines “speech” and “nonspeech” elements, the government must meet intermediate scrutiny.
The regulation must (1) be within the constitutional power of the government to enact; (2) Further and important or substantial government interest, (3) that interest must be unrelated to the suppression of the message(secondary effects), and (4) prohibit no more speech than is necessary to further that interest.
i.e. flag burning – protected, burning draft card – not protected, nude dancing – not protected, burning cross – protected unless intended a threat.
Here, the law served many functions important to the _ gov interest. The law was limited to the noncommunicative aspect of the conduct. There are no alternative means that would more precisely and narrowly assure the important government interest.
Con Law
Commercial Speech
Commercial speech is speech proposing a commercial transaction. Illegal, false and deceptive ads are not protected speech.
The government can only regulate protected commercial speech if the regulation: 1) serves an important or substantial government interest; 2) directly advances that interest directly(gov needs to present evidence that regulation will further the interest), 3)** narrowly tailored to serve that interest**…
If commercial speech and noncommercial speech is so intertwined then treat it as noncommercial speech.
Con Law
Government - Public Employee Speech
Pickering Connick Test
The test asks if the employee spoke on matters of public concern, and if the free speech rights of the government employee outweigh the interest in a disruptive-free workplace.
(if private matter or within scope of employment, then the speech can be controlled - no 1st amendment protection. Govt can fire at will)
Con Law
Adoption of Speech conditioned on Gov. Funding.
The First Amendment prohibits the government from conditioning federal funding to an organization on the adoption of certain speech. Congress may impose conditions on federal funding by limiting a funding program to only provide money for certain activities.
However, Congress may not use federal funding as leverage to create speech that is outside the scope of the funding program’s intended purpose.
Con Law
Freedom of Association
The 1st Amendment includes the right to join together with others or expressive or political activities. Laws restricting freedom of association must be necessary to serve a compelling government interest, not related to the suppression of ideas, that cannot be achieved through a means less restrictive on associational freedoms.
Con Law
Freedom of Association
Exception:
Illegal Organization
A person in an organization, or the organization itself, that advocates illegal conduct can be punished or disqualified for a state benefit, denied license or government employment, only when he or she is an active member of it, knows that it advocates illegal conduct, and has specific intent to bring about the accomplishment of the illegal goal. Can the organization be req’d to disclose membership lists? Balancing interference with the right to associate and the government interest: disclosure is not required unless the government can make membership of that group illegal, ONLY then can the government require those groups to disclose the list.
Con Law
Freedom of Religion
Establishment Clause
Government may not endorse or favor any specific religion. If a regulation on its face discriminates or prefers a religion generally over another religion, then courts will apply strict scrutiny.
2 Tests:
Facially Neutral - Coercion Test
Historical Practices and Traditions Test
If speech is involved raise viewpoint discrimination under the free speech clause.
Con Law
Establishment Clause
Facially Neutral - Coercion Test
If a law or program is facially neutral (no sect preference), courts will apply the coercion test as a factor. The government cannot coerce support or participation in religion against one’s will (e/.g. broadcasting prayer during school graduation or football game, expectation to participate).
Con Law
Establishment Clause
Historical Practices and Tradition Test
The Kennedy decision abandoned the Lemon test and looks to Historical Practices and Traditions in evaluating whether the government is endorsing a religion. (i.e. opening sessions of legislation with prayer is deeply embedded in the history and tradition of the country.)Long standing monuments, symbols and practices should instead be considered constitutional so long as they “follow in” a historical “tradition.”
Con Law
Free Exercise Clause
The government may not burden the free exercise of religion. Courts look to whether the case involves a religious belief or practice; the complainant sincerely holds the belief; and the government is excessively interfering with sincerely held religious beliefs or practices.
However, neutral laws of general applicability w/ no intent to infringe on free exercise, but happen to prohibit religious activity, are allowed under 1st A.
(incidental intereference is allowed in an attempt to benefit a wide variety of people.)
Con Law
Threshold Speech Issues
Reasons a law may be found void on its face
The government is limited in how it regulates speech and the law may be found void on its face. Speech regulation must not be [prior restraint, overbroad, vague, or unfettered discretion.]
Con Law
Regulation Void on Its Face
Overbreadth
A law is overbroad when it prohibits protected and unprotected speech, regulating substantially more speech than necessary. (“all” or “any”)
Regulation Void on Its Face
Vagueness
A law is void for vagueness if a person of ordinary intelligence must guess at its meaning. (“offensive language: or “opprobrious”).
Regulation Void on Its Face
Prior Restraints
Gov. restriction of free speech in advance of publication is unconstitutional. ( Gag order absent a showing of clear and present danger is unconstitutional unless there are other less restrictive means. Exception: National security interest).
Regulation Void on Its Face
Unfettered Discretion
A law granting regulating officials unfettered discretion is void on its face. A regulation must define what standard, and how to apply the law, to prevent unfettered discretion over speech.
Defense to Regulation
Viewpoint discrimination
Argue more as a defense.
The gov is only prohibiting one viewpoint then the regulation should be struck down.( i.e, you can’t display nazi paraphernalia .. that’s basically not allowed). Viewpoint neutral means the government can prohibit speech on issues altogether but not allow one side of the issue to be presented.
K
Applicable Law
The Common law governs transactions for real property and services. The UCC applies to contracts for the sale of goods (moveable, tangible property).
If a contract involves both goods and services, a court will apply the “Dominant Purpose Test,” determine what aspect of the contract is its dominant purpose and apply the law governing that aspect to the entire contract.
K
Merchants
merchants regularly deal in the goods of the kind involved in the transaction. or otherwise holds himself out as having special knowledge or skills as to the goods involved, or hired someone who has special skills or knowledge as to the goods involved.
K
Contract Formation
In order for a contract to be validly formed it needs an offer and an acceptance of that offer and valid consideration or a substitute, with no defenses to formation.
K
Requirements K
Seller agrees to sell as much as buyer requires
K
Advertisement
Majority rule, it is an invitation to receive offers from the public. Under the minority rule, it may be an offer if it specifies the reward, who may accept and how acceptance is made.
K
Offer
An offer is the outward manifestation of a present intent to be legally bound to a contract, certain and definite terms, and communication to an identifiable offeree.
K
Certain and Definte Terms
In offer
QTIPS
Quantity; Time (of performance); Identity (of Parties; Price; and Subject Matter.
UCC only requires Quantity.
K
Output K
Seller agrees to sell entire production buyer.
K
Preliminary Negotiations
Communications between parties prior to an offer being tendered
K
Mailbox Rule for Offer
An offer is effective upon Receipt.
K
Merchant’s Firm Offer
A merchant that offers to buy or sell goods in a signed writing, giving explicit assurances that it will be held open, is irrevocable, absent separate consideration, for the time stated or a reasonable time not to exceed 3 months.
The offer becomes revocable after 3 months but is not revoked/terminated until merchant says.
K
Option K
An option K arises when the offeree provides separate consideration in exchange for the offeror’s promise to keep the offer open for a period of time and is accepted within the time specified in the option contract or a reasonable time.
Mailbox rule for Option K: only effective upon receipt
k
Unilateral K
Irrevocable Offer
An offer for a unilateral contract becomes irrevocable once the offeree begin performance; offeree must be given reasonable time to complete performance.
k
Revocation
All the ways to revoke/terminate
- Termination by Rejection
- Termination by Counteroffer
- Termination by Lapse of Time
- Termination by Death/Insanity/ Destruction of Subject Matter
K
Termination by Rejection
An offer terminates if the offeree makes an unequivocal statement that they do not intend to accept the offer. A rejection is effective when it is recived by the offeror.
K
Termination by Counteroffer
A counteroffer concerns the same subject matter as the original offer but contains different terms. It is both a rejection of the original offer and a new offer.
k
Termination by lapse of time
An offeree must accept an offer within the time period specified in the offer, or, if no time is stated, within a reasonable time.
K
Termination by Death, Insanity, Destruction of Subject Matter
If either party to the contract dies or is deemed insane before acceptance occurs, the offer terminates unless the offer is irrevocable.
K
Acceptance
Under common law, an offeree must objectively manifest assent to the mirror image of the terms and communicate in any reasonable manner.
May be made by performance (Unilateral K).
Or by return promise (Bilateral K).
Any different or additional terms are treated as a rejection and counteroffer.
K
Acceptance by Silence
Silence does not operate as an acceptance of an offer unless, (1) offeree has reason to believe the offer could be accepted by silence, (2) was silent & inteded to accept the offer by silence or (2) due to previous dealings or patterns of behavior, it is reasonable to believe the offeree must notify the offeror if the offeree intends not to accept.
K
Unilateral Contract
Acceptance
Acceptance by Performance
The state of performances makes the unilateral contract irrevocable. The offer is only accepted once performance is complete.
K
Accepting Non Conforming Goods
Non conforming goods are an acceptance and a breach; or a counteroffer.
If the nonconforming goods are merely shipped; it is both acceptance and breach.
Where a shipment is accompanied by notice that the goods are merely an accomodation; and no contract is formed; it is a counteroffer.
K
Battle of the Forms
Between Merchants
Between Merchants, additional or different terms will be considered a timely acceptance and become party of the contract unless:
(1) the additional or different terms are a material alteration of the offer (terms dropped & K formed),
(2) the other party rejects the changes in a commercially reasonable time (terms dropped & K formed),
(3) the offer expressly limits the acceptance to the additional terms of the offer, in which case, then no K is formed, and the “acceptance” is a rejection and counteroffer. (Disclaimers and warranties are material terms because they limit remedies).
k
Battle of the Forms
Different Terms
Knock Out Rule
Some jurisdictions do not allow the different terms to become part of the contract unless the offeror signs a new contract, others apply the KNOCKOUT rule (conflicting terms omitted from K) and the court uses GAP FILLERS (UCC default terms) for the knocked out terms.
If no acceptance but the parties perform anyways then apply knock out rule.
K
Battle of the Forms
One Nonmerchant Additional Terms
If any party is a non-merchant, the additional or different terms are considered to be mere proposals to modify the contract that do NOT become part of the contract unless the offeror expressly agrees.
K
Consideration
Consideration is a bargained for exchange supported by legal value.
K
Promissory Estoppel
consideration substitute
A promise is enforceable to prevent injustice if: the promisor should reasonably expect to induce action or forbearance, and such action or forebearance is in fact induced. The remedy granted is limited as justice requires.
K
Surrendering a Claim
Consideration substitute
If the claim is invalid, surrendering can still consitute consideration if: (1) the claim is in fact doubtful or (2) the surrendering party (regardless of the other party) believes the claim is well founded.
K
Preexisting Duty Rule
consideration doesn’t exist
The preexisting duty rule stipulates that a promise to do something of which the party is already legally obligated to do, by contract or otherwise, is not consideration.
However, if the promisee is giving something in addition to what they alaready owe or they agree to acceperate performance, then there is new sufficient consideration.
k
Illusory Promise
Consideration does not exist
There is no consideration when performance is left to the discretion of the other party. (“all i want,” “all you want to sell me”).
K
Past/ Moral Consideration
Consideration does not exist
There is not valid consideration if it is a promise in exhange for something already given or performed.
Exception: New promise to pay anyways. (i.e. written promise to pay debt after SOL passed).
K
Contract Modification
Traditionally, contract modification must be supported by new consideration due to the preexisting duty rule.
Modernly, a modification can occur if the contract is executory, both parties agree, the modification is fair and equitable, and the events causing the need for modification were unanticipated.
Under the UCC a modification is valid if it is made in good faith. Must satisfy SOF.
K
Statute of Frauds
Certain types of contracts must be evidenced by a sufficient writing and signed by the party against whom enforecement is sought.
1) promise in consideration of marriage.
2) contact that by its terms cannot be performed within 1 year from the day after its formation
3) transaction for real property
4) goods over 500
signature may be typed, letterhead, or electronic
K
SOF
Satisfaction by Performance
One year provision; real property; suretyship
Perforamnce of the oral agreement can satify the SOF.
- One year provision - Must be full performance (i.e. service contract).
- Real property - seller fully performas by conveying land to buyer; OR (buyer does 2 of 3) i. buyer fully performs by taking possession of property, ii. making full or part payment, and/or, iii. making substantial improvements to the land.
- Suretyship - a 3p agreement where surety promises an obligee to pay the principal’s debt if the principal fails to pay obligee . SOF is satisfied if the main prupose is for the surety’s own economic benefit.
k
SOF
Satisfaction by
Admission in Court
SOF is satisfied if party against whom enfrocement is sough admits in pleading, testimony or in court that the contract was made.
K
UCC ways to Satisfy SOF
- Performance
- Admission in court
- Merchant confirmatory Memo
- Specially manufactured goods
k
SOF
UCC satisfaction by Performance
SOF is satisfied for the quantity of goods for which payment has been made and accepted or which goods have been received and accepted. (contract only enforceable for the quantity of goods paid for or accepted).
K
SOF
UCC satisfaction by Admission in Court
Admission in Court: SOF is satisfied if party against whom enforcement is sought admits in pleading, testimony or in court that the contract was made. (contract only good for quantity admitted).
K
SOF
UCC Merchant Confirmatory memo
Merchant Confirmation Memo: Merchant sends written confirmation after oral agreement w/in reasonable time, binds recipient if reason to know of contents and no written objection within 10 days of receipt.
k
SOF
UCC satisfaction by Specially Manufactured Goods
Specially manufactured Goods: SOF satisfied if seller made substantial beginning toward making specially manufactured goods for buyer, not suitable to sell to others.
k
Parol Evidence
Fully Integrated
A final written expression (Integrated) of the parties agreement cannot be contradicted by evidence of prior written agreements or contemporaneous oral agreements. The final writing supersedes all prior agreements.
PE will allow evidence to: determine the intent and context surrounding the formation of the contract, to explain ambiguity, to prove a condition precedent, to prove defenses to formation, or to show a lack of consideration.
k
Parol Evidence
Partially Integrated
If the agreement is only partially integrated then either party can present consistent additional terms, as long as it does not contradict the terms of the writing. PE does not apply to collateral agreements.(“Merger Clause” points to complete integration)
k
Parol Evidence
Interpretation of Terms
Trade Usage is used to fill in gaps or interpret ambiguous language. Such evidence can trump in conflict:
Course of performance (regular performance within contract) can establish waiver/modification of express terms> express terms in K> Course of dealing (pattern of previous transactions between parties)>Custom and Trade usage (regular industry practice).
k
Adequate Assurances
Where there are reasonable grounds for insecurity regarding a parties inability or willingness to perform, the insecure party must provided adequate assurances in writing within a reasonable amount of time, not to exceed 30 days, can be treated as repudiation.
k
Anticipatory Repudiation
One party to the k unequivocally states they will not perform prior to the time performance comes due. The aggrieved party can suspend performance, demand assurances, wait for the time performance comes due, or treat the repudiation as breach and sue immediately. Adequate assurances must be in writing within a reasonable amount of time.
However, if the repudiation is ignored, then continued performance by the non-repudiating party must be suspended if the performance would increase the amount of damages.
K
Retracting
Anticipatory Repudiation
A repudiating party may retract their repudiation before performance is due unless the non-repudiating party has treated the contract as rescinded/breached or materially changed their position.
Retraction reinstates the repudiating party’s rights under the contract and allowance to the aggrieved party for any delay occasioned by the repudiation.
K
Waiver
a waiver is a voluntary or intentional relinquishment of a known right. Cannot be a material condition.
Waiver of material conditions: a waiver may be retracted if there is still reasonable time for the condition to occur, the other party has not materially changed their position in reliance on the waiver, and the waiver is not a material condition.
k
Breach
(major)
A breach occurs on failure of an absolute duty to perform. The breach is material if the obligee does not receive the substantial benefit of the bargain. The nonbreaching party is discharged from duty and has a right to remedies. If timely performance is essential to the contract or the contract expressly provides time is of the essence the failure is material.
k
Minor Breach
A breach is minor if obligee receives substantial benefit of the bargain despite obligor’s defective performance. Nonbreaching party still has a duty to perform and may seek damages.
K
Doctrines of Impossibility & Impracticability
Defense to Breach
A party’s duty to perform is discharged if: an unforeseeable event occurs that makes performance extremely difficult or impossible causing a greatly disproportionate expense, the nonoccurrence of the event was the basic assumption of the contract, and the party seeking discharge was not at fault.
K
Frustration of purpose
Defense to Breach
A contingency occurs that dramatically/totally reduces the value of performance to the receiving party and principal purpose in entering the contract is substantially/totally frustrated.. However, A fixed-price k explicitly assigned risk of market price to one party and cannot be excused for FOP or Impossibility.
k
Defenses to breach
Discharge of duties in unforeseen events:
Even with an absolute duty, promisor may not be liable for nonperformance only if the nonoccurrence of the unforeseen event was a basic assumption of the contract.
- doctrines of impracticability & impossibility
- Frustration of purpose
- Force Majeure clause (always apply impracticability if clause)
k
Accord & Satisfaction
New agreement (accord suspends duty; modification alters)Where obligee promises to accept substituted performance in satisfaction of obligor’s original, existing duty.
K
Express Warranty
An affirmation of pact or promise made by a seller to a buyer can create an express warranty if the affirmation is part of the basis of the bargain. The affirmation must have been made or introduced at the time the buyer could have relied upon it when entering into the contract. A statement regarding the value of the goods or a statement purporting to be the seller’s opinion about the goods does not create an express warranty. Modernly, privity has been eliminated.
k
Implied Warranty of Merchantability
In every contract for the sale of goods by a merchant who deals in the goods of the kind sold, there is an implied warranty that the goods are merchantable. To be merchantable, the goods must be fit for the ordinary purpose for which such goods are used. The implied warranty can be disclaimed by either a specific or general disclaimer.
Privity is required against a manufacturer but not retailer unless the product is inherently dangerous. Modernly the manufacturer is liable to even a bystander.
k
Implied Warranty of Fitness for a Particular Purpose
If the Seller knew of buyer’s purpose for the goods and buyer relied on seller’s knowledge and skill to select the particular good, an implied warranty that the goods will be fit for buyers purpose will arise.
k
Disclaimers of Implied Warranties by Inspection
If the buyer, before entering into the contract, has examined the goods or a sample as fully as the buyer desires, or has refused to examine the goods, then there is NO implied warranties with respect to defects that an examination ought to have revealed to the buyer.
K
Breach of Warranty Remedy
If the buyer elects to accept defective goods, the seller is still liable for breach of warranty. The damages are the difference in value of the goods accepted and the value of the goods that should have been delivered as warranted. The buyer is still entitled to incidental and Consequential damages.
k
Perfect Tender
UCC
Does not apply to installment contracts
If the goods or tender of delivery fails in any respect to conform to the contract a breach has occurred. The buyer may reject the whole within a reasonable time of delivery, accept the whole(waiver), or accept some units. The buyers right to reject the goods is cut off by acceptance or failure to reject within a reasonable time.
k
Perfect Tender
Seller’s Right to Cure
If the buyer rejects the goods and the time for performance has not passed, the seller can cure the non-conformity by providing reasonable notice of the intent to cure and making a new tender of conforming goods. If the buyer rejects nonconforming goods that the seller reasonably believed would be acceptable, the seller, after reasonably notifying the buyer, has a further reasonable period of time (beyond the time provided in the contract) to tender conforming goods. **Between Merchants, a seller can ask for a full written statement of all defects upon which buyer relies.
Here, the buyer rejected the goods because [facts]. The seller [did/ did not] cure the non-conformity because [facts]. The seller reasonably believed the non-conforming goods would be acceptable because [facts].
Thus the seller [did/did not] properly cure the defect.
k
Perfect Tender
Buyer’s Revocation of Acceptance
Buyer has a right to revoke acceptance within reasonable time if acceptance relied on 1) assurance that defect would be cured, 2) difficulty discovering defect, 3) or seller’s assurance that goods conformed to contract.
K
Tender of Nonconforming goods
Is a breach of contract, even if the goods are accepted, the buyer is entitled to damages from the breach. Buyer is entitled to repayment or resell the goods and apply the proceeds to what the seller owes. Buyer is entitled to offset expenses of selling.
K
Rescission
The non-defaulting party to a contract can rescind a contract, which requires a return of benefit conferred on the other party.
Fraud, misrepresentation; lack of capacity or authority by one party, are grounds for rescission.
The effect of rescission is to cancel the contract.
K
Reformation
A court may reform a contract to conform to the parties’ original intent. Available if there is a valid contract, but there was a misrepresentation or mutual mistake that requires correction. Not available in cases where unclean hands or laches are evidenced. Parol evidence is admissible to prove misrepresentation or mistake.
(look for mistake where a secretary failed to properly enter sale price into contract).
Reformation is also subject to the rights of innocent third parties. A good faith purchaser for value may prevent reformation.
k
Quasi-K
A court may create a quasi-K where there is unjust enrichment but no enforceable contract. (i.e. emergency services, mistake, fraud, or misrepresentation). The court may measure damages by the increase in value to the home or the cost of materials and labor.
Change in Position
If an innocent D was paid more than D was entitled to and D changed their position in light of the payment, P may be barred in whole or part from recovery. One who makes an unusual amount of money and makes a material change in position in spending the money ( i.e. taking a vacation they would have never taken) then the unjust enriched person may only have to pay back what is left of the money.
K
Remedy
Expectation Damages
Expectancy damages intend to give the injured party the benefit of the bargain by awarding a sum of money that puts him in as good a position as he would have been had the contract been performed. Compensatory damages must be causal, certain, foreseeable, and unavoidable.
K
Mutual Mistake
Defense to Formation
The contract is voidable by the adversely affected party only if there is no meeting of the minds; both parties are mistaken as to the basic assumption of the contract(i.e. subject matter, price, terms); material to the contract, and the person asserting the mistake did not bear the risk of mistake.
k
Unilateral Mistake
Defense to Formation
The mistaken party may void a contract if one party knew or should have known; of the mistake regarding a basic assumption; material to the contract.
Modernly, if the mistake is so extreme, it is grounds for recission.
k
Unconscionability
Defense to Formation
procedural unconscionability refers to an absence of meaningful choice in the bargaining process.(Adhesion contracts, hidden or inconspicuous terms)
Substantive unconscionability Contract terms which are unreasonably favorable to the other party. (one sided terms that shock the conscious)
k
incapacity
intoxication
Defense to Formation
Voluntary intoxication is not a defense unless the other party knew and took gross advantage of them. Involuntary intoxication is voidable if the person was unable to understand the nature and consequences of the transaction.
k
Void Contract vs. Voidable Contract
Defense to Formation
If the defense is successful, the contract will be generally void or voidable. A void contract is treated as though it never existed. A voidable contract is enforceable until a party takes action to rescind the contract ( the adversely affected party may be able to enforce the contract).
k
Incapacity
Infancy
An infant ( under 18 years of age) has the capacity to incur only voidable contractual duties to an adult. Once they reach the age of maturity, and within a reasonable time, they may disaffirm (rescind) the contract and return all consideration, or they may affirm (enforce) the contract expressly or by failing to disaffirm within a reasonable time. When necessaries are furnished, the person who lacks capacity is liable for a reasonable value of the services or goods.
K
Scrivener’s error
Scrivener’s error
A clear drafting mistake may be corrected and the contract reformed by oral evidence.
k
Non-Compete Agreements
Public Policy
Contracts in restraint of trade (non-compete agreements) must be based on a reasonable business need for asking the other party to not compete. It must be based on a reasonable geographic and durational scope.
K
Remedy
Warranted Goods
Warranty: (accepted noncomforming goods): when goods are warranted to perform a certain way and don’t, the measure of damages is the difference in value of the goods as warranted and the goods as delivered.
K
UCC
Seller’s Damages
Expectation damages are the contract price less either the resale price or the lost profits(volume seller). A seller of near unlimited goods who would have made two sales absent the breach is entitled to lost profits (difference of contract price and seller’s cost) as a measure of damages. Consequential damages are not available for sellers.
K
Remedy
Employment Contract
Breach by an employer of an employment contract, the standard measure for the employee’s damages is the full contract price. A nonbreach party cannot recover avoidable damages, if a breaching employer can prove that a comparable job in the same locale was available, contract damages for lost wages will be reduced by the wages that the plaintiff would have received from that comparable job.
k
Remedy
Consequential
Consequential damages are those losses above and beyond expectation damages resulting from the breach that a reasonable person would have foreseen at the time of entry into the contract.
These damages are generally due to plaintiff’s particular circumstances and are usually lost profits resulting from breach; these damages cannot be speculative.
K
Remedy
Duty to Mitigate
A party to a contract has the obligation to avoid damages to the extent possible by taking steps to prevent loss when such steps do not involve undue risk, expense, burden, or inconvenience/humiliation.
k
Remedy
Reliance Damages
Compensatory
If expectation damages are too speculative, the court may award reliance damages instead, but never both.
Reliance damages are designed to reward the plaintiff the cost of their performance; they put the plaintiff in the position they would have been in if the contract had never been formed.
Allowed when the plaintiff acted in reliance and the plaintiff’s reliance was foreseeable. Reliance damages cannot exceed the contract price.
K
Remedy
Incidental Damages
Costs incurred finding substitute performance, and or cost of transportation, care, and custody of goods. They must be certain. No forseeability requirement, only reasonableness.
k
Remedy
Liquidated Damages
A liquidated-damages clause specifies that, in the event of a breach on K by one of the parties, that party must pay the other party a set amount of damages.
Such a clause will be enforced if it does not impose a penalty ( the amount set is reasonably related to the anticipated or actual loss caused by the breach).
If the clause is not valid then the P may recover actual damages. If valid, the non-breaching party will receive the amount stipulated in the clause even if the non-breaching party did not sustain any monetary damages.
k
Remedy
Specific Performance
Specific performance requires the defendant to actually perform under the contract rather than pay legal damages for the breach. Specific performance is available where there is (1) a valid contract, (2) that is sufficiently definite in its terms, (3) all conditions have been met for defendant’s performance, (4) that there is no adequate remedy at law, (5) enforcement is feasible and (6) it is not subject to any equitable defenses.
k
Remedy Defenses
1) Unclean Hands
2) In pari Delicto
3) Laches
4) Equitable Estoppel
5) Bona Fide Purchaser
6) Statute of Limitations (breach of K to run no later than 6 months)
K
Remedy Defenses
Unclean Hands
The party seeking relief must not have been guilty of wrongful conduct with respect to the transaction subject matter.
(the wrongful conduct has to relate to the parties’ transaction. There maybe facts on the p doing something wrongful such as putting assets in another person’s name to hide assets from creditors. Unclean hands is not a defense if wrongful conduct unrelated to the transaction.)
K
Remedy Defenses
In Pari Delicto
Recovery is barred where plaintiff is equally or substantially at fault for his own injuries.
K
Remedy Defenses
Laches
The right to equitable relief is cut off when there has been unreasonable delay in intiating the claim, and the delay prejudices the defendant.
(common form of prejudice is lost evidence).
k
Remedy Defenses
Equitable Estoppel
Plaintiff will not be permitted to sue defendant for actions defendant took in reliance on plaintiff’s statements.
can be applied in tort or contract.
(i.e. p owned business next to undeveloped land. P negotiated to have golf course rather than homes placed next to his land. P then tried to sue for the excessive amount of golf balls landed on P’s land).
k
Remedy Defenses
Bona Fide Purchaser
Specific performance is cut off when the contract subject matter has been sold to a bona fide purchaser who (1) pays valuable consideration, (2) with no notice of the contract.
One Cannot be a BFP if there was not good title (such as a conversion)
TIP: If facts state D sold the property or gifted to 3p, first discuss if constructive trust is available, then determine who it can be enforced against (e.g. D, buyer, grantee). Constructive trust can be imposed on innocent donee who received property as gift.
K
Temporary Restraining Order
A temporary Order (TRO) is an emergency remedy used to maintain the status quo (for 15 days in state courts, or 14 days in Federal courts, but can be extended) pending the outcome of a preliminary hearing.
It may be ex parte provided a good faith effort or good cause for not notifying in advance.
The moving party must show he is likely to suffer irreparable harm while waiting for the preliminary injunction hearing, he is likely to succeed in a preliminary injunction and no defenses. The court will factor a balancing of hardships in favor on the non-movant. Petitioner may have to provide a bond should the case fail.
Discuss TRO and preliminary injunction when urgent matter between parties
K
TRO
What is required in the TRO order?
Did the court properly grant the TRO
The TRO must state the** reasons why it was issued** and the **acts to be restrained. **
K
Inadequate Legal Remedy
Equitable remedies requirement
Legal (monetary) damages are inadequate if (1) they are speculative, (2) defendant is insolvent, (3) multiple suits are necessary/ continuing wrong, or (4) the thing bargained for is unique(items that are difficult to value).
K
Remedy
Reformation
When a writing that evidences an agreement fails to express the agreement because of a mistake (add facts that trigger)(or fraudulent misrep) as to the contents of the writing, the court may reform the writing to express the agreement.
Here, the parties had a written agreement. As discussed above, there was an inadequate legal remedy. Mutual mistake, as analyzed above was ground for reformation.
Thus, P had an action for reformation.
k
Preliminary Injunction
A preliminary Injunction is issued pending a full trial on the merits to preserve the status quo. The same elements are required for a preliminary injunction as a TRO; however, a preliminary injunction requires notice and a hearing.
1) likelihood of success on merits
2) Irreparable harm
3) balancing of hardships in favor of nonmoving party.
4) no adequate remedy at law.
Remedy
Permanent Injunction
Issued after a full trial on the merits, requiring the following:
1. inadequate legal remedy
2. protectable personal or property interest
3. feasibility of enforcement
4. balancing of the hardships to both parties
5. no valid defenses
Crim
Accessory Before the Fact
Vicarious Liability
SI
One who knows a crime will be committed; and aids/assists the principal.
Accessory is not at the crime scene
also do accomplice liability ( accomplice is usually at crimine scene.
crim
Accessory after the fact
vicarious liability
SI
modernly, the accesory knows of the completed crime, gives aid to hinder apprehension and is not liable of prior crimes commited by the principal but can be charged with obstruction of justice (aka misprison).
crim
Misprison
vicarious liability
si
Concealment and nondisclosure of the known felonious conduct of another. Modernly is it an obstruction of justice.
do with accessory after the fact; and possibly compounding
Crim
Compounding
vicarious liability
SI
An agreement for valuable consideration to conceal a crime
include accesory after the fact, misprison, and possibly receipt of stolen property
crim
Accomplice Liability
Vicarious Liability
SI
Liability imposed on one who aids, encourages, or counsels the principal with intent to achieve the crime.
The accomplice is liable for the crime incited/intended and other foreseeable crimes commited by the principal in futherance.
Generally present at scene of crime. (accesory is generally not present at crime)
crim
Accomplice liability
Defenses
Two
Withdrawal & Members of a Protected Class.
Withdrawal: the accomplice can effectively withdraw before the crime is committed or becomes unstoppable by repudiating encouragement or neutralizing aid. Under the MPC, the accomplice must first render the prior assitance ineffective, provide police with a timely warning, or make a proper effort to prevent the crime.
Protected Class: members of a protected class cannot be a co-conspirator or an accomplice to commit a crime designed to protect that class (e.g. statutory rape, ransom to kidnapper, blackmail money to extortionist)
crim
Solicitation
SI
Solicitation occurs when another instigates or encourages another to commit a criminal offense with the specific intent that it be committed. (no affirmative response from solicited party is required).
Merges with attempt, conspiracy, or the criminal offense. D can be convicted of inchoate crime or completed crime, not both.
If solicited person agrees to the commited crime, both parties are liable for conspiracy
crim
Attempt
SI
A direct but ineffectual act (beyond mere preparation) towards the perpetration of an intended crime, (MPC: “substantial step”), With the specific intent to commit the target crime and the apparent ability.
Use buzzword: Overt Act
Defenses: Legal/factual Impossibility; Abandonment
crim
Attempt Defenses
Legal/Factual Impossibility: Legal impossibility exists when the acts defendant intends to commit are not a crime. Factual impossibility is no defense, where due to the factual conditions unknow to the actor, the attempted crime could not be committed.
**Abandonement: ** is no longer a defense under CL. Under MPC, if the abandonement is voluntary, its a defense.
crim
Conspiracy
SI
An agreement between two or more people to commit a criminal offense or lawful purpose by unlawful means, with an overt act in the furtherance of the conspiracy. Modernly, an overt act is not required and MPC jurisdictions follow a unilateral appraoch so only one person needs a genuine criminal intent.
Defenses: withdrawal is no defense under CL, modernly it removes liability for subsequent crimes. Factual impossibility is not a defense.
crim
Pinkerton’s Rule
Co-conspirator Liability
Conspiracy sub-issues
Each conspirator is liable for all foreseeable cimes committed in futherance of the conspiracy.
crim
Wharton’s Rule
Conspiracy sub-issue
When a crime by its bery nature requires at least two people, the crime cannot be charged as a conspiracy
(i.e. bigamy, bribery, adultery)
crim
Hearsay as it applies to a Conspiracy
hearsay evidence:
An out of court statement made by the conspirator in futherance of the conspiracy may be used against any of his co-conspirators.
Termination:
After the completion of the criminal objective, acts and statements made by the defendant co-conspirators are not admissible against the defendant.
watch out for confrontation clause issues
crim
Homicide
The killing of a human by another human.
[it will either be a murder or a manslaughter]
crim
Transferred intent
Defedant may be liable if he intends the harm caused, but it causes it to a different victim or object than intended. D is charged with 2 crimes: 1) attempt (for the OG intended crime); 2) the actual resulting crime.
crim
Murder
GI
At common law, murder is the killing of another with malice aforethought. Malice can be shown by
1. intent to kill;
2. intent to commit serious bodily injury;
3. depraved heart/reckless disregard for human life;
4. felony murder rule.
Defense: Voluntary intoxication mitigates murder from 1st degree to 2nd degree, not to manslaughter
crim
Depraved Heart/ Reckless Disregard
A defendant can be convicted of CL murder if he acted with such reckless disregard for human life, there was a high degree that someone would be injured or die from his reckless behavior in light of the fact.
CL murder and also constitutes 2nd degree.
Crim
Felony Murder Rule
FMR
[BARRK: Burglary; Arson; Rape; Robbery; Kidnapping]
A defendant can be convicted of CL murder pursuant to the FMR if the killing occurred during the commission of an inherently dangerous felony.
Causation: the victim’s death must be a foreseeable result of the felony.
Ireland Rule: Assault cannot be the predicate of a felony murder conviction.
crim
FMR: Co-Felon Liabilities (3)
Sub-issues
- Redline Rule (Co-Felon Death) - Majority Rule: is that the criminal liability for the homicide of a co-felon cannot be extended to remaining co-felons.
- Proximate Cause Theory of Liability- Minority Rule: a co-felon is liable for all provacative acts that precipitate a lethal response and results in the death of a co-felon. (except if bystander accidently killed in shootout).
- Agency Theory: A co-felon is liable if the killing was done by another co-felon (agent). Note: If a felon kills a cofelon, it is not a forseeable result, likely no FMR.
crim
First Degree Murder
SI
1st degree murder is codified/statutory murder committed with the specific intent to kill and premeditation and deliberation. Addititionally, it includes the FMR.
There is premeditation and deliberation if the defendant made the decision to kill in a cool and dispassionate manner and actually reflected on the idea of killing, even if only for a very brief period, it is first degree.
crim
2nd Degree Murder
SI
2nd degree is the codified/statutory murder committed without premeditation or deliberation. Typically it includes killings when the intent is not to kill but to commit serious bodily harm or depraved heart murder.
crim
Voluntary Manslaughter
Adequate provocation in the heat of passion with no time to cool off.
Voluntary manslaughter is the killing that would be murder but for the existence of adequate provacation. Provocation is adequate if there is a (1) sudden and intense passion in the mind of an ordinary person that would cause him to** lose control; **(2) defendant was in fact provoked; (3) there was not sufficient time to cool offe, and (4) the defendant **did not in fact cool off **between the provocation and the killing.
Self defense on CL murder, 1D/ 2D - May be imperfect self defense
crim
Imperfect Self Defense on CL murder, 1st/2nd D murder
[Imperfect self defense can mitigate a murder to voluntary manslaughter.]
If the defendant murders while acting in self-defense, his criminal liability can be reduced to voluntary manslaughter if either: 1) D intiated the altercation that required self defense; 2) D honestly but unreasonably believed deadly force was necessary.
crim
Involuntary Manslaughter
GI (negligence)
[if people are not normally present, then its likely negligence on MBE]
involuntary manslaughter is the unintentional killing without malice. A killing committed with criminal negligence (grossly negligent) or during the commission of an unlawful act no constituting felony murder (i.e. D is texting while driving and kills a pedestrian).
crim
Misdemeanor Manslaughter
MisD manslaughter is murder committed during a misdemeanor
crim
Kidnapping
GI
The unlawful confinement of a person that involves either some movement of the victim or concealment of the body in a secret place.
Aggravated if person under age 14
If person is not moved/concealed it is False Imprisonment (GI).
crim
Burglary
Common Law
SI
Burglarly is the breaking and entering, the dwelling house of another, at night, with the intent to commit a felony therein.
if door is open then there is no breaking.
crim
Burglary
modernly
Burglary is the entering of a protected structure with the intent to commit a crime therein.
crim
Larceny
Merges into Robbery
SI
The taking and carrying away, the property of another, without consent (i.e. trespassory) and with the intent to permanently deprive.
If D borrows property and later decides to keep it, larceny arises the moment D decides to keep it.
Taking property wrongfully (touching it) then stealing it later is a continuing trespass.
Defense: Intent to Return (takes with intent to return unconditionally within reasonable time. Claim of Right ( takes property as repayment of debt, done openly with explanation). Mistake (if honest mistake, it may even be unreasonable but still valid defense).
crim
Larceny by Trick
SI
Obtaining **possession **of property of another by trick or deception, with the intent to permanently deprive.
NOT obtaining title (false pretenses)
crim
False Pretenses
SI
Obtaining TITLE to property of another, by an intentional false statement of past or existing fact, with the intent to permanently deprive.
Look for a two way transaction (i.e. exchanging money for a fake rolex)
crim
Robbery
SI
The taking of the personal property of another from their immediate presence, by use of force or fear, with intent to permanently deprive.
crim
Assault
SI/GI
An intent to commit a battery (attempted battery)
The intent to place another in reasonable apprehension of imminent bodily harm (GI)
aggravated is an attempt to accomplish another crime against th person or use weapon
Crim
Battery
GI
The unlawful application of force causing harmful or offensive contact of another.
The act may be intentional, reckless, or criminally negligent.
Aggravated if uses weapon, deadly injury, or victim is specially protected (e.g. police, child, woman).
Defense: consent; self/others defense but must be proportional force; crime prevention.
crim
Embezzlement
SI
[Bailment gone wrong]
Fraudulent conversion of personal property of another by one in **lawful possession **. Fraudulent conversion is when one uses another’s property beyond the scope of or inconsistent with defendant’s possessory rights.
defense: claim of right (belief that collecting debt negates intent)
crim
Receipt of Stolen Property
SI
Receiving possession and control of stolen property known to have been obtained in a criminal manner by another with the intent to permanently deprive.
If police of the true property owner know of or arranged a “sting” there cannot be receipt of stolen property. However, defedant can be convicted of attempted receipt of stolen property if she intended to receive property believing it was stolen.
crim
Forgery
SI
Making or altering a writing, with apparent legal significance, so that it is false, with the intent to defraud.
Can also be convincing another to sign a document he doesn’t realize he’s signing; or altering a document.
Uttering: offering as genuine a document known to be false with the intent to defraud. if successful, defendant may be liable for false pretenses.
crim
Extortion
si
The corrupt collection of an unlaful fee by an officer under the color of office.
Modernly, obtaining property by means of threat to do harm or to expose information. (may be future harm and victim need not be in presence).
crim
Bribery
SI
The corrupt payment received for solicitation of a private favor for an official action with the intent they commit the act.
crim
Perjury
SI
Willfully and knowingly making a false statement or material fact under oath.
crim
Insanity: List all Rules
[MIMDD]
M’naghten
Irresistible Impulse
MPC- Substantial Capacity
Durham Product Test
Diminished Capacity
An accused is entitled to aquittal if the proof establishes that
crim
M’naghten
Insanity defense
As a result of a mental defect, defendant did not know the wrongfulness of his act OR could not understand the true nature and quality of his acts.
crim
Irresistable Impulse
Insanity Defense
As a result of his mental defect, defendant was unable to control his actions or conform his conduct to the law.
crim
MPC Substantial Capacity
Insanity Defense
Defendant lacked the substantial capacity to either appreciate the wrongfulness of his conduct or conform his conduct to the requirements of the law.
crim
Durham Product Test
Insanity Defense
The crime was a product of the defendant’s mental disease or defect.
crim
Diminished Capacity
If can’t prove insanity
Defendant could also raise the partial defense of diminshed capacity which holds that mental illness short of insanity may be asserted to a specific intent crime to mitigate culpability to a lesser offense.
1st to 2nd
crim
Duress
defense
D’s crime, except an intentional homicide, is excused if committed under the threat of imminent death or great bodily harm.
crim
Entrapment
defense
majority/minority
Subjective: Majority
Defendant must show the criminal plan originated with the government and the defendant was not predisposed to commit the crime prior to the contact.
Objective: Minority
Outrageous government conduct causes a person to commit an act that they would not normally do.
crim
Affirmative Defenses
Burden of proof
Affirmative defenses must be shown by preponderance.
But putting a burden on D to DISPROVE any element of an offense is reversible error.
crim
Defense of Others
defense/justifications
A person is justified in using reasonable force to defend oneself or another when confronted by force or a threat of force that is reasonably perceived and not provoked by the same person. Majority does not require retreat. Common law requires retreat if it is safe to do so.
crim
Defense of Property
jusitification
Nondeadly force may be used against unlawful entry of the dwelling; deadly force may be used if it becomes self-defense or to prevent a felony.
Nondeadly force may be used to defend property from theft, destruction, or trespass where D has reasonable belief the property is in immediate danger and no greater force is used.
crim
Self Defense
jusitification
[could mitigate murder to manslaughter]
A person is jusitified using reasonable force to defend oneself or another when confronted by force or threat of force that is reasonably perceived and not provoked. Majority does not require retreat. Common law requires retreat if safe to do so. Proportional force only.
self defense by initial aggressor: initial aggressor effectively withdraws before the need for self-defense arises and communicates the desire to do so. Victim of the intial aggressor suddenly escalates a minor dispute into a deadly altercation.
crim
Crime prevention
jusitification
One is privileged to use reasonable force to prevent a felony or apprehend a dangerous felon if the crime was actually committed and there is reasonably belief the person arrested committed it. They may use deadly force to prevent a dangerous felony (BARRK) involving risk to human life.
arrest: officers may use reasonable force to make an arrest. Deadly force is reasonable only to apprehend or prevent escape of felon who poses threat of serious bodily harm to the officer or others.
