EXAM REVIEW Flashcards

Question

Requirements of a Judicial Foreclosure Sale

Answer 1

(1) public, (2) properly noticed, (3) conducted in reas manner, and (4) result in “fair” sale price (not unconscionable)

Answer 2

``` Grantee primarily liable Original Mortgagor (Grantor) SECONDARILY liable. ``` Mortgagor can be compelled to pay, but may: (1) Recover from Grantee; (2) Obtain Exoneration: court order compelling grantee to pay debt; (3) Subrogation: if mortgagor pays off debt, he may be subrogated to the mortgage and the note. He can sue grantee (in personam) or foreclose NOVATION A novation can release the mortgagor

Answer 3

Debtor borrows money and executes deed to £. Lender selects 3P, who retains deed and returns it to debtor when debt is paid. Same analysis as w/ mortgage (exc wrt foreclosure). A trustee conducting a foreclosure sale can apply its proceeds to discharge costs of executing trust. SOL: enforceable for up to 10 years after last payment is due. Death of mtgee will toll SOL for 1 year

Answer 4

(1) donor expressly, (2) donor doesn’t die as anticipated, (3) donee dies before donor, or (4) gift is necessary to pay debts of deceased donor

Answer 5

PING - P ``` EXPRESS GRANT created expressly (SOF applies, yo) ``` EASEMENT BY PRESCRIPTION 20 years IMPLIED - EASEMENT BY CONVEYANCE (1) Common Ownership: of dom and serv estates, then severance; (2) Quasi-Esmt (prior use): at severance, esmt already existed; and (3) Reas Necessity: reasonably necessary that esmt exist. EASEMENT BY NECESSITY (1) Common Ownership: of dom & serv estates, then severance; and (2) Strict/Absolute Necessity PUBLIC USE EASEMENT Public uses easement for statutory period

Answer 6

("PB SEAMEN") MERGER: if one person acquires both dom and serv estates. WRITTEN RELEASE: holder executes unilateral release that satisfies SOF. ABANDONMENT. (1) Holder stops using easement, and (2) words/conduct showing intent to abandon. ESTOPPEL: (1) holder engaged in conduct that leads owner of servient estate to believe easement isn’t going to be used any more, (2) the owner detrimentally relies on that belief, and (3) reliance was reasonably foreseeable. SEVERANCE (only for esmt appurtenant): Esmt holder’s attempt to sever easement from dominant estate will result in term’n of the easement. PRESCRIPTION: owner of servient estate interferes w/ use of esmt continuously for statutory period. SALE OF SERVIENT ESTATE TO BFP: Esmt usually runs w/ land. But sale to one w/o notice and for value will terminate esmt. END OF NECESSITY (applies only to esmt by necessity): the strict/absolute necessity ends.

Answer 7

LICENSE: personal right to enter property of another Transfer- not w/o licensor's permission Termination- death of licensor; or transfer of serv estate Revocability- freely revocable, unless (a) couple w/ interest (b) detrimental reliance PROFITS (for fun): right to enter property and take something Creation- express writing; or prescription Analysis- same as easements

Answer 8

COVENANT (PINT) (1) Touch and Concern: Servient Estate: reduces use and enjoyment of servient estate. Dominant Estate: enhances or increases use or enjoyment of dominant estate. (2) Intent: for restriction to run w/ land (bind future landowners). IMJ-proof of T&C shows intent to run. (3) Notice (only serv side): servient estate must take w/ notice of the restriction. (4) Privity: Horizontal: privity of K in connection w/ land (but not just any K wrt the land). Usually must be Grantor-Grantee (deed); Mortgagor-Mortgagee (Mgte); LL-T (lease). Vertical Privity: privity of estate. On servient side, there must be transfer of entire ownership interest to new owner. On Dominant side, any transfer is sufficient. EQUITABLE SERVITUDE (TIN) RELIEF Covenants: money damages E/S: injunction

Answer 9

("CREAM") C- Changed Circumstances - circumstances change so that reason reason for restriction no longer valid R- Express Written Release E- Estoppel- same as easements A- Abandonment M- Merger

Answer 10

LATERAL/ADJACENT SUPPORT If natural condition, S/L If Improvement, and it did not cause subsidence: S/L If Improvement did cause subsidence: Neg'l SUBJACENT SUPPORT S/L for natural conditions and improvements before agreement. Improvements made after agreement: neg'l

Answer 11

FAILURE TO DELIVER POSSESSION ACTUAL EVICTION: physical removal from all/part – total defense to any rent payment CONSTRUCTIVE EVICTION: substantial interference with use and enjoyment of property Tenant must move out within a reasonable time Total: defense to any payment Partial: rent abated SURRENDER: Tenant surrenders possession to landlord and landlord accepts DESTRUCTION: (modern) defense to any payment, unless T is at fault. OTHER CONTRACTUAL DEFENSES: frustration of purpose; impossibility; violation of quiet use and enjoyment CONTRACTUAL OFFSET Warranty of Habitability (residential leases): fit for human habitation. T does not need to move out. T must notify landlord and give reas time to fix. If not fixed, T may fix and offset amount.

Answer 12

ACTUS REA: voluntary, conscious act that causes unlawful result (or omission, if duty to act) MENS REA: Guilty state of mind CONCURRENCE: the criminal state of mind must actuate (set in motion) the act that produces the criminal result CAUSATION: actual and proximate cause Actual cause: (1) but for test; (2) substantial factor test; or (3) acceleration (only homicide) Proximate Cause: harm produced was within objectively foreseeable range of possibility (homicides additionally require CORPUS DELECTI: proof V is actually dead, and proof death resulted from a person's criminal act)

Answer 13

INTENT: Purpose or knowledge. PURPOSE: ∆ acts w/ conscious desire to produce prohibited result. KNOWLEDGE: ∆ engages in conduct he knows, w/ substantial certainty, will produce prohibited result. WILLFUL: ∆ acts w/ purpose or knowledge and moral turpitude. RECKLESS: ∆ is subjectively aware his conduct creates an unjustifiable risk, but ignores that risk and engages in the conduct. CRIMINAL NEGLIGENCE: ∆ is not subjectively aware that his conduct creates an unjustifiable risk, but a RP would have been aware of the risk created. Requires a gross deviation from the reasonable standard of care. MALICE: intentionally or w/ reckless disregard of an obvious or known risk that the particular harmful result will occur

Answer 14

SPECIFIC INTENT: ∆ intended to produce the particular result May be negated by (1) an honest, but unreasonable mistake of fact; or (2) voluntary intoxication. GENERAL INTENT: merely requires commission of an unlawful act w/ a criminal state of mind May be negated only by an honest and reasonable mistake of fact.

Answer 15

statutory (PO officer); contract (lifeguard); relationship; voluntary undertaking later abandoned; omission after creating risk

Answer 16

MALICE: Intentionally or w/ reckless disregard of an obvious or known risk that the particular harmful result will occur. EXPRESS MALICE: ∆ acted (a) w/ purpose to kill; (b) w/ knowledge conduct will kill; or (c) w/ intent to inflict grievous bodily harm. IMPLIED MALICE (a) ∆ caused death w/ extreme reckless or criminally negligent conduct that creates extreme risk manifesting a wanton disregard for human life; or (b) felony murder.

Answer 17

Main analysis: an intervening event will supersede ∆’s responsibility when event is objectively unforeseeable Foreseeable: simple negligence. Intervening causes that were dependent/responsive to ∆’s conduct (supersedes only when totally abnormal). Unforeseeable: gross neg’l/recklessness. Independent/coincidental intervening causes (will supersede unless foreseeable)

Answer 18

UNLAWFUL KILLING RIGHT TYPE OF FELONY: (1) enumerated felony or (2) a felony that is both collateral to the killing and inherently dangerous. Collateral: primary felonious purpose CANNOT be serious physical harm “Inherently Dangerous”: inevitable secondary effect of the felony is serious risk to human life in all contexts (in the abstract) RIGHT CONNECTION TO FELONY: resulting death must be a foreseeable outgrowth of the felony RIGHT TIME: harm that results in death must be btw when ∆ could be convicted of attempt and when crime terminates (∆ reaches a place of temporary safety)

Answer 19

(1) intent to maim or do bodily injury and (2) either (a) dismember victim (loss of body part), (b) disable use of body part useful for fighting, or (c) permanently disfigure (modern) (S/I)

Answer 20

C/L: (a) carnal knowledge (vaginal penetration) (other than wife); (b) against V’s will (V must resist); (c) by force or threat of force (causally connected to V’s submission). Mistake is not a defense Modern: (a) Sexual penetration of another (b) w/o V’s reasonable consent. Mistake is a defense today if reas and honest. [G/I]

Answer 21

``` CONSPIRACY Withdrawal (C/L and MPC): complete and voluntary withdrawal made timely to all co-conspirators (defense to future crimes--pinkerton) Renunciation (MPC): (a) withdrawal and (b) performs affirmative act to thwart conspiracy's success (defense to future crimes and conspiracy itself) ``` ATTEMPT: C/L: no defense Modern: voluntary and complete abandonment; legal impossibility ACCOMPLICE LIABILITY C/L: (1) put principal on notice of withdrawal and (2) nullify prior assistance (defense to future liability) Modern: either (1) nullify prior assistance, (2) provide police with timely warning, or (3) affirmative act to thwart perpetrator's success

Answer 22

SELF DEFENSE (a) ∆ is victim of unlawful threat; (b) ∆ reasonably believes he is in imminent danger of bodily harm; and (c) ∆ may use force reasonably necessary to prevent such harm. INITIAL AGGRESSOR c/l: initial aggressor must completely withdraw to use self defense Modern: may use self defense (1) upon complete withdrawal perceived by initial V; or (2) if initial V responds w/ excessive force DEADLY FORCE: only permitted in response to imminent threat of death or grievous bodily harm C/L: must retreat to the wall Modern: stand your ground

Answer 23

(a) necessary to avoid immediate threat of greater harm to persons/property, (b) no reas alternative to breaking law to avoid the greater harm; and (c) ∆ is not responsible for causing the greater threat. C/L: not defense to murder, unless to negate underlying felony for felony murder. MPC & friends: defense to any charge, even homicide if ∆ kills 1 to save many.

Answer 24

M'NAGHTEN TEST: at time of crim act (1) ∆ suffered from severe mental disease/defect; AND (2) as a result, he was “totally incapable” to know either (a) nature/quality of his act, OR (b) what he was doing was wrong. IRRESISTIBLE IMPULSE TEST: (a) ∆ has severe mental disease/defect, and (2) ∆’s incapable of controlling the impulse to commit a crime. MPC TEST: (1) ∆ has mental disease/defect; AND (2) ∆ lacked “substantial capacity” to either (a) appreciate the criminality (wrongfulness) of his conduct, OR (b) conform his conduct to the reqs. of law. DURHAM RULE (New Hampshire Rule) (Produce Rule): ∆’s unlawful act was product of mental disease/defect

Answer 25

Duress. excuses criminal conduct when (a) ∆ reas’ly believes that only way to avoid unlawful threats of great bodily harm/imminent death is to engage in unlawful conduct. Not a defense to murder, unless to excuse underlying felony in felony murder.

Answer 26

Step 1: supp’l claim must arise from same T/O as claim w/ juris. Step 2: If anchor claim predicated on Div/Juris, no S/Juris for claims by plaintiffs against persons made parties under Rules 14, 19, 20, 24, or claims by persons made parties under R19 or R24. Step 3: court may exclude S/Juris: (a) claim involves novel & complex issue of state law; (b) claim “subst’ly predominates” anchor claim; (c) court dismissed anchor claim; (d) other compelling reasons

Answer 27

(1) maritime/admiralty (2) foreign relations (3) commercial rights/liabs of federal government (4) £ rights/liabs of federal government

Answer 28

STEP 1: APPLY FEDERAL LAW. Apply valid federal statute or CXal provision that is on point. Validity: the federal law is CXal. If FRCP, it does not “abridge, enlarge, or modify any substantive right.” On Point: This is a question of interpretation. There is no spelled-out rule. STEP 2: AVOID UNFAIRNESS AND FORUM SHOPPING: If no on-point, valid federal/CXal law, federal court should follow its ordinary practices, unless doing so would lead to the preference for one court system over another (forum-shopping) or to fundamental unfairness.

Answer 29

(1) Short and plain statement of the grounds for the court’s jurisdiction. (2) short and plain statement of the claim showing that the pleader is entitled to relief: this stt must include “sufficient factual matter” to state a plausible claim that is more than merely possible. Fraud/Mistake: must describe fraud/mistake w/ particularity. (3) Demand for Judgment and Relief

Answer 30

NEW CLAIMS/DEFENSE: relates back if new claim/defense arises from same T/O as an existing claim/defense. NEW PARTIES: relates back if (a) party had notice of the action so that it will not be prejudiced in defending it; and (b) party should have expected to be named as a ∆, but for a mistake concerning the proper party’s ID.

Answer 31

(1) Manner Prescribed by a State manner prescribed by state courts where federal court sits OR state courts where ∆ will be served. (2) FRCP 4: Natural Persons: (1) deliver personally; (2) leave at ∆’s abode w/ person of suitable age and discretion who resides there; (3) ∆’s registered agent; (4) mail process w/ service waiver form—if ∆ declines to waive service, he is responsible for cost of service. Corps./P’Ships/Ass’ns: serve (1) officer; (2) managing/general agent; (3) Agent authorized to receive service—If agent is authorized by law, and law requires service by mail, process must be served both by hand and by mail (3) CATCHALL DPC requires that π took steps reas’ly calculated to inform ∆ of action against him; if ∆ has notice, SofP isn’t necessarily required

Answer 32

can join if (1) joined parties can claim relief (πs) or face liability (∆s) arising out of same T/O, and (2) common questions of law or fact

Answer 33

REQ. 1: CAN CLASS BE FORMED (“CANT”): Commonality: questions of law or fact common to the class; Adequate Representativeness: representative parties will fairly and adequately protect the interests of the class; Numerosity: class is so numerous that joinder of all members is impracticable; Typicality: claims of the representative parties are typical of those of the class, ensuring class rep will have incentive to litigate in ways that protect class. REQ. 2: PROPER FOR ADJUDICATION AS CLASS ACTION ("IGAPS") (1) Inconsistent/Impair: separate actions would create risk of Inconsistent judgments or judgments that would substantially Impair the ability of a nonparty member to protect his interests; (2) Generally Applicable: Party opposing class acted in way Generally Applicable to class; or (3) Predominate/Superior: court finds that (a) common questions of law or fact predominate over individualized questions and (b) class action is superior to other available methods for the fair and efficient adjudication of the controversy

Answer 34

For state law claims, all representative πs and ∆s must be completely diverse. However, C/As over 100 members that seek damages over $5M may enter federal court if 1 π is diverse from 1 ∆. Removal: home-state ∆ exception does not apply. Only need 1 ∆ to remove entire case

Answer 35

Non-testifying Experts: not discoverable unless (a) extraordinary need and (b) no other way to obtain such info. Expert Testifying at Trial ("ACID"): discoverable to limited extent; I- expert’s initial disclosure; C- comm’ns wrt compensation for expert’s study/test’y; D- comm’ns re data provided by att’y to expert; A- comm’ns re any assumption the attorney asked the expert to make in developing expert opinion.

Answer 36

(a) court order establishing facts in favor of moving party; (b) court order prohibiting non-moving party from presenting certain claims/defenses; (c) stay/dismissal of entire action; (d) order of contempt

Answer 37

``` MBE: GAP BOSS Grand jury Admissibility, preliminary questions of (except privilege Preliminary hearings Bail proceedings Obtaining warrant Sentencing/probation hearings Summary contempt ```

Answer 38

Substitute for evidence: court accepts facts as true w/o formal presentation of evidence TYPES 1. Facts commonly known in the jurisdiction 2. Facts capable of accurate, ready determination by sources of unquestionable accuracy TIMING before trial, after trial, on appeal EFFECT Civil: jury must accept Criminal: jury may accept

Answer 39

Relevant evidence may be excluded if its PROBATIVE VALUE SUBSTANTIALLY OUTWEIGHED by danger of * (1) unfair prejudice (2) confusion of issues (3) misleading the jury (4) undue delay (5) wasting time (6) needless presentation of cumulative evidence

Answer 40

ROSA: reputation, opinion, specific act When character is an essential element of the claim: Negligent Entrustment Negligent Hiring child custody defamation Misrepresentation/Deceit Assault/Battery, if claiming self defense

Answer 41

when ∆ opens the door with testimony of his own good character or of the victim's bad character (prosecution can then attack/bolster either). Must be pertinent character trait Special Homicide Exception: if ∆ argues self-defense, prosecution can use evidence of V's good (peaceful) character, even if ∆ doesn't open door Heavily Tested: prosecution can cross examine character witness and impeach that witness with specific acts of ∆. (must be in GF) MIMIC-KOP!

Answer 42

When it's admitted for a purpose other than to prove character: MIMIC-KOP ``` Motive Intent M- lack of mistake/accident Identity Common scheme/plan Knowledge Opportunity Preparation ``` This evidence admitted can be an act/testimony that happened before, during, or after the offense.

Answer 43

ADMISSIBLE impeachment If controverted, to show ownership or control feasibility of precaution ``` INADMISSIBLE To show negligence, culpability, design defect, or need for warning ```

Answer 44

Not severable: admission/evidence does not sever from the settlement offer Can be used to show: bias/prejudice; negate allegation of undue delay, show effort to obstruct criminal investigation/prosecution

Answer 45

Psychotherapist: actually licensed mental health specialist (especially social workers and marriage counselors) Patient: person who consults, is examined, or interviewed by a mental health specialist ``` Exceptions: commitment proceedings; court-ordered eams; when medical condition is part of the claim (Personal injury; malpractice) future crime or fraud ```

Answer 46

CASE TYPES: civil and criminal HOLDER: both spouses MARRIAGE REQUIREMENTS: valid marriage required DIVORCE/DEATH: no effect INFORMATION PROTECTED: *confidential *communications made *during marriage confidential: not intended for others; made privately communications: not observations during marriage: communication must be made during marriage WAIVER: only by both together EXCEPTIONS: Crimes/torts committed by one spouse against the other or THEIR child adversarial proceedings joint participation in a crime

Answer 47

CASE TYPES: Criminal only HOLDER: witness spouse MARRIAGE REQUIREMENTS: valid marriage required DEATH/DIVORCE: divorce terminates privilege INFORMATION PROTECTED: It protects ALL evidence, regardless of confidentiality, can be communication or observation, both before and during marriage WAIVER: can be waived by the witness spouse EXCEPTIONS: adversarial proceedings; suits involving a child of EITHER spouse

Answer 48

Testifying at preliminary hearing doesn't waive privilege at trial. ∆'s attempt to enforce PASI at preliminary hearing can't be used as evidence at trial. In civil case, jury may draw adverse conclusion from assertion of this privilege. But it cannot in a criminal case

Answer 49

(a) extraneous prejudicial information improperly brought to juror's attention (2) outside influence improperly brought to bear on any juror, and (3) clerical/secretarial errors

Answer 50

(1) bias/prejudice (2) sensory defects (3) prior inconsistent statements (4) character trait for untruthfulness

Answer 51

Always allowed: character for untruthfulness is always material and may be attacked by opinion or reputation. Once attacked, can be bolstered by opinion/reputation. BAD ACT IMPEACHMENT (Collateral Matter Rule applies) On cross examination, may use specific instances of prior unconvicted* acts (bad acts) to impeach IMPEACHMENT BY EVIDENCE OF FELONY CONVICTION If ∆ is the W (in a criminal case): admissible if "probative value outweighs its prejudicial effect" If ∆ is not W: Admissible if passes R403 IMPEACHMENT BY EVIDENCE OF CRIMEN-FALSI: evidence of crimes requiring dishonest acts or false statements are always admissible if 10 years have elapsed since conviction or release from confinement, whichever is later, evidence is admissible if its probative value substantially outweighs its prejudicial effect (and must give notice)

Answer 52

PARCH ``` P- preliminary background information A- adverse witness R- refresh recollection C- child witnesses H- hostile witnesses ```

Answer 53

(1) parties (2) essential witnesses (experts) (3) statutorily exempt people (victims) Violation of the rule results in mistrial

Answer 54

Lay witnesses must have personal knowledge VEMPS V- value of one's own property E- emotional states M- measurements P- physical states (e.g., sickly, intoxicated, fat) S- sensory descriptions (e.g., bad smell, bright blue) S- Sanity of Testator Cannot state testimony in conclusory terms or provide a legal conclusion

Answer 55

Qualified + Relevant + Reliable QUALIFIED Special skill, knowledge, education, experience, training RELEVANCE: must be relevant/helpful to factfinder ``` RELIABLE - TAPES T- Tested (methodology) A- Accepted (generally by relevant community) P- Peer Reviewed E- Rate of Error S- Standards ```

Answer 56

it is a statement not offered for its truth (1) effect on the listener (2) state of mind (3) verbal acts: independent legal significance (tortious words/transactional words) (4) legally operative facts: words accompanying ambiguous physical actions ("this is a gift") (5) impeachment

Answer 57

Admitted for substantive truth (1) ADMISSIONS (statement by party opponent) Direct adoptive (silence where RP would deny) authorized vicarious co-conspirator (C existed by POTE; D is member; STT in furtherance of C; stt made during C) (2) PRIOR STATEMENT: declarant must testify and be subject to cross examination - PINS (sworn) - PCS (rehabilitate after inference of recent fabrication) - PID (made after perceiving person)

Answer 58

(1) Present Sense Impression. (2) Excited Utterance. (3) Then-Existing Mental, Emotional, or Physical Condition (not wills) (4) Statement Made for Medical Diagnosis or Treatment. (5) Recorded Recollection (personal knowledge; made/adopted by W when fresh in W's memory; accurately reflects W's knowledge) (6) Records of a Regularly Conducted Activity. (7) Absence of a Record of a Regularly Conducted Activity. (8) Public Records. (9) Public Records of Vital Statistics. (10) Absence of a Public Record. (11) Records of Religious Organizations Concerning Personal or Family History. (12) Certificates of Marriage, Baptism, and Similar Ceremonies. (13) Family Records. (14) Records of Documents That Affect an Interest in Property. (15) Statements in Documents That Affect an Interest in Property. (16) Statements in Ancient Documents. (17) Market Reports and Similar Commercial Publications. (18) Statements in Learned Treatises, Periodicals, or Pamphlets. (19) Reputation Concerning Personal or Family History. (20) Reputation Concerning Boundaries or General History. (21) Reputation Concerning Character. (22) Judgment of a Previous Conviction. (23) Judgments Involving Personal, Family, or General History, or a Boundary.

Answer 59

``` Requires Declarant be Unavailable: PRISM P- Privilege R- Refusal I- Incapability/Incapacity S- Subpoena M- Memory ``` "Fire Fighter PAD" (1) FORMER TESTIMONY Sworn Statement, given by W in a proceeding on the same subject matter, and party testimony is being used against had an opportunity and similar motive to examining the W (2) DYING DECLARATION (civil cases; criminal *homicide cases) (3) STATEMENTS AGAINST INTEREST Statement against declarant's interest when made; and Declarant is a non-party; If W is ∆, and stt is against declarant's penal interest, corroboration is required (4) PEDIGREE (statement of personal/family history) (5) FORFEITURE BY WRONGDOING

Answer 60

criminal cases Declarant must be available for cross examination if offering testimonial evidence

Answer 61

Requires originals of writings, recordings, and photos APPLICABILITY: only applies when (1) when contents of writing are in issue, AND (2) no independent source to prove the issue (i.e., W w/ personal knowledge) NON-APPLICABILITY ("LOCS") L- lost/destroyed (unless BF) O- opponent has original and won't deliver C- collateral (not related to controlling issue) S- Subpoena (original cannot be obtained by judicial procedures) Additionally, (1) Duplicates: valid to the extent of original, unless question of duplicate's authenticity (2) Public Records (3) Summaries of Voluminous Writings: may be presented in chart, summary, calculation. the original records must be available for both parties.

Answer 62

Allows a defendant to recognize the elements of the offense and the weight of the evidence, without admitting guilt. The effect is that of a guilty plea. The defendant waives the right to confront witnesses as well as a trial by jury and appeal

Answer 63

predominant purpose rule: consider (1) the language of the K (2) nature of supplier's business (3) Relative value of goods vs. services

Answer 64

Ks intended to be final and complete expression of agreement, contemporaneous or prior parol evidence is inadmissible to contradict or supplement the terms. If parol evid explains/interprets terms: always admissible If parol evidence supplements terms: admissible unless completely integrated. If used to contradict terms: parol evidence is not admissible if completely integrated or terms are integrated EXCEPTIONS subsequent agreements collateral agreements attack on validity of agreement: failure of oral condition precedent and absence of consideration. (also, normal defenses)

Answer 65

A/R OCCURS WHEN: (1) definitive statement that the party will breach; or (2) voluntary/affirmative act that renders the party unable to perform or apparently unable to perform. IF NO A/R: if there are reasonable grounds for insecurity (i.e., reas grounds to believe other party won't perform), insecure party may demand adequate assurances. UCC: demand must be in writing Other party must respond with reasonable assurances w/in reasonable time (UCC: 30 days), or else this will constitute A/R. REMEDIES WHEN THERE'S AN A/R: (1) cancel K (2) S/p (3) ignore repudiation (continue under K) RETRACTION OF REPUDIATION (by breaching party): A/R may be retracted until insecure/aggrieved party (a) acts in reliance of the repudiation (b) positively accepts repudiation by signifying this to the breaching party, or (c) filing lawsuit

Answer 66

voidable by disadvantaged party if (1) other party knows of party's mistake, or (2) serious error No excuse in either case if party assumed mistake or error was caused by that party's extreme negligence.

Answer 67

voidable by disadvantaged party if (1) both parties are mistaken about a material fact, and (2) disadvantaged party does not bear risk of mistake under agreement

Answer 68

Excused if (1) not anticipated at time of formation, (2) objectively impossible, and (3) disadvantaged party does not bear risk under agreement

Answer 69

excused if (a) unforeseen at time of formation, (b) cost/burden beyond anticipation of parties, and (c) disadvantaged party does not bear risk under agreement

Answer 70

(a) principal purpose frustrated (b) frustration is substantial, and (c) nonoccurrence of frustrating event was basic assumption of the K (d) disadvantaged party does not bear risk under agreement

Answer 71

(1) Fraud in the Inducement (fraud wrt terms of agreement) (2) Mutual Mistake about the TERMS of the agreement (not the underlying facts) (3) Unilateral Mistake: (a) X is mistaken about the TERMS of a contract, and (b) Y knows of X's mistake. Terms: error in the words, not the underlying facts.

Answer 72

(1) misrepresentation (innocent/fraudulent) (2) Mistake (unilateral/bilateral) (3) Substantial Breach: breach that goes to the heart of the contract

Answer 73

UNJUST ENRICHMENT (restitution as common law right of action) (a) π conferred a benefit on ∆, and (b) it would be unjust for ∆ to retain the benefit Remember volunteers/officious intermeddlers are not eligible.

Answer 74

DISGORGEMENT (converted money w/ profit): applies to cases of conversion/fraud, but in any case where ∆ has profited from his wrongful behavior. Only applies to money CONSTRUCTIVE TRUST (personal/real property): applies when ∆ wrongfully acquires ownership of real/personal property. Can't use disgorgement bc it only applies to money. However, if ∆ uses converted money to purchase property, may use constructive trust π can retain property or liquidate it for cash. EQUITABLE LIENS (improvement in property): ∆'s wrongful acts don't result in accrual of cash or new title in property. In these cases, appropriate remedy is an equitable lien. Allows π to force sale of property if ∆ doesn't pay debt to π.

Answer 75

Defense to only equitable remedies (1) Unreasonable Length of Time: moving party has waited an unreasonable length of time in asserting its claim (equitable remedy); and (2) Prejudice: non-moving party has suffered prejudice because of the delay

Answer 76

Applies to both legal and equitable claims (1) Representation: moving party made representation (2) Reliance: non-moving party relied on the representation (3) Change of Position: non-moving party changed position as a result of reliance (4) Detriment: non-moving party prejudiced by change of position

Answer 77

(1) SUFFICIENT WRITING: (a) Identifies parties (b) nature/subject of contract (c) essential terms (price and date of performance) (2) SIGNED BY PARTY AGAINST WHOM ENFORCEMENT IS SOUGHT Land contracts: partially performed 1+ year contracts: fully performed *VA: must rely on your own acts of partial performance to avoid SOF; and act must be done only to perform K (i.e., or no other reason than to perform K)

Answer 78

SIGNED WRITINGS (1) writing (2) signed by party against whom enforcement is sought (3) sufficient to show K btw parties (4) quantity term MERCHANT'S EXCEPTION (1) writing sufficient against sender (signed, shows K, quantity term) (2) sent within reasonable time of contract formation (3) actually received and receiving party has reason to know of its contents (4) no written objection sent w/in 10 days by receiving party. * if objection is sent w/in 10 days, see if it satisfies subsection 1 IN-COURT ADMISSION: party admits to K's existence in testimony, pleading, or otherwise in court (K enforceable up to quantity admitted) PARTIAL PERFORMANCE: when BOTH parties partially perform (payment made and received; or goods received and accepted) SPECIALLY MANUFACTURED GOODS (a) goods specially manufactured for buyer (b) not suitable for sale to others in seller's OCOB (c) Seller has substantially begun to manufacture or has made commitments to procure the goods (d) such manufacture/commitments reasonably indicate goods are for buyer; and (e) such actions began/occurred before seller received notice of buyer's revocation

Answer 79

Seller may accept by a (1) promise, prompt/current shipment of (2) conforming goods or (3) nonconforming goods. Nonconforming goods sent as “accommodation,” is a C/O. If not sent as an accommodation, shipment of nonconforming goods constitutes acceptance, which both creates contract AND breaches it.

Answer 80

Seller expressly or impliedly warrants the goods in the following ways: (1) affirmation of fact/promise; (2) description of the goods; (3) sample, or (4) model DISCLAIMER disclaimer must be able to be read consistently with the terms creating the express warranty

Answer 81

Applies only when seller is a merchant Warrants goods are fit for the ordinary purposes for which those goods will be used DISCLAIMER Must mention the word "merchantability" If in writing, must be conspicuous can be excluded by using "as is," "with all faults," or similar language Can be excluded if defect is patent

Answer 82

(a) seller knows or should know the buyer is purchasing the products for a particular purpose (b) buyer relies on seller’s skill or judgment to select/furnish such goods. DISCLAIMERS (a) MUST be in writing, and (b) must be conspicuous Can be excluded by using "as is," "with all faults," or similar language Can be excluded if defect is patent

Answer 83

UCC parties do not agree to use common carrier If seller is not a merchant, the risk of loss passes to buyer upon tender of delivery If seller is a merchant, risk of loss transfers when goods are physically in buyer’s possession

Answer 84

UCC parties agree to use common carrier there are two options. Default is Shipment K (“FOB Seller”: Free on Board Seller): seller promises to turn goods over to carrier—risk of loss passes here. In a Destination K (“FOB Buyer”) seller promises to tender delivery at a particular destination point—this is where risk passes.

Answer 85

Terms of a K are enforced exactly. Seller breaches if the goods fail to conform in any respect, and the buyer is relieved of payment

Answer 86

(1) MISREPRESENTATION: assertion inconsistent w/ existing facts (oral/written; conduct (concealment); “half-truth”). Opinions/Guesses: not misreps; but professional opinions/guesses are misreps. (2) WRONGFUL STATE OF MIND (both parts req) (a) Scienter: ∆ made assertion knowing it to be false, or knowing he had no idea whether it was true or false. AND (b) Intent to Mislead: ∆ made assertion for purpose of misleading or knowing there was a substantial likelihood that the aggrieved party would be misled. (3) MATERIALITY (either will suffice): Objective Materiality: assertion is likely to induce a RP to enter into K. Subjective Materiality: ∆ had reason to know it was likely to induce particular aggrieved party into entering K. (4) REASONABLE RELIANCE : RP under same circs would have relied on the assertion ---------------------------------------------- For innocent misrep: substitute wrongful state of mind w/ strict liability. For negligent misrepresentation: substitute wrongful state of mind with negligence (failure to exercise reas care)

Answer 87

(a) buyer must pay K price; and (b) buyer may seek damages for any nonconformity, if seller has been seasonably notified BUYER MAY LATER REVOKE IT ACCEPTANCE After accepting, buyer may revoke if (1) nonconformity “substantially impairs” the value of the goods AND (2) EITHER (a) buyer accepted w/o awareness of nonconformity, OR (b) seller assured buyer that a known nonconformity would be cured but the seller failed to do so

Answer 88

PERFORMANCE TIME NOT YET EXPIRED: may substitute CG if seller (a) gives reas notice of his int’n to cure, and (b) tender CG before end of perf time. PERFORMANCE TIME EXPIRED: (1) seller reas grounds to believe tender would be acceptable to buyer, he may cure if seller (2) gives buyer reas notice of int’n to cure; and (3) makes tenders CG w/in reas time

Answer 89

if NCG substantially impairs value of whole K, it is breach of whole K, and K can be cancelled; if it substantially impairs the value of only this installment, buyer can reject installment, but cannot cancel the entire K if it does not substantially impair the value of this/any installment, buyer must allow seller to cure w/in a reas. time.

Answer 90

Loss of value of the breaching party’s performance PLUS incidental and consequential costs generated by breach MINUS payments received from breaching party MINUS costs saved as result of breach. EXPECTATION DAMAGES NOT AVAILABLE WHERE (1) Cost of perf greatly exceeds mkt value of perf (2) Expect’n Dmgs can’t be calculated w/ reas certainty (e.g., new bus w/ no profit hist). (3) Damages are unforeseeable (to breaching party): breaching party liable for conseq damages if, at time of K-ing, breaching party knew or had reason to know of the conseq damages that would result from breach. (4) Damages can be Mitigated: NBP must take reas efforts to mitigate. If reas mitigation fails or causes more expense, then BP will be fully liable

Answer 91

unenforceable if constitutes a penalty designed to punish a breach. Factors: (1) did parties intend clause to compensate or to penalize (2) was clause reas at time of K in relation to anticipated harm (3) was clause reas in relation to harm and losses that actually occurred due to breach

Answer 92

(a) assignor's manifestation of intent (b) assignor's present transfer of an existing right (c) vests upon notice to obligor EXCEPTIONS (a) assignment materially alters risks/obligations of the obligor (b) obligor has personal interest in rendering performance to the obligee and not 3P (c) assignment violates applicable law or public policy (4) assignment prohibited in contract: this is a breach of K by assignor, but not a basis to nullify assignee's rights) DELEGATIONS: allowed unless (a) performance is personal, or (b) prohibited in the contract

Answer 93

(a) based on valid PC, (b) magis neutral/detached, and (c) warrant describes w/ particularity thing to seize or place to search Fresh Facts: Affidavit given to magis must have fresh, relevant facts (not stale) showing fair probability Φ committed crime or evid is at particular place.

Answer 94

Ω must knock and announce their ID before entering home to execute warrant, UNLESS (a) RS doing so will endanger Ω, or (b) result in destruction of evidence or flight of Φ. VIOLATION Violates 4th Am, but does not trigger exclusionary rule.

Answer 95

Warrant Execution: If unconscionable--unreas if shocks the conscience.

Answer 96

facts and circs in Ω’s knowledge warrant a RP to conclude For Arrests: indiv in question has committed crime, or For Searches: specific items related to criminal activity can be found at particular location PC always req: (a) full-scale intrusion, (b) full-blown evid’y search, or (c) arrest

Answer 97

(“totality of the circs” test): to determine if informant provided predictive info indicating informant had insider knowledge of Φ’s crim activities, consider: (a) informant’s veracity (past tips; if informant revealed his ID); (b) basis of knowledge; (c) Ω investigation corroborates fact in tip and establishes accuracy of informant’s prediction

Answer 98

(1) belief (2) based upon articulable information that would warrant RP/reas Ω to believe that Φ has or is about to engage in criminal activity. RS can justify: (a) brief investigatory seizure (terry stop) or (b) cursory protective search (terry frisk).

Answer 99

SEIZURE OF PERSONS RP in same circs would not feel free to leave or terminate the Ω encounter. Done by (1) phys force, or (2) show of authority followed by submission. ARREST Max. Seizure, indicating initiation of crim prosecution process. SEIZURE OF PROPERTY: Ω action results in meaningful interference w/ a possessory interest

Answer 100

Brief seizure w/ sole purpose to investigate a RS a crime has or is about to be committed. Scope: Permissible only for time nec to confirm/deny suspicion

Answer 101

Must be reasonable (i.e. warrant or established exception) (all require PC) (I) ARREST WARRANT (II) WARRANTLESS ARREST (1) In Public: PC required (2) At Φ’s home: warrant is required, unless exigent circumstances: (a) arrest attempt outside and Φ retreats into home; (b) delay to secure warrant would allow Φ to evade arrest/destroy evid; (3) hot pursuit and Ω have PC to arrest. Add’ly, (a) offense must be more serious than misdemeanor; and (b) Ω cannot have unlawfully created exigency to avoid getting warrant

Answer 102

informant’s tip can create RS, if Ω verify informant’s predictions . Do not need insider access; however, must be more than current, existing information ("∆ will be at bus stop in 1 hour": sufficient.) ("∆ is at bus stop": insufficient)

Answer 103

Warrant required, unless PLAIN VIEW DOCTRINE (Virulent Attack Animals) (a) Ω are in lawful Vantage point to observe the item; (b) incriminating nature of item immediately Apparent (immediately ests. PC); and (c) Ω has lawful Access to the point of seizure (may take item w/o committing a search)

Answer 104

Must be reasonable. Reasonableness requirement triggered by INVESTIGATORY TRESPASS: (1) intrusion/trespass of Φ’s home (including curtilage, but not open fields), papers, or effects with (2) purpose of finding/gathering evid of crime INTRUSION INTO REASONABLE EXPECTATION OF PRIVACY REP exists where: (a) Φ manifests subjective expectation of privacy, by attempting to shield thing/activity from public; and (b) expectation is objectively reas—expectation society is willing to recognize animals and machines in general public use are okay!

Answer 105

("ANTHONY T. CHASES") (1) SEARCHES INCIDENT TO LAWFUL ARREST (2) AUTOMOBILES. (3) SPECIAL NEEDS EXCEPTION (4) CONSENT (5) HOT PURSUIT (6) EXIGENT CIRCUMSTANCES (7) TERRY FRISK (8) ADMINISTRATIVE SEARCH

Answer 106

- must actually and lawfully arrest - may search person and area in immediate control AUTOMOBILE SITLA If Φ is in the car or has immediately exited the car, (a) Ω may auto’ly search Φ’s person; (b) if Φ has “genuine access” to interior of the car after being placed under arrest, SITLA extends to interior of the car and all containers in interior; (c) if ∆ does not have genuine access to the interior of the car, Ω may only search car if Ω has reas belief that evid related to the crime of arrest is in car

Answer 107

automobile or any self-propelled conveyance may be searched w/o warrant if there’s PC (searched limited to PC) - may impound and search later - vehicle must be mobile

Answer 108

REQUIREMENTS: checkpoints for brief seizures/limited searches to protect public from an immediate danger (a) fixed formula that deprives ind. Ω from discretion to select subjects, (b) narrowly tailored in scope to address specific immediate threat, and (c) conducted in location/manner that minimizes civilian anxiety PROHIBITED USES: (a) general crime control, (b) disco evid, or (c) roving checkpoint that randomly stops vehicles to check license/regis (must be fixed checkpoint) AT BORDER/PORTS OF ENTRY: may conduct routine searches at permanent checkpoints: need RS for non-routing search

Answer 109

By a totality of the circumstances, the consent must be (a) knowing, and (b) voluntary Consent invalidated by fake warrant, fraud, duress, unlawful police threat SCOPE: limited by police request and indication of item police looking for consent may be limited or withdrawn at any time THIRD PARTIES: may give access to shared premises, but not private, reserved areas where ∆ has exclusive control Police reasonably relies on 3P consent when (1) person has actual authority, or (2) reasonably police officer would believe the person has actual authority reliance unreasonable if ∆ is present and objecting

Answer 110

may search private dwelling if entered after hot pursuit of fleeing suspect

Answer 111

DELAY: to get warrant will result in imminent (a) destruction of evid, (b) escape of Φ, or (c) risk to Ω or others. CRIME SCENE: Ω can search to find other V’s or remaining violent felon. but can't generally search scene

Answer 112

Cursory protective search for weapons/other items that create imminent danger to police or others, allowed if: (1) police has RS that Φ is armed and dangerous Scope: only to confirm/deny suspicion of danger. Seizure: if Ω feels something he immediately knows is a weapon/other contraband, officer may seize it w/o warrant. If manipulation is required, that is unreasonable search. Terry frisk can be extended to car or house: May search area in car where person will have immediate access to weapon. May search house to look for ambush

Answer 113

Exclusionary Rule/Fruit of the Poisonous Tree Doctrine: Only applies if (a) ∆ seeking exclusion has standing; (b) no exclusionary rule exception applies FPT: evid derived as but-for result of initial illegality is excluded as tainted fruit of the poisonous tree EXCEPTIONS (1) Independent Source: evid also obtained from independent lawful source. (2) Inevitable Discovery: inevitable disco of evid through independent lawful source. (3) Attenuation : weigh flagrancy of Cxal violation (potency of poison) against distance btw violation and evid. (4) GF Exception FPT NOT INVOKED: Miranda Warnings Knock and Announce Rule Impeachment: evidence used to impeach

Answer 114

Ω act in GF on invalid warrant, evid not excluded. GF EXCEPTION INAPPLICABLE: if reas Ω would not rely on warrant (1) Ω lie/mislead magistrate (lie is imputed to all other Ωs); (2) reas Ω would know magis isn’t neutral/detached; OR (3) warrant so facially defective no reas Ω would rely GF EXCEPTION APPLICABLE (1) search conducted in reliance on judicial precedent changed prior to case coming to trial; *(2) Ω error is isolated neg’l attenuated from the point of arrest (e.g., Ω relied on warrant that should have been purged from system by Ω).

Answer 115

6TH AM right to counsel (1) ONLY FOR DEFENDANTS: initiation of formal adversarial process (formal charge, indictment, arraignment, prelim hearing, but NOT GJ) (2) Only for critical stages of adversarial process (3) protects only against questions regarding offense ∆ is actually charged with SATISFIED: if lawyer was present during questioning, OR ∆ executes knowing (∆ knew right he was waiving) and voluntary (no coercion) waiver IDENTIFICATIONS ID evidence excluded if procedure was (a) so unnecessarily suggestive that it (b) created an irreparable risk of mistaken ID If physical lineup violates 6th amendment (1) result of lineup are per se inadmissible at trial; (2) in court identification is permissible if prosecution can show by Clear and Convincing evidence that in-court ID is independent from the inadmissible out-of-court ID

Answer 116

any proceeding has absolute privilege to refuse to testify when (a) “real and substantial fear” that person’s test’y will result in self-incrimination or contribute to criminal conviction in the U.S.A., AND (b) person asserts privilege to refuse to testify use/transactional immunity avoids PASI

Answer 117

(I) CUSTODY (a) formal arrest, or (b) RP in Φ’s position would believe freedom has been deprived to a degree analogous to formal arrest. Objectivity is key. (II) INTERROGATION (1) direct questioning, or (2) words/actions that reasonable officer would anticipate would likely result in eliciting an incriminating response. If Ω exploit a known vulnerability of Φ, it is imputed to reasonable Ω (increase likelihood of interrogation). LIMITATIONS/EXCEPTIONS (1) no FPT: confession is excluded, not evid it leads to (2) Public Safety: miranda not required in emergency situations (3) Impeachment: may be used for impeachment (4) waiver: knowing and voluntary

Answer 118

If "guarantee of collection": signer obligated to pay only if either (1) execution against principal has been returned unsatisfied (2) principal is insolvent or in an insolvency proceeding (3) principal cannot be served with process; or (4) otherwise apparent that payment cannot be obtained from principal DEFENSES: Accommodation parties may assert any defense available to principal, except insolvency, incapacity, bankruptcy If there's a material change in the collateral or underlying agreement (btw creditor-principal) that prejudices the accommodation party, obligation is discharged to the extent of the loss.

Answer 119

PUBLIC NUISANCE: (a) π has right to recover (if annoyance COULD annoy public generally, it may be brought regardless of how few people are affected); (b) π has representative authority as public official/agency; and (c) π has standing to sue (in representative capacity) PRIVATE NUISANCE: thing/activity substantially and unreasonably interferes with plaintiff's use and enjoyment of his land ∆ must be legal cause of an invasion of another's interest in the private use and enjoyment of land, and the invasion is either (1) intentional and unreasonable; or (2) unintentional, and negligent/reckless

Answer 120

(1) ∆'s publication of (2) defamatory material (3) concerning π causing reputational harm Libel Per Se Libel Per Quod Slander Slander Per Se

Answer 121

Applies to any identification (photo array, voice ID, physical lineup). Focus is reliability ID excluded if (1) so unnecessarily suggestive that (2) it created an irreparable risk of mistaken identity

Answer 122

``` CLOCK STARTS (1) formal charge or (2) arrest ``` Factors considered (1) length of delay (2) reason for delay (3) demand for speedy trial made * (4) *prejudice to ∆

Answer 123

Disclosure must be both favorable and material Favorable: triggers right material: reasonable probability of different outcome - π not required to disclose before plea bargain - destruction violates DP if intentional and in BF

Answer 124

Trigger: ∆ must be actually imprisoned for any time INEFFECTIVE COUNSEL (1) counsel's performance fell below minimum standard of lawyer conduct, and (2) effective counsel would have created reasonable probability of different outcome at trial

Answer 125

Triggered upon potential imprisonment for MORE THAN SIX (6) months for ONE charge jury pool must be fair cross section of ethnic and gender demographic of community; NOT petit jury

Answer 126

(1) jeopardy must attach; (2) same offense; and (c) by same sovereign JEOPARDY ATTACHES: Bench Trial: first witness sworn and court begins to hear evid Jury Trial: when jury is empaneled and sworn SAME OFFENSE: either (1) separate "unit of prosecution"; or (2) separate factual elements

Answer 127

deed is held by third person until obligation is repaid or default ADVANTAGES: avoids expense/delay/complexity of judicial foreclosure.

Answer 128

(a) Jeopardy Must Attach - jury empaneled and sworn in, or - when first W is sworn and court begins to hear evidence (b) same offense (c) same sovereign

Answer 129

Almost anything ``` WHEN REGULATING ACTIVITY IT DOES NOT HAVE AUTHORITY TO REGULATE (RUNG C) *Relatedness Unambiguous Not Coercive General Welfare Constitutional ```

Answer 130

POTUS may appoint high-level officials with advice and consent of senate REMOVAL: Executive Officials w/o fixed terms: POTUS can remove at will Exec Officials w/ Fixed Terms: POTUS needs cause Executive Officials w/ (Quasi-)Judicial Fxn: POTUS Requires Cause Federal Judges: POTUS Cannot remove (reqs impeachment) Special Prosecutor Investigating POTUS: POTUS cannot remove CONGRESS Congress can delegate appointment of "inferior officers" to (i) POTUS, (ii) Courts, (iii) Heads of Executive Departments Congress cannot require POTUS to get its permission to approve/remove officers Congress cannot give itself power to remove

Answer 131

Can overcome state sovereign immunity Apply of their own force Remedies imposed pursuant to these must be congruent and proportional THIRTEENTH: ban slavery (both state and individual) FOURTEENTH: Prohibits states from violating Due Process, Equal Protection, and Privileges and Immunities FIFTEENTH: Prohibits Race Discrimination in Voting

Answer 132

POTUS has 10 days to sign/veto After 10 days, acts as a signature (approved) If vetoed, 2/3 of both houses may override POCKET VETO if Congressional term expires before 10-day period, bill dies when congress goes out of session. No further action can be taken on the bill (Congress cannot override)

Answer 133

when it interferes with federal functions

Answer 134

when it is taxing (i) Unique State Government Activities, or (ii) Essential State Government Functions

Answer 135

10th amendment Federal government can't make states act in their sovereign capacities: (i) can't make legislator's pass a law; (ii) can't make state authorities enforce a federal law. This applies even if state consents or is happy to obey. Prohibitions are not commandeering when applied to either of these capacities.

Answer 136

States cannot discriminate against out-of-state economic actors State Law Discriminates on its face: Strict Scrutiny State Law Incidentally Burdens Interstate Commerce: Law must serve (i) an IMPORTANT state interest; and (ii) must not excessively burden interstate interest. EXCEPTIONS Congressional Authorization: Congress enacts a law approving of the regulation/law Market-Participant Doctrine: When states aren't acting as sovereigns, but instead, as private individuals participating in the market Law Burdens States Own Citizens: does not invoke DCC

Answer 137

CX protects only against governmental action EXCEPTIONS Public Function Theory: Private actor performing traditionally governmental act Significant State Involvement: Private Action Closely encouraged and supported by government (state is carrying out its purpose through private individuals) Thirteenth Amendment

Answer 138

SOURCES/APPLICATIONS 14th Amendment - Migrants: Right to Travel Across State lines and become a citizen of a new state Article IV - Visitors ("Comity Clause"): Protects discrimination against non-residents wrt rights/activities fundamental to the national union TEST: Discrimination must SUBSTANTIALLY relates to a SUBSTANTIAL state interest. UNCONSTITUTIONAL DISCRIMINATION Commercial Licenses: higher price for non-residents Commuter Tax: Only for non-residents Abortion: Only for residents Employment: Local employers must hire residents CONSTITUTIONAL DISCRIMINATION Recreational Licenses: Higher price for non-residents In-State Natural Resources: State-owned natural resources

Answer 139

ANALYSIS (1) Procedural Due Process, and (2) Substantive Due Process

Answer 140

Protects (a) Persons (b) from deprivations of life, liberty, and property (3) without due process of law PERSONS: All humans and corporations DEPRIVATIONS Life Liberty: liberty, physical restraint, and physical punishment Property: If state can take away without reason, there is no property interest. (property interests: public education; public employment (look to K); welfare; driver's license) DUE PROCESS (a) notice (b) hearing Adequacy of notice/hearing: (1) importance of protected interest (2) risk of error if gov't fails to provide requested additional procedural protection (3) Burden on Government in providing such protection.

Answer 141

SCAMPERD - TTV SEXUAL ORIENTATION: RBR- gov't can't criminalize CONTRACEPTION ABORTION: Regulation must not impose undue burden on woman's right to choose abortion MARRIAGE PORN/POSSESSION OF OBSCENE MATERIAL: in one's home (except: child pornography) EDUCATION: Private Education; but gov't can mandate kids get some kind of education RELATIONS: can't prohibits extended family from living in same household DEATH: right to refuse treatment (not suicide/euthanasia) TRAVEL: absolute: state to state. International: still DP right, but may be restricted VOTING (see voting card) TAKINGS (see takings card)

Answer 142

If no specific provision applicable, use general DP SPECIFIC PROVISIONS: 15th Amendment: No racial discrimination in voting 19th Amendment: No Sexual Discrimination in voting 24th Amendment: No Poll Taxes 26th Amendment: No age discrimination 18 and above ``` GENERAL PROVISION: Total Ban (strict scrutiny): certain people can't vote at all ``` Regulation of Process: Doesn't ban category, but makes it harder to vote. Government must have an IMPORTANT interest and cannot create UNDUE BURDEN on voting right.

Answer 143

If government takes land, it must pay just compensation. DIRECT GOVERNMENT APPROPRIATION gov't takes property REGULATORY TAKING: regulation is so onerous it is tantamount to a direct appropriation. Three types (1) permanent physical invasion (no matter how minor) (2) Deprivation of all Economically Beneficial Use (3) Balancing Test Weighs Toward Taking

Answer 144

RATIONAL BASIS Plaintiff must show law/conduct is NOT RATIONALLY RELATED to ANY LEGITIMATE INTEREST INTERMEDIATE SCRUTINY Government must show law/act is SUBSTANTIALLY RELATED to an IMPORTANT state interest STRICT SCRUTINY Government must show law/act is NECESSARY to further a COMPELLING state interest.

Answer 145

Plaintiff must show that law/act is not rationally related to any legitimate interest. Interest stated need not be actual governmental interest. ``` APPLICATION Default (disparate impact) Alienage (by congress) Illegal aliens (state action can't amount to immigration policy) Age Disability Economic Regulation Sexual Orientation ``` EXCEPTIONS TO DISPARATE IMPACT Intentional Disparate Impact (Strict Scrutiny): law/act adopted with intent to achieve the disparate impact (mere knowledge insufficient) Discriminatory Application: Non-discriminatory procedure applied in a discriminatory way

Answer 146

Government must show law/act is substantiallyr elated to an important state interest Stated interest must be the actual gov't interest APPLICATIONS Sexual discrimination Illegitimacy Undocumented alien children

Answer 147

General Rule: constitutional if remedying past societal discrimination

Answer 148

Government must show law/act is necessary to further a compelling state interest Stated interest must be the actual gov't interest ``` APPLICATIONS Race Total Voting Ban Domestic Travel Alienage/National Origin (by state gov't) Religion (Facial Discrimination) ``` NOTES Schools have a duty to eliminate racial segregation where implemented to remedy past discrimination in that school system or a past form of de jure segregation (forced bussing is constitutional)

Answer 149

(1) remedying state's own past discrimination: must tailor as closely as possible to benefit people actually affected by state's past discrimination (2) Diversity in Higher Education: Narrow Tailoring: race can only be one factor among many with no fixed weight (cannot be a point-based system)

Answer 150

``` C-GULC Content Neutral, Conduct Regulation Government as Speaker Unprotected Speech (HAFWOUD) Low-Value Speech (commercial; sexual) Content-neutral Time, Place, Manner ```

Answer 151

(1) PRURIENT INTEREST, COMMUNITY STANDARDS: avg person applying contemporary community standards would find the work as a whole appeals to the prurient interests (2) SPECIFICALLY DEFINED SEXUAL CONDUCT, PATENTLY OFFENSIVE: work depicts/describes in a patently offensive way (based on contemporary community standards) sexual conduct specifically defined by the applicable state law. (3) WORK LACKS SLAPS: work, taken as a whole, lacks serious literary, artistic, political, or scientific value

Answer 152

COMMERCIAL SPEECH: For speech that is (a) not false, (b) not deceptive, and (c) not related to unlawful activity, regulation must (1) serve SUBSTANTIAL gov't interest; (2) DIRECTLY ADVANCE that interest; and (3) not be more extensive than necessary to serve that interest ``` SEXUAL/INDECENT SPEECH Fully protected (strict scrutiny), but its secondary effects may be regulated if the regulation (1) serves SUBSTANTIAL governmental interest; and (2) leaves open reasonable alternative channels of communication ```

Answer 153

Regulation of conduct, creating an incidental burden on speech is constitutional if regulation (1) serves an IMPORTANT interests; (2) its incidental burden on speech is no greater than necessary

Answer 154

PUBLIC FORA: constitutional if regulation is (1) content neutral; (2) Narrowly Tailored to serve an IMPORTANT gov't interest; and (3) Alternative Channels of Comm'n left open NON-PUBLIC FORA (rational basis review) Regulation must be viewpoint neutral If forum opened "w/o restriction" for the purpose of speech, it may create a public forum.

Answer 155

prisoners' speech may be restricted if law is rationally related to a legitimate penological objective.

Answer 156

IMJ (Agency Rule): ∆'s culpability limited to killings committed by co-felons ISJ- culpability for non-felon killing another non-felon Common Law: Culpability for all homicides EXCEPTIONS: Non-Violent Co-Felon (ISJ): Exemption for non-violent co-felon (not armed; did not participate; did not have knowledge) Redline Limitation (IMJ of C/L): No culpability if non-felon kills a person with justification/excuse. Deserving Victim Exception (ISJ of C/L): no culpability for death of a co-felon

Answer 157

Nothing at C/L Modern: Abandonment: voluntary and complete abandonment Legal Impossibility

Answer 158

Withdrawal (C/L & MPC) Complete and voluntary withdrawal made timely to all co-conspirators. Defense to future crimes (under pinkerton doctrine) Renunciation (MPC): (a) withdrawal, and (b) affirmative act to thwart the success of the conspiracy. Defense from future crimes and conspiracy itself

Answer 159

DEFINITION (a) ∆ does some act (or omission) that facilitates principal's commission of the attempt/crime, including encouragement, (b) with the PURPOSE to bring about the commission fo the crime CAUSATION No causation required. Not required that accomplice's act was useful to bring about the crime. LIABILITY Culpable for crime he facilitated AND other crimes committed by the principal that are REASONABLY FORESEEABLE OUTGROWTHS of the primary crime. DEFENSE--WITHDRAWAL C/L: put principal on notice and nullify effect of prior assistance (severs only future liability) MPC: either (1) nullify effect of prior assistance; (2) provide police with timely warning of perpetrator's plan; or (3) make proper effort to thwart the crime

Answer 160

OVER $75,000.00

Answer 161

GENERALLY can remove if claim could have originally been brought there. All defendants must agree. Home state exception. INSUFFICIENT CLAIMS Counter, cross, and impleader claims cannot remove. TIMING Must file notice within 30 days after grounds to remove are apparent (i.e., SofP) If Div/Juris, case must be removed within 1 year (unless bad faith).

Answer 162

Step 1: does state Long Arm Statute allow it? | Step 2: does CX allow it? (PJ Rarely Cause Severe Mental Strain)

Answer 163

(1) ∆ has established minimum contact with teh forum state, (2) the claim arises from that contact, and (4) jurisdiction will not offend "traditional notions of fair play and substantial justice." MINIMUM CONTACTS: ∆ purposefully availed himself to the protections and benefits of teh forum state. ARISING FROM: contact must play a role in causing the lawsuit. ∆ can reasonably anticipate being hailed into court there. TRAD'L NOTIONS OF FAIR PLAY AND SUBSTANTIAL JUSTICE (a) burden on ∆; (b) interests of forum state; (c) π's interest in obtaining relief; (d) states' shared interests in efficiency; (e) shared policy interests of the states.

Answer 164

∆ does "substantial business" in the state and has "systematic and continuous contacts" with the state, so that ∆ is "essentially at home" in the forum

Answer 165

CONVENIENCE: (a) If case could have been filed in the new venue originally, and (b) transfer is necessary for convenience of parties/witnesses AGREEMENT: All parties join request to transfer INTEREST OF JUSTICE: π files in an inappropriate venue, court may either (a) dismiss the suit, or (b) transfer the case to a venue where the case could have been originally filed

Answer 166

AS OF RIGHT Complaint: 21 days after Opp/Con serves answer or a motion to dismiss Answer: 21 days after serving Answer WITH PERMISSION (1) Permission of opposing party/parties; (2) Permission of court: court considers (a) reason for amendment (party's fault); (b) if amendment will prejudice the other party.

Answer 167

1. 90 days after filing complaint 2. 21 days after receipt of complaint. 60 days if SofP is waived 3. 14 days after notice of denial

Answer 168

Case may proceed without necessary party, but must dismiss case if indispensable party can't be joined I. IS PARTY NECESSARY? (a) PArty has interest that might be impaired if left out; (b) complete relief cannot be issued in party's absence; and/or (c) current parties would be subject to duplicative/inconsistent liability II. ABILITY TO JOIN: Destroys diversity Jurisdiction or no PJ over party III. IS PARTY INDISPENSABLE? (a) Prejudice to missing party; (b) can prejudiced by be lessened by shaping the relief; and/or (c) if case is dismissed, will π be able to find relief in another forum?

Answer 169

R26(f) CONFERENCE must be at least 21 days before R16(b) conference. Must submit plan to court within 14 days of conference R16(b) Conference Court may mandate R16(b) conference, but it must issue R16(b) scheduling order. Must be issued within 90 days of SofP or 60 days of ∆'s appearance, whichever is earlier.

Answer 170

1. 14 days after R26(f) conference | 2. At least 90 days before trial

Answer 171

(a) discovery sought is unreasonably cumulative or can be obtained from a less burdensome source or in a less burdensome way, or (b) seeking party already had ample opportunity to obtain the information, or (c) burden or expense of proposed discovery outweighs its benefits

Answer 172

25 interrogatories 10 Witnesses for Depositions

Answer 173

30 days for all mechanisms Mental/Physical Examination must be sought by court order Depositions: must give reasonable written notice to all parties.

Answer 174

1. Claimant files notice of dismissal before ∆ files answer (or motion for S/J) 2. Claimant files stipulation of dismissal signed by all parties (settlement) 3. Dismissal with permission of court; but, if ∆ has filed a CC, court will not dismiss unless CC can remain pending for adjudication

Answer 175

∆ may move to dismiss action (with prejudice) if π (a) fails to prosecute case; or (b) refuses to comply with court order or any FRCP

Answer 176

Must issue written notice of π's application for default judgment SEVEN (7) days before application is heard.

Answer 177

STANDARD: No genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law TIMING: Before THIRTY (30) days after close of discovery MATERIALS: Non-movant cannot simply rely on pleadings May use pleadings, discovery, affidavits. evidence offered must be admissible at trial, even if not currently admissible.

Answer 178

FOURTEEN (14) days after the filing of the last pleading directed to the jury-eligible issue

Answer 179

Size: 6-12 Challenges for Cause: unlimited Peremptory Challenges: 3 each Verdicts must be unanimous

Answer 180

28 days after JUDGMENT (not verdict) Judge's Options: (1) Let verdict stand; (2) Grant JMOL Motion (Judge must grant/deny new trial conditionally); or (3) Order new trial (even if new trial motion not made)

Answer 181

TIMING: 28 days after JUDGMENT (not verdict) GROUNDS (1) Verdict against manifest weight of the evidence; (2) Excessive Damages: "grossly excessive" or "shocks conscience" (new trial or remittitur); (3) Procedural Error/Misconduct: (a) Error/Misconduct likely affected result, and (b) party timely objected to error (4) Newly Discovered Evidence: (a) Party discovers evidence after verdict; (b) could not have been with reasonable diligence discovered before verdict; (c) not solely for impeachment; and (d) would likely change result of trial

Answer 182

TIMING: reasonable time (after learning of grounds). If for mistake, fraud, misrepresentation: no later than 1 year GROUNDS (1) Mistake, Inadvertence, or Excusable Neglect: usually for relief from D/J (2) Newly Discovered Evidence: same analysis as with new trial (3) Fraud, Misrepresentation, Misconduct (4) Judgment is void: no SMJ or no PJ (5) Judgment Already Satisfied (6) Any other Reason that Justifies Relief

Answer 183

Must file notice of appeal with DISTRICT COURT within (1) 30 days of judgment; (2) 30 days of order that is subject of appeal; or (3) within 30 days of the denied post-trial motion Exception: 14 days of grant/denial of class certification

Answer 184

RES JUDICATA (1) Same Parties on Same Side of "V"; (2) Claim arises from same Transaction or Occurrence; and (3) Valid Final Judgment on the Merits COLLATERAL ESTOPPEL (1) Issue Litigated and Determined; (2) Issue Was Essential To the Judgment; (3) Valid Final Judgment on the Merits; and (4) Full Fair Opportunity and Incentive to Litigate

Answer 185

When probative value of the evidence SUBSTANTIALLY OUTWEIGHS the risk of unfair prejudice

Answer 186

If Grantor transfers title to property they don't currently own, but later obtains title, Grantee must go into court and assert claim to property. Grantor will be estopped from denying transfer. BUT, if grantor transfers to a subsequent BFP, the subsequent BFP will prevail over the previous grantee.

Answer 187

Applies to successors in interest SHELTER RULE: a successor in interest (who doesn't satisfy the recording statute) to a person protected by the recording statute is also protected. REVERSE SHELTER RULE: If grantee's successor doesn't prevail under the recording statute, the grantee is also not protected.

Answer 188

(1) Promise to pay debts barred by SOL, and (2) promise to pay debts discharged in bankruptcy promises must be in writing

Answer 189

ISJ- IN SOME JURISDICTIONS! promise to pay past consideration enforceable if (a) promisee conferred benefit on promisor (not 3P) and (b) benefit is material

Answer 190

(1) promise (2) reasonably foreseeable Reliance (3) actual reliance (4) injustice without enforcement

Answer 191

(1) Creditor discharges original debtor on faith of the third party; or (2) main purpose of guarantee is to protect guarantor's own economic interest ("main purpose doctrine")

Answer 192

(1) a threat (2) that is wrongful in nature (3) no reasonable choice but to succumb to threat. Pertaining to number 3, above: for economic duress, no adequate and reasonably priced substitutes for goods/services OR breach causes π to breach his own K

Answer 193

DIRECT ACTION: (1) Zone of Danger, and (2) Physical Manifestation of emotional distress. Exceptions: neg'l trasmission of telegram wrt death of a loved one; negl'l mishandling of a corpse BYSTANDER ACTION (1) π and person are closely related; (b) π was present at the scene; (c) π personally observed or perceived event; and (d) π suffered severe emotional distress

Answer 194

Gov't agency not liable for failing to respond, unless (1) π relied on agency's response; (2) special relationship; or (3) agency increased danger

Answer 195

May infer breach if (1) injury would not ordinarily occur in absence of negligence; (2) fair probability ∆'s negligence is responsible for the injury-causing event; and (c) π not responsible for injury-causing event

Answer 196

14 days, or else must get court's permission

Answer 197

must file compulsory counterclaims may file permissive counterclaims

Answer 198

Plaintiff MAY assert against 3P∆ any claim arising out of the T/O that is the subject matter of the π's claim against the 3Pπ (original defendant) Then, 3P∆ MUST assert any COMPULSORY COUNTERCLAIM it has against Original Plaintiff

EXAM REVIEW Flashcards

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