MEE essay checkpoints Flashcards
(82 cards)
1
Q
Kap method
A
- Read (interrogatory, facts, interogatory)
- Organize and Analyze (parties, transactions, theories of law; more precise analysis)
- Write and Weave in facts (IRAC, “The issue is… Here, … Therefore…,” answer the Q)
2
Q
Broad topics for Real Property (5)
A
1) Ownership (estates, cotenancy, LL/T)
2) Property Rights (covenants, easements, profits, license, fixtures, zoning/variance)
3) Real Estate Contracts (K law, marketability, equitable conversion, implied warranties, merger)
4) Mortgages/Security devices (type/deed/note/installment/PMM, title/lien theory, transfers, foreclosure)
5) Titles (AP, deeds, recording acts, etc)
3
Q
checkpoints for estates (3)
A
1) Does the deed language create a fee simple, defeasible fee, or life estate?
2) Is a future interest retained or created? (reversion, remainders, executory interests, or reverter)
3) Are there any rules or conduct that affect the estate or future interest? (class gifts, survivorship, waste, or cy pres, RAP, alienability, descendibility, or devisability)
4
Q
checkpoints for cotenancy (2)
A
1) Was a tenancy in common or joint tenancy created? (time, title, interest, possession with express right of survivorship?)
2) Was the joint tenancy severed (sale, partition, or mortgage)? If yes, what resulting rights?
5
Q
checkpoints for Landlord-tenant (5)
A
- What type of lease do LL and T have? What is the required notice?
- Any express agreements creating additional rights/duties?
- assignment or sublease? Who is liable for rent?
- Was a duty breached (express, implied, CL)?
- What remedies? (eviction, reduce rent, surrender, relet, sue)
6
Q
checkpoints for Restrictive covenant (3)
A
- Does the burden and/or benefit run with the land?
- damages or injunction being sought?
- Can the covenant be enforced as an equitable servitude or implied reciprocal
servitude?
7
Q
checkpoints for Easements
A
- Is the non-possessory property interest an easement in gross or appurtenant?
- created by writing, implication, prescription, or estoppel?
- Was the scope exceeded? (surcharged)
- Was there a transfer or termination?
8
Q
Broad topics for civ pro (7)
A
1) Jurisdiction and Venue
2) Law applied by fed courts
3) Pretrial Procedures
4) Jury Trials
5) Motions
6) Verdicts and Judgments
7) Appealability and Review
*think in terms of a timeline
9
Q
Jurisidiction and Venue issues (4)
A
1) Federal SMJ: diversity or FQ
2) Personal Jurisdiction: presence, waiver, contacts/fairness
3) Service and notice: proper, waiver
4) Venue, Forum nc, transfer
10
Q
Law applied by fed courts issues
A
1) State law: Erie
2) Fed CL: maritime, foreign relations, commercial/property rights/liabilities of fed govt
11
Q
Pretrial Procedures issues (7)
A
1) PI/TRO: status quo, irreparable harm, notice
2) Pleadings, amended, supplemental: Twiqbal, right/permission
3) Rule 11: signed, sanctions, safe harbor
4) Joinder of parties/claims: compulsary, permissuve, crossclaim, impleader, class actions (CANT)
5) Discovery: disclosure, sanctions, timing, privilege
6) Adjudication w/o trial: dismissal, default
7) Pretrial conference, scheduling
12
Q
Jury Trials issues (3)
A
1) Right: legal remedy, damages
2) Selection: voir dire, strikes
3) Jury instructions, objections
13
Q
Motions issues (3)
A
1) Pretrial: motion to dismiss, Summary Judgment, etc
2) JMOL, renewed JMOL
3) Post trial motions: relief from judgment, new trial, timing
14
Q
Verdicts and Judgments (4)
A
1) Defaults, dismissals
2) Jury verdicts: unanimous, general/special
3) Judicial findings
4) Claim/Issue preclusion
15
Q
Appealability and Review
A
1) Interlocutory review
2) Final judgment rule: on the merits
3) Scope of review: objections, standard
16
Q
Crim law checklist (vi)
A
i) Crimes against the person
ii) Crimes against property
iii) Crimes against habitation
iv) Accomplice liablity
v) Inchoate offenses
vi) Defenses
17
Q
Crimes against the person (vi)
A
i) Murder: unlawful killing, malice aforethought (intent, injury, reckless, felony)
ii) Voluntary manslaughter: adequate provocation, no time to cool off.
iii) Involuntary manslaughter: criminal negligence
OR during misdemeanor/non BARRK felony
iv) Battery: bodily injury or offensive touching, gen intent
v) Assault: attempted battery (spec intent) or threat (gen intent); merger if battery occurs.
vi) Other Common law Crimes Against the Person: False Imprisonment, Kidnapping, Rape
18
Q
Crimes against property (viii)
A
i) Larceny: a wrongful taking and carrying away of the personal property of another by trespass (without consent), with intent (at time of taking) to deprive permanently.
ii) Embezzlement: Requires fraudulent conversion (i.e. inconsistent w/arrangement by which D has possession) of personal property of another; (5) by a person in lawful
possession of that property; (6) with intent to defraud.
iii) Robbery (larceny + assault) requires: wrongful taking of personal property of another, from the other’s person or presence, by force or threat of immediate physical harm, w/intent to permanently deprive him of it.
iv) False Pretenses: Obtaining title by intentional false statement of fact, w/intent to defraud.
v) Larceny by trick: Obtaining possession (not title) through fraud, with intent to steal.
vi) Extortion: (blackmail) Obtaining property of another by threat of future harm to the victim or property.
vii) Receiving Stolen Property: known to be stolen, with intent to permanently deprive owner.
viii) Forgery: Fraudulently making a false writing, with apparent legal significance, with intent to make wrongful use of doc.
19
Q
Crimes against habitation
A
1) Burglary: a breaking an entry of the dwelling of another at night with the intent to commit a felony inside.
2) Arson: malicious burning of the dwelling of another
20
Q
Accomplice liability
A
with intent, aids, counsels, or encourages
21
Q
Inchoate offenses (3)
A
1) Solicitation: Enticing, advising, inciting, inducing, urging or otherwise encouraging commit a target offense.
2) Conspiracy: Two or more persons, intent to enter agreement, for unlawful purpose, act in furtherance
3) Attempt: Specific intent to commit the crime, an overt act in furtherance.
22
Q
Defenses (7)
A
A) Insanity – 4 tests for Acquittal: M’Naghten Rule; Irresistible Impulse Test; Durham Test; MPC
B. Intoxication (voluntary or involuntary)
C. Infancy (under 7= no liability; under 14 = rebuttable presumption against liability)
D. Duress (not a defense for homicide)
E. Self-Defense (non-deadly v. deadly, retreat req)
F. Defense of a Dwelling (only non-deadly force)
G. Necessity: justifies commission
23
Q
Crim law essay tips/approaches
A
- Be overinclusive in identifying crimes; classify as crimes against persons, property, or dwellings checklist
2) Note language suggesting intent/mental state like: unknowingly, without knowledge, and unbeknownst.
3) Remember to consider defenses, more than one.
4) Multiple bad actors: think conspiracy, solicitation,
accomplice liability.
v) transferred intent will likely result in the ability to charge D with multiple crimes (ex: battery and attempted battery (assault)).
24
Q
Contacts essay checkpoints (6)
A
- Formation
- Defenses to enforceability (reasons not to enforce)
- Contract content/meaning (dispute, writing, terms, default rules)
- Performance/Breach/Discharge (substantial/part performance, unforeseen events, anticipatory repudiation, warranties)
- Remedies (foreseeability, avoidability, detrimental reliance, law/equity, unjust enrichment)
- Third Party Rights (intended, incidental)
25
Formation of contracts issues (6)
Mutual assent
1. Offer inviting acceptance?
2. issues w/offer? (lapse, revocation, option contract, Firm Offer, rejection/counteroffer, preexisting duty)
3. Acceptance? (communication, performance, correspondence)
4. Acceptance issues? (mailbox rule, silence, battle of the forms)
5. Consideration, or some substitute?
6. Was promise terminated in some way?
26
Defenses to enforceability: reasons not to enforce (7)
```
A. Statute of Frauds (MYLEGS)
B. Mistake (unilateral? knowledge?
C. Illegality
D. Incapacity (mental, physical, substance)
E. Infancy
F. Unconscionability (subst/proc)
G. Duress/Fraud
```
27
Contacts essay tips/approach (4)
1) CL or UCC 2 sales: predominant purpose
2) Writings vs spoken words, see both (note: SoF = defense, not formation issue!)
3) Numbers: dates, money, ages
4) Remedies: think broadly!
28
three criteria that should be considered/discussed in evaluating whether a regulation is a taking:
(1) economic impact of the regulation on the claimant;
(2) extent to which the regulation has interfered with investment-backed expectations; and
(3) character of the governmental action.
Private use is fine, as long as for public purpose
29
Approach for exclusionary rule
A. Is Someone trying to exclude a particular piece of evidence?
B. Was the evidence illegally obtained?
C. Was there an independent source or was it inevitably going to be discovered?
30
Approach for 4th Amd Search and Seizure
Step by step approach: start w/explanation of what the 4th Amend prohibits, then explain when it applies, and then move to the spec exception/requirement at issue.
Issues:
A. Does D have a 4th Amendment right?
B. Did D have a reasonable expectation of privacy?
C. Was there government action?
D. If yes, did the government agent have a warrant?
E. Was the warrant valid and properly executed?
F. If the police did not have a warrant, did they make a valid warrantless search?
31
Considerations/possibilities for a valid warrantless search? (five steps)
1. search incident to a lawful arrest (SITLA)?
2. Was the search of an automobile? if yes, need probable cause?
3. Was the search of a plain view area?
4. Was consent given voluntarily and intelligently by someone with authority?
5. Did a stop and frisk occur? If so, need either reasonable articulable suspicion, or done while in hot pursuit or related to evanescent evidence?
32
Fifth Amd rights (3)
1) Privilege against self-incrimination
2) Right to counsel: NOT offense specific, must STOP interrogation of ANY issue
3) Double Jeopardy
33
Privilege against self-incrimination approach (4 steps)
* Miranda: establish custody + interrogation (step by step)
1. Was the defendant in custody?
2. Was there an interrogation?
3. Were Miranda warnings given?
4. Did the defendant knowingly, voluntarily, and intelligently waive their rights?
34
Double Jeopardy
Once jeopardy attaches, the D may not be retried for the same offense.
Test:
1) Same Offense: not same if crime requires proof of an additional element. Lesser included offenses usually = same offense. If separate Sovereigns ≠ same offense.
2. Exceptions permitting re-trial: (1) Hung jury; (2) Mistrial for manifest necessity; (3) Re-trial after successful appeal; (4) Breach of an agreed upon plea bargain
35
Sixth Amd right to counsel approach
A. Did D have a right to Counsel? Applies during a post charge line-up or other critical stage
B. Was D’s right to a speedy trial violated?
C. Was D’s right to a jury trial violated?
D. Was D' s right to confront witnesses violated?
36
8th Amend approach
1) Was D inflicted with cruel and unusual punishment (proportionate to the offense?
2) The Death Penalty: was D given a chance to present mitigating facts and circumstances?
Mitigating/Aggravating facts: State may not by statute limit the mitigating factors; all relevant mitigating
evidence must be admissible or the statute is unconstitutional. Only a jury and not a judge may determine the aggravating factors justifying imposition of the death penalty.
37
Crim proc approach for 14th Amd Due Process
1. Did the prosecution prove each element beyond a reasonable doubt?
2. Was there an identification which was unnecessarily suggestive?
38
Commonly connected MEE crim proc questions
● Search, Warrant, Miranda
● Terry Stop, Miranda, Exclusionary Rule
● Custody, Interrogation, Miranda, Line-up
39
to be valid, Waiver of Miranda rights must be...
knowing, intelligent, and voluntary
40
Evidence checklist
1) Presentation of Evidence
2) Relevancy and Exclusion
3) Privileges and other policy exclusions
4) Writings, recordings, photos (original/exact copy, otherwise need authentication, BER issues)
5) Hearsay admissibility: def, exceptions (availability), exemptions (nonhearsay)
41
Presentation of Evidence issues
A. Introduction of evidence: personal knowledge, refreshing memory. objections and offers of proof (timely?), lay opinions, competency (disqualifying facts" age, insanity, etc), judicial notice
B. Presumptions: burden shifting, inferences, rebuttable presumptions
C. Impeachment on cross (prior inconsistent statements; biased/interested party; felony/crime of dishonesty, specific incidents, reputation for lies, etc) or Rehabilitation on redirect (clarification of facts, reputation for truth, Prior consistent statements)
D. FRE applicable in Federal civil and criminal cases (not prelim determinations, grand juries, probation, sentencing, warrants, bail)
42
Relevancy and Exclusion issues
A. Probative value: relevance (makes a fact more or less likely to be true), 403 (probative value outweighs prejudicial effect), no unfair prejudice, confusion, or waste time
B. Authentication
C. Character etc: admissibility (civil v. criminal cases), reputation or opinion, Habit/routine, crimes or bad acts to show MIMIC (motive, intent, mistake, identity, or common plan or scheme), sexual misconduct
D. Expert testimony: qualified (specialized skill, knowledge, or training). will assist trier of fact and based on observation, facts presented at trial, or reliable information in field of expertise, Ultimate issue rule (opinion on issue is ok, but not on req mental state), reliable in the field, proper subject matter (specialized knowledge)
E. Real, demonstrative, and experimental evidence: need authentication if admitted, risk of unfair prejudice?
43
Privileges and other policy exclusions issues
A. Exclude based on privilege: Spousal immunity/marital communications; attorney-client; work product;
physician/psychotherapist-patient; 5th Amend; other
B. Exclude based on policy: insurance; remedial measures; settlement; offer to pay medical expenses;
plea negotiations; victim’s past sexual conduct
44
Evidence tips
● Consider each piece/statement separately.
● Think inclusively about admissibility, possible ways to admit, consider broad array of rules.
● Ask: Civil or criminal? Relevant? More probative than prejudicial? Purpose (impeachment or substantive)?Exclusion?
45
Confrontation clause
Always discuss this in evidence cases.
Triggered if witness isn't testifying. Applies to TESTIMONIAL statements.
For statements to police/911 calls, ask: was primary purpose to resolve ongoing emergency or assist in investigation?
46
Con law essay checklist
1) The Nature of Judicial Review: courts and jxn
2) Separation of powers: congress, exec, interbranch
3) Federalism issues: immunities and limits
4) Individual rights: PDP, SDP, EqP, takings, 1st Amd, etc
47
The Nature of Judicial Review issues
A. state and federal courts, source of federal judicial power (Art III, Section 1)
B. Jurisdiction: Art III Section 2 limits the jurisdiction of federal courts, 11th amendment and sovereign immunity prohibits suits against the government without consent
C. Judicial review in operation: Case or controversy (real and substantial dispute), issues that prohibit review based on standing, ripeness, mootness, abstention, political question, or advisory opinions; adequate and
independent state grounds
48
Separation of powers issues
A. Powers of Congress: interstate commerce (channels, instrumentalities, or activities substantially affecting), taxing and spending (common defense and general welfare), war and armed forces, 13th-15th Amends, other powers (investigatory, property, eminent domain, maritime, bankruptcy, postal, and copyright/patent)
B. Powers of the president: enforce laws, comman military, foreign relations, pardon, appointment
C. Interbranch relationships: checking powers on exec (impeachment, investigation, legislative veto, appropriations, agencies), exec checking congress (veto or not signing legislation), federal government immunity (suits, state tax, other state regulations)
49
Federalism issues
A. Intergovernmental immunities: state regulating/taxing fed govt, fed commanding the state to act (10th Amend)
B. Federalism-based limits on state authority: discriminating against out-of-state actors or substantially
burdening interstate commerce (DCC), supremacy clause, preemption, congressional authorization
50
Individual rights issues (6)
A. State action requirement: govt function
B. Due process: SDP (fundamental right infringed), PDP (life, liberty, or property; Matthews test)
C. Equal protection: fundamental right, SSP treated differently, classification, scrutiny owed
D. Takings: private property without just compensation
E. Other protections: P&I (citizens of another state), Contracts Clause (impairs existing obligation), Bills of attainder (specific individuals or groups without trial), Ex Post Facto (retroactive criminal laws)
F. First Amendment freedoms: relig, establishment, speech, press, association
51
1st Amd issuses (4)
1) Freedom of religion, separation of church and state:
a) Free exercise: punishment based on beliefs
b) Establishment: preference of relig (SS applies), or neutral (Lemon test: secular purpose, does not advance or inhibit, no excessive government entanglement)
2) Freedom of speech:
a) content-specific (SS applies) vs content-neutral (public/privare forum)
b) unprotected speech: hostile speech, fighting words, obscenity, incitement of violence
c) Commercial speech: intermediate scrutiny
d) Unconst'l b/c prior restraint, vague, or overbroad?
3) Freedom of the press: Is the reporting truthful, a matter of public interest, lawfully obtained
4) Freedom of association: govt targeting group membership
52
con law essay tips
● For each Q, determine where issue falls within the main
topics: reviewability of a case? powers of the branches?
Federalism? Individual rights?
● Keep track of the who, what, when, where, and how: who's acting (state, fed), what are they doing (reg, leg), order of the events, where, etc
● if the government is telling you what you can or cannot say: content-specific and strict scrutiny applies.
53
Torts essay checklist
1) Intentional torts: claims, defenses
2) Negligence: duty, breach, cause, limits, damages, defenses
3) Strict Liability (animals, abnormally dangerous activities, defenses) and Products liability (manufacturer/design defect, distribution chain liable, express or implied warranty, defenses)
4) Other Torts: public/private nuisance, invasion of privacy (intrusion, appropriation, public disclosure, false light), defamation (libel or slander, public/private, malice, truth), Misrepresentation (intentional or negligent), Interference with contractual/business relations
54
Intentional torts issues
A. Types: assault, battery, false imprisonment,
intentional infliction of emotional distress, trespass to land and chattels, conversion?
B. Defenses: Consent, necessity, privileges, defense of self and others, parental discipline, protection of property, or others.
55
Negligence issues (8)
A. Duty: foreseeable P, special relationship
B. Standard of care/Breach: RPP standard, other standard (children, mentally/physically impaired, professionals), Breach (conduct falling below the standard owed), statute or custom defining the duty/standard (neg, custom)
C. Problems relating to proof of fault: Res Ipsa (wouldn't normally occur w/o neg)
D. Problems relating to causation: Cause-in-fact (but-for test, substantial factor, J/S liability), Proximate cause (foreseeable
Ps, superseding or intervening causes)
E. Limitations on liability and special rules:
harm too remote/unforeseeable, superseding cause breaks chain of causation, owners/occupiers of land, NIED (zone of danger, bystander, pure economic loss)
F. Liability for acts of others: employee vs contractor, nondelegable duty
G. Damages: actual damages, Eggshell skull plaintiff, personal injury (pain, suffering, medical, lost wages) or property damages
H. Defenses: reduced or barred under a contributory fault or comparative neg. assumption of risk (knowingly, voluntarily)
56
Torts essay tips
● For broad Qs, keep
track of: actors/potential Ds, D’s
act(s) and/or intent, P’s harm.
● Have an organizational strategy when dealing with multiple claims and or Ds
● First, prima facie case, then any applicable defenses. Remember, defenses are not counter-arguments to establishing PF case.
● Comparative and contributory negligence are defenses - NOT calculation of damages. Default is pure comparative negligence
57
Agency essay checklist (5)
1) Was an agency r'ship created? (words, conduct)
2) Agent's power to bind principal (implied/express, scope, ratification)
3) Contractual liability to 3rd parties (actual/apparent authority, un/disclosed principal)
4) Liability to 3rd parties in tort (negligence, intentional, vicarious, frolic/furtherance, employee/contractor)
5) Fiduciary duties: care, loyalty (self-dealing)
58
Partnership essay checklist (6)
1) Creation: business for profit, type (formalities), agreement (provisions)
2) Conducting business: rights of partners (general/limited, profits/loses, mgmt, info). disputes (resolving), transfers of interest
3) Duties: care, loyalty, disclosure, breach/remedies
4) Liability to 3rd parties: personal, general/limited, j/s
5) Dissolution: wrongful, winding up, notice, creditors
6) Limited Partnerships: control, agreement, formation
59
Agency/Partnership essay tips
● Analyze each type of authority (express, implied, and apparent). Look for apparent authority (common)
● If fact pattern discusses an unclear/imporperly formed corporation, analyze if a partnership was created.
● Whether parties are calling it a partnership is NOT determinative (just mult people in business for profit)
● A partner has the power to dissociate, but can be wrongful, may have liability for breaches of a partnership agreement
● Agency often tested w/other subjects. e.g. partnership, torts
60
Corporations essay checkpoints (9)
1) Formation: articles (filing), bylaws, de jure/ de facto
2) Pre-organization transactions: promoter liablity, Ks to buy shares (subscriptions)
3) Piercing the Veil: alter ego, capitalization, formalities, tort
4) Financing: security equity, stock classes, dividends, repurchase
5) Managment/control: SHs, directors, officers, members
6) Fiduciary Duties: care, loyalty, breach, BJR
7) Close corps, control devices: restrictions of share transfers (reasonable, conspicuous), resolution procedures, judicial dissolution, etc
8) Organizational structure: amendments, fundamental changes (mergers, consolidations, SoSAA), notice, dissenters, dissolution, liquidation
9) SH/member litigation: direct, derivative
61
Management and Control issues (corps)
A. Shareholders: meetings (annual, notice, quorum), voting (proxy, voting agreement, straight/cumulative)
B. Directors: regular/special meeting (notice, quorum), unanimous written consent, delegation to committees, objection (dissent, abstention)
C. Officers: actual/apparent authority, liability
D. Members and managers: LLCs (presumed to be member managed), operating agreement, other types
(manager managed), majority approval/ratification
62
Corps essay tips
● Piercing the corporate veil, often a closely held corp
● Fundamental corporate change, often involves issues of procedure and interested director transactions.
● valid incorporation does not need to be addressed when we are informed that a business entity has been properly formed.
● A director’s presence at a director’s meeting does not
be physical presence; unless the articles/bylaws require otherwise; only need presence via communication that allow all participants in meeting to hear each other.
● Generally, shareholders do not owe a duty of care, except in closely held corporations b/c they have a
management role
63
Trusts essay checkpoints
1) Creation and Construction: type, creation, limits
2) Powers and Duties of Trustees: fiduciary duties of Care, Loyalty (self dealing, personal benefit, conflict of interest), good faith, managing trust res (prudent business person), Accounting
3) Modification and Termination: who is requesting?
4) Future Interests: RAP, powers of appointment
64
Creation and Construction issues (trusts)
A. Classification: express (inter vivos, testamentary, pour over, Totten, charitable, honorary, spendthrift, discretionary, implied (Resulting, constructive)
B. Creation: settlor capacity/intent, delivery of trust res, ascertainable beneficiaries, valid purpose, active duties imposed, trustee
C. Alienability of trust interests: limitation on beneficiary transfer
D. Construction problems: issues involving survivorship or gifts to classes/heirs/issue, ascertaining beneficiaries, close closing
65
Trusts essay tips
● Commonly issues: Creation and type, Beneficiaries/creditors interests, management and duties of trustee, Modification/termination of trust
● Cy pres for charitable trusts, court chooses alternative
charity (close to original purpose) when the original purpose is impossible or impracticable.
● Re termination of the trust, consider these cases: 1) trust purpose is accomplished, 2) the trust property is exhausted, 3) all beneficiaries consent, and 4) the settlor can revoke or modify
66
Wills essay checklist
1) Intestate Succession: SS, kids, others, advance, 120 hours
2) Wills: execution, codicils, revocation, revival, contracts, construction, constents
3) Family protection: elective share, after-born/ pretermitted child
4) Living wills and durable Healthcare power: signed, witnessed, eligibility, power
67
Intestate succession issues
A. Share of surviving spouse: descendants or parents of decedent?
B. Share of children: adopted and half-blood (same), nonmarital children (inherit from mother, or from father too if paternity adjudicated or proved or marriage)
C. Share of ancestors and collaterals: if no surviving spouse/descendants, see if any other kin
D. Advancements: writing and acknowledgement that the gift is advance on inheritance?
E. Simultaneous death: Did heir survive by 120 hours?
68
Wills issues
A. Execution requirements: UPC or state law (of T's domicile), required formalities, Holographic will (signed, written in testator’s hand), interested witness
B. Codicils etc: amendment or modification to will, executed w/same formalities as the will, integration of other referenced docs, incorporation by reference (existed before will was executed, intent to incorporate), other facts of independent significance
C. Revocation: by operation of law, subsequent will, or physical act
D: Revival: intent to revive the previous will? Is second will revoked?
E. Contract to make, refrain from making or revoking a will?
F. Construction problems: changes in property and/or beneficiaries affecting bequest? issues of lapse, ademption, accretions, satisfaction, Slayer Act,
disclaimers, simultaneous death, abatement, legacies, class gifts, gifts to children and issue.
G. Will contests: attack on validity, issues of age, capacity, undue influence, fraud, mistake, no-contest clauses, standing to contest.
H. Nonprobate transfers: inter vivos gifts, joint tenancy, tentative trusts, pay-on-death accounts, or any other nonprobate transfers
I. Powers and duties of personal representative: appropriate administration of estate
69
often tested key sub-topics for agency (4)
(1) the agent’s power to bind the principal;
(2) the principal’s power to ratify acts of a purported agent;
(3) an employee’s scope of employment.
(4) liability of P to third parties: vicarious (strict) liability, apparent authority
70
Rights in land (non-ownership)
```
Right to dictate how the land is to be used.
1) Covenant (PINT, damages)
2) Equitable Servitude (PIN, injunction)
Make affirmative use of the land.
1) Easements
2) Profits
3) Licenses
```
71
Checklist for easements (3)
a. Was the easement ever properly created?
b. What is the scope of the easement?
c. Has the easement ever been terminated?
72
plaintiff seeking to pierce the corporate veil must prove:
(1) shareholder “control” that effectively renders the corporate form a façade,
(2) use of the corporate form to obtain an improper or fraudulent purpose, and
(3) injury or unjust loss resulting from this wrongful use of the corporate form.
73
a “piercing the corporate veil” analysis is typically triggered by one of two fact patterns:
(1) a close corp (public corps are not pierced) in which corporate formalities are not observed and corporate and personal funds are commingled, and
(2) a parent corp and its subsidiary when there is insufficient segregation of their respective businesses, records, and finances.
74
family law essay tips
● difference between voidable and void. Voidable if: under age, impotent, intoxication, duress, fraud, and mental incompetence. Void if: Failure to meet legal requirements (no license or ceremony, close relations, polygamy, lack of capacity).
● Review factors that the court will consider in applying the BIOC standard for issues involving child support, custody, or adoption.
● The “substantial and material change in circumstances” standard is used for issues involving modification of support.
● Be sure to review relevant statutes such as the UPAA, UPA, UCCJEA, PKPA, and UIFSA
75
Family law checklist
1. Getting Married: gifts in anticipation, limitations (incest, age, bigamy), formalities, capacity, CL marriage, prenup
2. Being Married: duty to support, privacy, consortium
3. Separation, Support, Dissolution, Annulment
4. Child Custody: BIOC, etc
5. Rights of unmarried cohabitants: contract, legitimacy, paternity (presumption, establishing)
6. Parent/Child/State: emancipation, immunities, custody and control, neglect, parental fitness
7. Adoption, etc: Jxn, placements, consent, surrogacy
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issues re Separation, Support, Dissolution, Annulment
A. Fault-based/no-fault divorce: grounds, defenses,
annulment for void/voidable marriage
B. SMJ over divorce and personal jxn over property
C. Has court issued preliminary, interlocutory, or final order?
D. Division of property: separate or marital, valuation,
community property or equitable distribution state
E. Alimony/spousal maintenance: type (temporary, periodic, rehabilitative, reimbursement, lump sum)?
F. Child support: duty to support til 18 (generally), consideration of income, number children, spec needs
G. Modification of maintenance and child support: "substantial change in circumstances"
H. Enforcement of awards: attach wages, seize and sell property, and revoke licenses, UIFSA across state lines
I. Mediation or dispute resolution: by court referal
J. Separation agreements: must be mutually agreed to, fair, and voluntary, can merge into the divorce decree
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Child custody issues
A. Standard for custody: BIOC
B. Visitation: factors (parental wishes, child preferences, parent misconduct, family relationships), conditions on visitation
C. Joint custody: BIOC, parental agreement, manageability
D. Enforcement: usually thru contempt proceedings, UCCJEA, and PKPA
E. Procedural issues: jxn (child’s home state), child’s preference (if 12 years or older), counsel for child (appointment of guardian ad litem)
F. Modification requests: substantial change in circumstances, parent relocation, third party seeking visitation
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Approach for Secured Transactions
1) Is there a secured transaction (creating a security interest in collateral)? If so, what is the collateral?
2) Was a SI properly created in the collateral?
3) Was the SI properly perfected?
4) If there's more than one SI, which takes priority?
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Checkpoints for Secured Transactions
1. Applicability: UCC Art. 9 applies to SIs in personal prop, agricultural liens, sale of accounts receivable, chattel paper, negotiable instruments, promissory notes, payment intangibles, consignments, and certain lease purchase agreements
2. Categorization of Collateral: goods (consumer, inventory, farm products, equipment), Tangible intangibles (instruments, bills of lading, chattel paper), Intangible intangibles (accounts), Investment property (securities accounts), Proceeds
3. Attachment of SI: debtor has rights in collateral, SP gives value, security agreement (description, authentication, etc)
4. Perfection: provides notice of SI, nec for priority
5. Priority: unperfected (attachment), perfected (file or perfect, PMSI, BIOCOB), lien creditors
6. Default: repossession (breach of the peace), foreclosure (notice, priority, etc), Judgment, redemption
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Perfection issues
Was the security interest perfected?
1. Filing
2. Possession
3. Control
4. Automatic (temporary or permanent?)
Any special considerations for perfection?
1. After-acquired property or a future advances clause
2. Disposition of the collateral by the debtor (proceeds)
3. PMSI
4. Fixtures
5. Accessions or commingled goods
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Secured Transactions essay tips
● Steps: (1) categorize collateral, (2) attachment, (3) perfection, (4) priority, (5) default.
● If both PSs are unperfected, first to attach has priority.
● PMSI in consumer goods are automatically perfected.
● A security interest in a motor vehicle can only be perfected if the security interest is noted on the vehicles certificate of title.
● A battle of priority between secured parties is commonly tested.
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Summary for discovery (4)
mandatory disclosure (initial disclosure, expert, pre trial), scope (relevance, work product, privilege, proportionality, experts), ways to get discovery (interrogatories, depositions), getting parties to comply
