Top Rules Flashcards
(155 cards)
1
Q
Requirements of valid trust
A
“This is why I have trust issues…”
SIPTBP: Sometimes I Pick Two Bad Pussies
- Settlor – with capacity to convey (Capacity to create inter vivos trust: same req as making inter vivos gift; Capacity to create testamentary trust: same as required to make will)
- Intent – present intent to create a trust (can be words, conduct, or writing)
- Property – existing, ascertainable trust property that settlor has power to convey
- Trustee – inter vivos trust only; testamentary trust won’t fail for lack of trustee
- Beneficiaries – must be definite and ascertainable in a private express trust; charitable trust must be indefinite beneficiaries
—> charitable trust: can also be perpetual, and cy pres applies - Purpose – valid trust purpose not illegal, against public policy, impossible
Writing required for trusts of land
2
Q
Is a trust revocable?
A
UTC: presumptively yes
3
Q
What happens if trust is terminated before all distributions made?
A
Trustee distributes trust property to appropriate beneficiaries
4
Q
Do anti-lapse statutes apply to trusts?
A
Most states: no, only to wills
UPC: applies to future interests created in trust
5
Q
Requirements for pour-over provision
A
- trust clearly identified in will
- execution of trust
Traditional view: trust must be executed when will executed
Prevailing view: trust just needs to be executed before testator’s death
6
Q
If trust is irrevocable, how to revoke/modify?
A
BY SETTLOR
1. If revocable –> any act demonstrating intent to revoke trust
if irrevocable –> can only revoke with written consent of all LIVING persons with interests
BY BENEFICIARIES
1. With settlor consent: written consent by ALL living beneficiaries
- Without settlor consent: consent of ALL beneficiaries + no frustration of material purpose of trust
- Final divorce/annulment
—> UPC: divorce revokes gifts to former spouse and relatives of former spouse no longer related to decedent (including step-children) - Property gone
- Trustee/court does it because value of trust insufficient
- Merger of legal and equitable titles
7
Q
With pour-over provision in will, can trust be amended after the will is executed? What happens if trust is revoked?
A
Modern approach: yes
Common law: no
But if trust revoked –> gift fails
8
Q
What is a support trust? And can interests be assigned?
A
Trustee pays only income necessary for beneficiary’s “accustomed standard of living”; can be mandatory or discretionary.
**note: payment of all income, even if it says it’s for support, is not a support trust
Impliedly spendthrift and beneficiary can’t assign
9
Q
What is a spendthrift trust?
A
Precludes voluntary or involuntary transfer of beneficiary’s interests (but can transfer property once received). Creditors can’t reach until paid out.
10
Q
When will spendthrift trust not be enforced?
A
- settlor is the beneficiary
- against certain creditors (claims by gov, e.g., taxes; child or spousal support)
11
Q
What are the duties of the trustee
A
Duty of loyalty – act in best interests of beneficiaries (impartially)
Duty of care – administration of trust as prudent person would using reasonable care, skill, and caution
——> investment decisions examined by entire portfolio
——> includes duty to diversify
12
Q
What are the kinds of powers of appointment?
A
Power of appointment – authority granted by will or trust giving person power to designate who takes property.
General powers – power exercisable in favor of anyone
—> *general residuary clause doesn’t exercise power of appointment in favor of the beneficiary, unless there is a “blanket exercise” clause (“including property over which I have power of appointment”)
Special powers – power exercisable in favor limited class of appointees, excluding the powerholder, their estate, or their creditors
13
Q
For the purposes of intestate succession, who does not count as a child?
A
Stepchildren, unless adopted
14
Q
When is advancement an issue and how is it handled?
A
When?
It matters for intestate succession, when person dies without a will
How?
(1) Majority: transfer is presumptively not a prepayment – treat as a gift and ignore when computing recipient’s share of the estate, unless evidence that decedent intended otherwise
(2) Common law: treat as an advancement; add back in to estate and deduct from recipient’s share
15
Q
When is ademption by satisfaction an issue and how is it handled?
A
When?
It matters for will distribution, when a person dies without a will
How?
UPC: transfer is presumptively not a prepayment – unless (1) will says so; (2) testator said in writing at the time of transfer to treat as prepayment; and (3) devisee says in writing gift is a satisfaction of what was left to them in will
16
Q
Requirements of valid attested will
A
“Will Smith is definitely not gay…”
WSICW: Will Smith Is Chasing Weiners
- Writing
- Signed – any symbol works
- Intent – present intent that instrument operate as will
- Capacity – legal (18yo w/ sound mind) and testamentary capacity
- Witnesses – need at least 2; they must also sign in testator’s presence (don’t even need to know of contents, just that it’s a will)
17
Q
Requirements of holographic will
A
= unattested will that is written and signed in the testator’s own handwriting
Requirements:
1. signed
2. material portions in T’s handwriting
Changes to holographic will: handwritten changes are given effect and treated as holographic codicil
18
Q
How is an external document incorporated by reference?
A
Will must:
(1) show intent to incorporate the writing
(2) identify the writing with reasonable certainty
Writing must:
(1) exist at time will is executed
*UPC: list of tangible personal property can be prepared afterwards
19
Q
How may a will be revoked?
A
(1) Subsequent will or codicil – can be done by express revocation or by inconsistency
*new will that completely disposes of property completely revokes old will; new will that partially disposes of property revokes only inconsistent portions of old will
(2) Physical destruction – must be done with intent to revoke by T or proxy in T’s presence
(3) Final divorce/annulment – revokes gift in favor of spouse
20
Q
Two ways of “saving” a will that was revoked
A
(1) Revival — W2 revokes W1, but then W2 revoked. W1 revived?
3 approaches:
– Automatic Revival: W1 automatically revived
– No Revival: W1 not revived; must be re-executed
– UPC: if W1 fully revoked, presumptive no revival; if W1 partially revoked, presumptive revival
(2) Dependent Relative Revocation — W2 revokes W1, but then W2 invalid. W1 valid?
Standard: was revocation of W1 impliedly conditioned on validity of W2; would T have preferred W1 over intestacy?
More similar W1 and W2, more likely DDR will apply
21
Q
Who does a slayer statute bar gifts to?
A
Someone who feloniously and intentionally kills the decedent
Treat as if they predeceased the testator
22
Q
What is it called, and what happens, when gift is no longer in the estate when T dies?
A
Ademption by extinction
If a specifically devised gift –> gift adeems/fails (partial ademption may happens too)
Exceptions:
** UPC allows a specific gift that has been replaced with another similar item to act as a substitute for the gifted property — you need some indication of intent by the testator (testator just wanted beneficiary to have a gift, so the replacement will do)
** If property isn’t in estate b/c a guardian or conservator sells the property, beneficiary is entitled to the sale proceeds (if they remain)
23
Q
What happens if beneficiary disclaims
A
Disclaimer is available for HEIR and BENEFICIARY
Treat as if they predeceased T
24
Q
What is testamentary capacity?
A
Testator knows:
(1) the nature of the instrument (will) being signed (what I’m signing)
(2) nature and extent of his property (what I own)
(3) the disposition being made (where it’s going)
(4) the persons who are his family members (who it’s going to)
25
How to prove undue influence
Mountain unDEW = SODA
Contestant must show (SODA):
T was...
(1) Susceptible to UI
Alleged influencer had...
(2) Opportunity; and
(3) Disposition
.. to exert UI. And the will
(4) Appears to be product of UI
**Presumption of UI arises if there is confidential relationship b/t testator and beneficiary and beneficiary was active in making will (presumption wouldn’t arise b/t spouses w/o more)
26
How is an easement created?
PING!
Prescription
Implication (prior use)
--> prior use is apparent and continued use reasonably necessary to dominant tenement's use and enjoyment
Necessity
Grant (must comply with SoF -- be in writing and signed by servient tenement unless it last less than a year)
Note, if it's the first three, a subsequent purchaser wouldn't be protected by a recording statute (b/c these kinds of easements aren't recorded), so there's no BFP.
27
When is an easement transferable?
(1) Appurtenant
Benefit -- passes automatically
Burden -- passes automatically, unless there's a BFP who can take without the interest (which wouldn't happen for the PIN of PING)
(2) In gross)
Doesn't pass, unless commercial use
28
What is required for enforcement of real covenants and equitable servitudes
(1) Equitable Servitude
Writing (unless common scheme)
Intent to run with land
T & C
--> for burden to run: also need:
Notice
(2) Real Covenants
Writing
Intent to run with land
T & C
Vertical Privity (non-hostile nexus -- no adverse possession)
--> for burden to run: also need:
Notice
Horizontal privity
29
How are real covenants and equitable servitudes terminated
CMR: condemnation, release, merger
30
How are easements terminated
ENDCRAMP
31
Attractive Nuisance Doctrine
Premises possessor liable if he fails to exercise reasonable to care when he:
(1) knows or should know children are likely to trespass
(2) knows or should know of dangerous condition
(3) the child doesn't appreciate the risk involved
(4) the burden of remedying is slight compared to the risk involved
32
Premise possessor's duty of care
Trespassers: no duty of care
Anticipated trespassers, licensees, and invitees:
-- warn or make safe
Invitees:
-- also a duty to inspect
33
Secured Transactions: classification of tangible goods
(1) consumer goods -- goods acquired primarily for personal, family, or household use
(2) inventory -- goods held for sale or lease; goods furnished under service Ks; raw material or other consumable in business for short time
(3) equipment -- fallback option. All other goods; including goods bought for use in business
(4) farm products -- used for farming; debtor is a farmer
34
What are the requirements for attachment
(1) Security agreement
Evidenced by (a) possession, (b) control, or (c) authenticated agreement (AID):
-- signed by debtor
-- intent to create SI
-- "reasonably identify" collateral
(2) Value given by SC to debtor -- past consideration fine
(3) debtor has rights in the collateral
35
What are the requirements for perfection
(1) Attachment
PLUS
(2) one of these methods:
(a) possession
(b) control
(c) financing statement
----(1) debtor's name and address
----(2) SC's name and address
----(3) description of the collateral
(d) automatic perfection (PMSI in consumer goods, assignment of small-scale account)
--> exception if there's a motor vehicle cert. of title statute, although SIs created by dealers-debtors their inventory is perfected by filing (it doesn't hold the inventory as a consumer good)
(e) temporary perfection (20 days after date of automatic attachment in proceeds)
36
General priority order:
1. BIOC, consumer-to-consumer, authorized sale
2. possessory lien
3. PMSI: will have priority over all conflicting interests if
-- PMSI in inventory: perfection before debtor received possession + notice to others w/ interest
-- PMSI in non-inventory (e.g., equipment): perfection within 20-day period of debtor receiving possession (HYPHEN in non-inventory and 20-day)
4. Perfected SCs and Lien Creditors
-- PC/PC: first to perfect or file
-- PC/LC: first to perfect or attach/levy (i.e., becomes a judicial lien creditor)
5. Unperfected SCs
-- first to attach
NOTE: unperfected SC can have priority over PMSI who doesn't attach
37
What is BIOC and what are the requirements
BIOC -- allows buyer to take free of SI *created by buyer's seller*, even if SI is perfected
Buyer buys:
(1) in the ordinary course from person in biz of selling goods of that kind
(2) in good faith
(3) w/o knowledge the sale violates SA (but can know SA exists)
38
What is consumer-to-consumer sale and what are the requirements
Consumer-to-consumer sale — buyer takes free of a SI, even if SI is perfected
Buyer buys:
(1) a consumer good (for their personal/family/household use)
---> must be consumer goods in hands of seller too
(2) for value;
(3) before a financing statement is filed*
(4) w/o knowledge of SI;
*PMSI in consumer goods would still win if they file before buyer purchases
39
Who wins b/t consumer-to-consumer buyer and PMSI in consumer goods
Consumer-to-consumer, unless PMSI creditor files prior to buyer's purchase
40
Requirements for resale upon foreclosure, and penalties for failure to comply
REQUIREMENTS
Prior to sale:
(1) SC must give reasonable written notice to debtor, perfected SCs, and other SCs who have given notice of their interest,
(2) W/i reasonable time prior to sale [usually 10 days]
---Exception: goods are perishable or declining rapidly in value
(3) notice should include time and place of sale, the parties and the collateral, the fact that debtor is liable for deficiency, and for consumer transactions, phone number where consumer can get additional info about sale and amount owed
Sale itself:
every aspect must be "commercially reasonable"
PENALTIES
(1) damages
(2) rebuttable presumption that collateral = amount of debt owed (so no deficiency judgment)
41
Requirements for valid deed
DEED = LEAD
Deed must be “lawfully executed and delivered”
Lawfully executed =
"Hmmm, guess we have to execute our enemies now..."
RWSWD: Republicans Will Stand With Donald
(4) Reasonably identify both parties
(1) Writing
(2) Signed by grantor
(5) Words of present intent to transfer (“grant”)
(3) Description of land
Delivered =
Question of grantor’s intent that title pass immediately
Presumed NO delivery: grantor retains possession
Presumed YES delivery: grantee has possession, deed handed to grantee, acknowledged by grantor in front of notary, recorded
Acceptance presumed, but can be rejected
42
What is a quitclaim deed?
No covenants -- grantee takes whatever grantor has, with no recourse
43
What is a warranty deed?
Contains 6 covenants:
pReSeNt covenants
(1) right to convey
(2) seisin (same thing: grantor owns land he's selling)
(3) no encumbrances
FEWture covenants
(4) Further assurances -- promise to do what needed to perfect grantee's title
(5) Enjoyment (quiet enjoyment) -- promise grantee won't be disturbed on the lans
(6) Warranty -- promise to defend against reasonable claims by third parties
--> NOTE: some jxs say only future covenants run w/ the land, so allow subsequent grantees to sue only on future covenants
44
What is the implied warranty of habitability re: the sale of homes?
Builder of *new* home impliedly warrants that home is habitable
Has duty to disclose defects
45
Common law rules for which grantee has claim to land
Common law (absent recording statutes) rule:
Grantor can only convey what he has. So first grantee to take wins.
"First in time, first in right"
46
When is a mortgagor and a transferee liable on note?
Mortgagor -- always liable, always primarily or secondarily
Transferee --
--> if they "assume" the mortgage, they agree to be primarily liable on the note;
--> if they take "subject to" the mortgage, they are not liable on the note (but mortgage stays with the land, so mortgagee can still foreclose)
47
What are the four leasehold estates
(1) tenancy for years
(2) periodic tenancy (**default** if tenancy for years for 1+ yr isn't in writing)
(3) tenancy at will
(4) tenancy at sufferance
48
How is a periodic tenancy terminated
Notice --> at least equal to length of period itself
If period is year or greater:
CL: 6 months notice
Restatement: 1 month notice
49
When can a tenant sue under the implied covenant of quiet enjoyment
Actual eviction — T excluded from entire leased premises
T can stop rent
Partial eviction — T excluded from part of premises
T can abate (pay portion he continues to possess)
Constructive eviction — LL’s breach (e.g., failure to repair) renders premises uninhabitable; T can stop rent if he shows SING
(1) *S*ubstantial *I*nterference w/ tenant's use and enjoyment of premises
(2) *N*otice given to LL
(3) *G*oodbye -- tenant vacates w/i reasonable time after failure to fix
50
What are LL's duties to tenant?
(1) Implied *C*ovenant of quiet enjoyment (residential and commercial)
--> has a "C" in it, so you know this applies to *C*ommercial leases as well
(2) implied warranty of habitability (residential only)
51
When can a tenant sue under the implied warranty of habitability
Premises not fit for basic human habitation
52
Duties of tenant
(1) Pay rent. LL can due for damages (must make reasonable effort to mitigate) or treat as "surrender"
(2) Maintain premises (routine repairs)
(3) Not commit waste (affirmative, permissive, ameliorative)
53
How to create joint tenancy and what mortgage theories are relevant?
Four unities (T-TIP)
(1) time
(2) title
(3) interests identical
(4) possession (equal rights to possess the whole)
+ express reference to survivorship
Title theory (severance) v. lien theory (no severance)
54
Requirements for adverse possession
COAH
(1) Continuous
(2) Open and notorious (notice)
(3) Actual and exclusive
(4) Hostile or claim of right***
***claim of right — i.e., the adverse possessor entering the land under an invalid deed. A person entering under an invalid deed from grantor does NOT mean grantee enters w/ grantor’s consent (presume deed is invalid b/c grantor doesn't want grantee there)
55
When does a BFP lose despite complying with recording statute?
Someone who claims title by operation of law (b/c there is no document that interest holder could record)
E.g., adverse possessor, or easements obtained by implication (prescription, implication, necessity)
56
Requirements for marriage and common law marriage
Official Marriage
(1) *No legal impediments
(2) *Capacity to consent
(3) License + (4) Ceremony
Common Law Marriage
(1) *No legal impediments
(2) *Capacity to consent
(3) Cohabitation + (4) Holding out publicly as married
57
Grounds for no-fault divorce
Irreconcilable differences, incompatible, or living apart for continuous period
58
Defenses to fault divorce
Collusion (mfr grounds for divorce)
Connivance (consent to other spouse’s misconduct)
E.g., swingers in adultery case
Condonation (forgiveness w/ full knowledge of wrongs)
Recrimination (filing spouse violated one of the grounds)
59
How is custody determined? How can it be modified and by whom?
Determined: best interest of the child
Modified: substantial change in the circumstances, with BIOC as overriding concern
Entered/modified by whom: home state, and if no home state, state with "significant connection" (or temporary emergency jx if necessary)
--> home state: state where child has lived with parent/guardian for 6 consecutive months prior to custody proceeding; home state continues to have exclusive jx for 6 months after child leaves state, so long as a parent/guardian still lives in the home state
--> significant connection: State where child and at least one parent/guardian has significant connection + there is substantive evidence about child available in the state
60
How is child support determined? How can it be modified and by whom?
Determined: numerical guidelines, accounting for ability to pay and needs of child
Modified: substantial change in the circumstances (voluntary reduction in income typically doesn't count)
Entered/modified by whom: state that originally issued order has exclusive jurisdiction to modify if any party (child or either parent) remains a resident of forum, unless all parties consent to jx of another forum
61
Relocation of child requirements
Usually permitted if in BIOC, and not intended to thwart other parent’s relationship
Balance:
-- Benefits of move to children and parent
-- Burden on visitation to noncustodial parent
62
What can third-party get custody?
Custody by parent generally presumed in BIOC;
3P would have to show parent is unfit and parent's continued custody would be highly detrimental to the child
63
What is the effect of adoption
Adoption severs the legal parent-child relationship with the biological parents, including their rights to custody, visitation, financial obligations, and staying in touch with the child.
64
When can a third party get adoption?
Involved parent who demonstrates "full commitment to the responsibilities of parenthood" will likely be able to successfully oppose adoption
65
Three major categories of separate, as opposed to marital property
BIG
Before-marriage acquired property
Inheritance
Gift to one party
66
Requirements for enforcement of premarital agreement
"Before we get married, you should know... I'm gay"
VFS: Vagina Fucking Sucks!
(1) Voluntarily made
(2) Full disclosure of assets
(3) Substantively fair
* no enforcement of child custody/support unless in BIOC
67
How is alimony determined and how can it be modified?
Determined: court has a lot of discretion
Factors: ability to pay, needs of recipient, marital contributions, marital duration (sometimes marital fault is considered)
Modified: substantial change in the circumstances (voluntary reduction in income typically doesn't count)
68
Does court need PJ over party to enter divorce
Divorce decree: only need divorce over party who is applying; jx ok if party domiciled in state
Property rights/spousal support/child custody/child support: need jx over both parties
69
Business record exception to hearsay
Record of act, event, opinion, or diagnosis:
(1) made at or near the time of event
(3) by a person with knowledge of the event, or based on information of someone with knowledge
(2) in the course of a regularly conducted biz activity (non-profit ok) **Company is the business of [activity]; they must regularly keep records regarding [activity]**
(4) and making the record was regular practice of that activity
Conditions must be shown by the testimony of the custodian or *another qualified witness*, or by a certification
Most courts say can't be used against defendant in a criminal case
70
Public records exception to hearsay
Statement/record that describes
(1) the office's activities **or**
(2) a matter observed while under a legal duty to report (doesn't include police observations in criminal case) **or**
(3) in civil case (or against *gov* in criminal case), factual findings from a legally authorized investigation
Can't be used against defendant in a criminal case
71
Recollection recorded
(1) Record was made while fresh in W's memory
(2) But now W can't recall subject matter fully
72
Nonhearsay
Statements made or attributable to party opponent
Prior statements of testifying witnesses
-- prior ID
-- prior inconsistent statement made under oath
-- prior consistent statement offered (a) to rebut claim that W has motive to lie; or (b) to rehabilitate W after impeachment on some other ground
73
Requirements of lay witness
Opinion is based on personal knowledge. Must be
(1) Rationally based on perception
(2) Helpful
(3) Not based on scientific, technical, or specialized knowledge
74
Requirements of expert witness
**Qualification**: Witness qualified as expert by knowledge, kill, experience, training or education
**Opinion** must be based on *reasonable probability*, and is:
(1) based on scientific, technical, or specialized knowledge
(2) helpful to factfinder
(3) based on sufficient facts or data
(4) a product of reliable principles and methods, and reflects application of those principles and methods
**Reliability** = *TRAP*
Tested methodology
Rate of error
Acceptance by experts
Peer view and publication
75
When is character evidence admissible in civil and criminal cases, and how can it be proved?
Civil: only when character is an essential element (defamation, negligent hiring, child custody)
--> proved by R, O, or S!!!
--> but HABIT and MIMIC is not considered character evidence, and can be used in civil as well as crim cases
Criminal: only when D opens the door (R or O)
--> P can rebut with R, O, or S on cross (no extrinsic)
76
Difference b/t offer to settle and offer to pay medical expenses
Offer to settle
--> not admissible to prove liability or amount of disputed claim
* admissions of fact companying negotiation NOT admissible
Offer to pay medical expenses
--> not admissible to prove liability
* admissions of fact companying offers IS admissible
77
What are some exceptions to the exclusionary rule?
A bouncer saying "You're EXCLUDED from this club!"
GGMII: Get Going Mister, I'm Irritated
Inadmissible evidence not excluded when ...
(1) Grand jury -- used in grand jury, civil proceedings, parole, other non-criminal proceedings
(2) Good faith reliance on warrant -- obtained by police in reasonable reliance on facially valid warrant that's later found to lack PC
(3) Miranda violation -- evidence that is fruit of inadmissible confession is admissible unless failure to give Miranda warnings was purposeful
(4) Impeachment -- used to impeach the defendant
--> e.g., inadmissible Miranda/6A confession + inadmissible evidence from illegal search can be used to impeach the DEFENDANT'S statements
--> But **INVOLUNTARY** cannot be used for any purpose
(5) Intervening act of free will -- D voluntarily provides evidence
**NOT AN EXCLUSIVE LIST: there's also knock and announce, independent source, inevitable discovery, etc.
78
Can police use arrest warrant to arrest someone in third party's home?
No --> need search warrant
Arrest still valid, but no evidence can be used against third party.
79
When can police pull a car over?
Can stop car w/ *reasonable suspicion* that law has been violated
Can do this pretextually if they believe there’s another crime for which they lack RS
80
Which warrant exceptions require some form of probable cause?
"This PC nonsense is CAP"
(1) Constitutional arrest
--> probable cause for arrest, then can search areas in person's immediate control
****** if person in car arrested, can also search passenger compartment if *reasonable belief* that (a) person might access vehicle or (b) evidence of the offense leading to arrest might be found
(2) Automobile Exception
--> if probable cause automobile contains evidence of ANY crime, can search whole vehicle where evidence might be found
(3) Plain View
--> if police are lawfully positioned and see something they have probable cause to immediately believe is evidence of crime, they can seize it
81
When can you do a Terry Stop and Frisk
REASONABLE SUSPICION / BELIEF
Stop: If PO has *reasonable suspicion* based on articulable facts of criminal activity → PO may briefly detain person for the purpose of investigating
Frisk: If PO *reasonably believes* suspect has a weapon → PO may conduct patdown of outer clothing and body to check for weapons
****** if car is stopped, then if PO reasonably believes driver/passenger has weapon, can frisk suspected person and search the passenger compartment in areas where weapon may be placed
Seizure (weapon or contraband): if frisk gives rise to *reasonable belief*, based on plain feel, that item is weapon **or contraband**, officer can reach into clothing and seize it
82
When does 6A right attach? What does it prohibit? Is it offense-specific?
Once formal adversarial proceedings have begun (usually, when D charged) -- L req'd at all critical stages thereafter
Police cannot deliberately elicit incriminating statements outside presence of counsel UNLESS D waives his rights (e.g., by speaking voluntarily)
Offense specific -- yes. Police can question on unrelated, uncharged offenses
83
What constitutes custodial interrogation for Miranda purposes?
Custody: restraint on freedom where reasonable person wouldn't feel free to terminate encounter + environment presents same inherently coercive pressures as state house questioning
Interrogation: questions reasonably likely to elicit incriminating responses
84
Authentication standard
"sufficient evidence to support a finding" that evidence is what proponent claims it to be
85
What is accomplice liability and what does it require?
It is a theory through which D is liable for the SUBSTANTIVE OFFENSE
requires
(1) intent to assist, aid, encourage
(2) intent that primary party commit the crime
86
What are the three inchoate crimes and what do they require?
(1) Conspiracy -- intent that crime is committed + intent to enter into agreement + overt act in furtherance of conspiracy (mere preparation enough)
****agreement --> common law (two words) = two guilty minds; MPC = one guilty mind
****Wharton rule: Where 2+ people needed to commit offense, no conspiracy unless the agreement involves another not essential to crime, e.g., guilty of dueling, no conspiracy unless 3rd person existed)
(2) Attempt -- intent that crime is committed + overt act beyond mere preparation (CL: "dangerously close"; MPC: "substantial step")
(3) Solicitation -- intent that crime is committed + encouraging someone to commit it
87
What is duress and when can it NOT be used as a defense? (criminal law)
force or threat of force creates reasonable belief that, if D didn't commit crime, he or 3P would suffer imminent death or seriously bodily harm
NO DEFENSE to *intentional* homicide, but may be defense to underlying felony on felony murder
88
what are the insanity defenses:
(1) M'Naghten -- I don't know what I did; or I didn't know it was wrong
(2) irresistible impulse -- I couldn't help it
(3) MPC -- I didn't know it was wrong, or I couldn't help it
(4) Durham (but for)
89
What is common law murder?
Killing committed with malice aforethought, which is:
(1) intent to kill or commit serious bodily harm
(2) reckless indifference to an unjustifiably high risk to human life (abandoned or malignant heart)
(3) Killing committed during BARRK felony (death must be foreseeable)
90
What is voluntary manslaughter?
Murder except for
(1) adequate provocation without cooling off period
(2) imperfect self-defense: (a) D was initial aggressor; or (b) unreasonably believed deadly force was necessary
91
What is involuntary manslaughter?
Killing committed with:
recklessness -- conscious disregard of aware of a substantial and unjustifiable risk
criminal negligence -- failure to be aware of a substantial and unjustifiable risk
or killing during course of misdemeanor / non-BARRK felony
92
What is the common statutory scheme to murder?
First: murder that is deliberate and premeditated
Second: all other murder (common law murder)
--> murder for which there was no premeditation b/c voluntary intoxication
Felony murder (death must be foreseeable)
93
What are robbery and extortion?
Robbery = taking of personal property of another from another’s person or presence by force or threats of immediate force with intent to permanently deprive
Extortion = obtaining property by threat of harm or exposing information
94
For both crim and torts, does deadly force in self-defense require a duty to retreat? Is it available to first aggressor?
Duty to retreat: generally no duty to retreat (modern trend imposes duty unless you're in your home)
First aggressor: generally can't recover, unless other person escalates dramatically (responds to non-deadly force by using deadly force)
95
What is the quorum for a shareholders meeting?
Majority of all outstanding shares entitled to vote
96
What is the quorum for a directors meeting?
Majority of all directors
97
When must notice be given for a meeting? (SH and director)
Director's meeting: only for special meetings
SH: for all meetings; purpose of meeting must be given for special meetings
98
What standard is applied when director breaches a duty of care?
BJR
P must rebut presumption that fiduciary performed their duties
(1) in good faith;
(2) with the care that an ordinarily prudent person in a like position would exercise under similar circumstances; and
----> i.e., must be informed
(3) in a manner reasonably believed to be in the best interests of the corporation
99
What is the corporate opportunity doctrine and when does it apply?
It's a kind of duty of loyalty breach.
Director cannot usurp corporate opportunity; must first tell Board about it and wait for Board to reject
Corporate opportunity — one in which corp would have interest or expectancy;
---> closer it is to corp’s line of business, more likely it is to be CO
100
what is a defense to a breach of duty of loyalty?
(1) Approval by a majority of informed and disinterested shareholders or directors
(2) Transaction was judged to be fair at the time of the transaction
101
When can (or must) a corporation idemnify?
Must -- director successful in defending on the merits or otherwise
Can -- director unsuccessfully defended, but majority of disinterested Board thinks director didn't breach duty of loyalty
Can't -- director held liable to corp or received improper benefit
102
When can articles eliminate personal liability for director, and to what extent?
Articles can eliminate/limit personal liability for monetary damages for breaches of duty of care (unless director acted in bad faith)
103
What are the requirements for a proper proxy, and how long do they last?
Proxies — must be in writing, signed by record SH, directed to secretary of corporation, and authorizing another to vote the shares
Proxy good for 11 months
104
To what entities is a derivative suit relevant? How can such actions be brought (i.e., what req's)?
Corporations AND LLCs
Requirements:
standing + demand
(1) Standing
(a) SH/member must be SH/member at time claim arose and throughout litigation
---> Can be SH who inherited from SH who owed stock when claim arose
(b) SH/member must fairly and adequately represent corp’s interests
(2) Demand requirement
SH must make written demand on corp; can’t sue until 90 days after demand unless waiting would cause irreparable injury or corp rejects demand
No demand required if demand would be futile — i.e., majority of directors conflicted or there is substantial likelihood they are liable on the claim
**Note: court can dismiss if not in best interests of the corporation
105
Against which entitles may a SH pierce the corporate veil, and what is the effect?
*closed* corporations and LLCs
"SHs abused the privilege of incorporating and fairness requires holding them liable" (commingling of funds, failing to follow formalities, severe undercapitalization)
Effect: SH or members who participated in the wrong are personally liable
106
What is wrongful disassociation is an LLC or partnership, and when does it lead to dissolution?
*What is wrongful disassociation?*
Any of these prior to term (if term partnership)
(1) withdrawal (I’m leaving)
(2) expulsion (you’re leaving)
(3) partner’s bankruptcy (you’re broke)
(4) any dissociation in breach of express terms of agreement
*When does it lead to dissolution in partnership?*
(1) In at-will partnership, withdrawal triggers automatic dissolution
(2) in term partnership, dissolution if all partners consent, if 1/2 remaining partners consent following wrongful dissociation, or if agreement so states
*When does it lead to dissolution in LLC?*
(1) event in operating agreement occurs
(2) consent of all members
(3) 90 consecutive days with no members
107
What is an offer (contracts)?
Communication must create reasonable expectation in offeree that offeror is willing to enter into K on definite/certain terms
108
What is a merchant firm offer?
merchant, in writing and signed, giving assurances that offer will be held open
109
What is an acceptance/rejection? (contracts)
A manifestation of assent (or NOT to assent) to the terms of the offer made in a manner invited by the offer
110
What is consideration?
Bargained-for exchange of a legal detriment and a legal benefit
111
What is promissory estoppel and when does it exist?
Substitute for consideration
(1) promise
(2) justifiable and foreseeable reliance
(3) enforcement necessary to avoid unjust result
112
What is an exception to the perfect tender rule and substantial performance?
Divisibility of contract—contract is apportionable and parties would have contracted for each part separately
Performance of each part entitles a party to payment for that part
113
When can a buyer revoke after accepting goods?
Buyer can revoke (and recover full K price)
w/i reasonable time after acceptance and before substantial change in goods . . . if buyer accepted goods . . .
(1) on reasonable belief that defect would be cured but hasn’t; OR
(2) b/c defects were concealed
(3) b/c seller assured goods conformed
114
What are the two ways that breach may arise because of other party's indication it may not perform?
(1) Anticipatory repudiation — party *unequivocally* indicates he will not perform before performance by either party. Gives rise to immediate claim for breach
(2) Prospective inability or unwillingness to perform — party with *reasonable doubts* as to other party’s performance can demand adequate assurances of performance in writing. Can SUSPEND PERFORMANCE until assurances given, and treat as reputation if assurances not given w/i *reasonable time*
Party can withdraw repudiation prior to reliance on the repudiation
115
What is duress? (contracts)
(1) Party threatens to commit a wrongful act that would seriously threaten the other party’s property or finances
(2) There are no adequate means available to prevent the threatened loss
116
What is an express warranty, and what are the two kinds of implied warranties. When can these warranties be disclaimed?
Express warranty -- any seller. Arises when there is statement, description, sample or model that was basis of the bargain
---> generally can't be disclaimed
---> doesn't include mere puffery
Implied warranty of merchantibility -- merchants only. Warrants that goods are fit for ordinary purpose
---> disclaimer by "as is," "with all faults," etc.; or if prior to entering K, buyer examines as much as they desire or refuses to examine
Implied warranty of fitness for a particular purpose -- any seller who has reason to know of particular purpose good will be used for and that buyer is relying on seller's judgment to select goods (and buyer does rely)
---> disclaimer by "as is," "with all faults," etc.; or if prior to entering K, buyer examines as much as they desire or refuses to examine
**NOTE**: To be effective, a disclaimer of a warranty must be part of the offer and acceptance process (bargaining process) or must be agreed to by the buyer as a modification. A "disclaimer" in the box is not effective against buyer
117
When is restitution available?
Party recovers benefit conferred by way of part performance IN EXCESS OF the loss caused by his breach
118
What are the tests for whether a law is permissible under the Dormant Commerce Clause?
In absence of federal regulation, states can regulate intrastate aspects of interstate commerce, so long as the regulation does not discriminate or unduly burden interstate commerce.
(1) If a law discriminates against interstate commerce (strict scrutiny)
necessary + compelling NONECONOMIC interest + no reasonable nondiscriminatory alternative available
EXCEPTIONS: market participant exception; or authorized by congress
(2) If law does not discriminate but just burdens
weigh BURDENS on interstate commerce with the BENEFITS to local interests/important state interest
119
When is there state action?
(1) private actor is performing traditional and exclusive state function (e.g., running a company town); or
(2) state is significantly involved in the private action (e.g., using the courts to enforce discriminatory measures)
120
3 standards of scrutiny under EPC
strict:
necessary + compelling
(race, ethnicity, national origin, religion, and alienage by state unless public function doctrine applies)
intermediate:
substantially related + important
rational basis:
rationally related + legitimate
121
What are the standards of scrutiny for speech?
GENERALLY
(1) content based (strict scrutiny)
necessary + compelling + no less restrictive means
(2) content neutral; TMP (intermediate)
narrowly tailored + important + alternative channels of communication available
PUBLIC PROPERTY
(1) public/designated
TMP standard
(2) nonpublic/limited
viewpoint neutral + reasonably related + legitimate
122
When can commercial speech be regulated?
unlawful or misleading: UNPROTECTED
lawful and not misleading (TMP+)
narrowly tailored + important + directly advance that interest
123
What are the forms of unprotected speech and what standard applies?
STANDARD IF UNPROTECTED: rational basis
(1) Incitement
intended to + likely to + incite lawless/violent behavior
(2) Fighting words (statute can't be viewpoint based)
likely to provoke violence
(3) True threats (statute can't be viewpoint based)
intent/recklessness re: conveying serious threat or bodily harm
(4) Words as conduct
defamation, harassment
(5) Obscenity
- appeals to prurient interest (local/community)
- patently offensive (local/community)
- lacks serious value (national/reasonable)
124
what is defamation
*Here's defamation for you..."
P Diddy R*ped Four Fat Rappers
**PDRFFR**
(1) Publication to third party
(2) Defamatory statement
(3) Reasonably identifies plaintiff
(4) Fault (at least negligence)
(5) Falsity (modernly; under CL: D (speaker) must show truth)
(6) Reputational Damage (unless presumed)
Libel (written/recorded) = damages presumed
Slander per se (oral) = damages presumed if (CLUB)
- Crime
- Loathsome disease
- Unchastity
- Business/profession
125
What can school regulate speech (related to school activity + student speech)
RATIONAL BASIS
**School Speech** (i.e., speech related to the school's teaching)
reasonably related + legitimate pedagogical concern
**Personal Student Speech**
Student speech expressing themselves as individuals subject to normal analysis unless it causes *substantial disruption*
126
What are requirements for Free Exercise and Establishment Clause AND what do they generally do?
**Free Exercise** -- prohibits government from punishing someone on the basis of their religious beliefs
(1) if law discriminates (not neutral on its face or is not a neutral law of generally applicability) --> strict scrutiny
--> not generally applicable if government official is given discretion to grant exemptions; refusal to grant exception be subject to strict scrutiny
--> exemptions from a law to accommodate religious exercise does not violate Est. Clause
(2) No strict scrutiny if neutral law of general applicability
**Establishment Clause** -- prohibits government sponsorship of religion
--> if law favors one sect over another (favoritism) --> strict scrutiny
Otherwise, look at factors:
(1) neutrality (exemptions merely for religious activities likely ok)
(2) coercion, directly or indirectly
(3) consistency with historical practice
(4) what the Founder's would have considered acceptable
127
When can a public employer's speech be regulated?
NOT PROTECTED
On the job, pursuant to official duties
(1) Private concern, made at work
(2) Speech made pursuant to official duties
PROTECTED --> balance citizens' speech interests as citizens v. gov interest in efficient workplace
(1) Speech NOT made pursuant to official duties
128
When will a state grant Full Faith and Credit? What are the defenses? What if it's a foreign judgment?
REQUIREMENTS:
(1) FINAL judgment (*except custody orders)
(2) ON THE MERITS; and had
(3) JURISDICTION (PJ and SMJ)
On the merits: dismissal with prejudice
NOT on the merits: .... without prejudice
*unlike in the context of issue preclusion, final judgment doesn't have to hav been ACTUALLY LITIGATED --> so default judgment ok
DEFENSES:
(1) penal judgments (P was the state)
(2) extrinsic fraud
FOREIGN JUDGMENT:
comity -- same principles, but more emphasis on fairness and jx challengable even if fully litigated
129
What statute of limitations should a court apply?
Federal courts siting in diversity apply SOL of state in which they sit.
States typically consider procedural so will apply their own, UNLESS
(1) borrowing statute: if state has one, apply shorter SOL of forum court and other court
(2) statutory: if other state's statute creates the substantive right for the action, apply the SOL created by that statute
130
How to establish PJ?
SPECIFIC -- state has authority can exercise jx over nonresident Ds to extent authorized by long-arm statute and permitted by DPC
*Minimum contacts (purposeful availment + foreseeable)
*Related (arise of or relate to)
*Doesn't offend traditional notions of fair play and substantial justice
GENERAL
(1) at home (= domicile -- for biz: ONE PPB AND ANY state of incorporation)
(2) registered to do biz + appointed agent
131
What establishes FQJ
Federal question appears in P's well-pleaded complaint -- claim must arise under federal law or seek to enforce a federal right
132
When is removal permitted
ONLY BE DEFENDANT
(1) case could have been brought in fed court;
AND
(2) consent of all defendnats
133
When is transfer of venue permitted, and when is transfer granted?
(1) case could have been brought in transferee venue;
OR
(2) consent of all parties
If original court proper --> Court MAY transfer, if in the interests of justice (consider convenience to parties, where evidence is located, and public factors like interest in the case)
-----> transferee court will apply choice of law rules of transferor court, unless transfer is for valid FSC
If original court improper --> Court MUST transfer (or dismiss)
-----> transferee court will apply its own choice of law rules
134
When is supplemental jx permissible?
Additional claim must arise from common nucleus of operative fact as underlying claim
Generally can’t be invoked by P in diversity cases (to join non-diverse Ds and avoid complete diversity req’s), unless multiple Ps and one doesn’t meet AIC req
135
Where is venue proper?
(1) if all Ds live in same state, then any district where any D resides; or
---> NOTE: *corporate D "resides" in any district in which it is subject to PJ for the case*
(2) any district in which a substantial part of the claim arose
(3) fallback: any district in which any D is subject to court's D
[or there was removal to that court]
136
When are TROs and preliminary injunctions available?
TRO [can be issued ex parte]
- P must show "immediate and irreparable harm"
- Can last only 14 days
- temporary measures until court can decide on prelim inj.
PRELIMINARY INJUNCTION [can NOT be issued ex parte]
--> HELP; burden on applicant to show
(1) Harm -- irreparable harm if injunction not granted
(2) Evaluation of injuries -- harm to P > harm to D
(3) Likelihood of prevailing -- likely to win on the merits
(4) Public interest -- injunction is in public interest
137
What is work product and when can it be obtained?
Material prepared in anticipation of litigation by party or its representatives
Qualified protection -- substantial need + undue hardship
Absolutely protected -- opinion work product (contains parties' opinions and mental impressions
**Special rule**: identity of people with discoverable info is NOT work product
138
What is res judicata and collateral estoppel and what are the requirements?
Res judicata (claim preclusion)
(1) Same claimant, same defendant (same configuration)
(2) Same claim (any right to relief arising from S/T/O)
(3) Valid, final judgment on the merits
------> Dismissals WITH prejudice operate as an adjudication on the merits unless dismissal based on jurisdiction, improper venue, or failure to join necessary party
Collateral estoppel (issue preclusion)
(1) Valid, final judgment on the merits
(2) Issue actually litigated
(3) Issue essential to judgment
Preclusion asserted against party or their privity (due process)
Preclusion asserted by party or their privity
139
When does dismissal with prejudice act as an adjudication on the merits?
**"Jesus, It's Final!!"**
Always, unless dismissal was on based on **JVF**:
**J**urisdiction,
**I**mproper venue, or
**F**ailure to join necessary party
140
What are the two areas where collateral order doctrine has actually been applied?
Matters of immunity and double jeopardy
Collateral Orders Doctrine
(1) issue distinct from merits of case
(2) involves important legal question
(3) is essentially unreviewable if parties wait final judgment
141
What is required to establish an agency relationship?
(1) CONSENT of both parties that A will act for P's benefit and subject to P's control
*Writing if req — by Statute of Frauds (e.g., agent enters into K for sale of land, or agency K itself would fall into SoF)
*Consideration not necessary, but can be used to create irrevocable agency relation
142
How can principal ratify agent's conduct?
AFFIRMING (expressly/impliedly) or ACCEPTING benefits
143
When are principal, agent, and third party bound to a K?
PRINCIPAL
- Bound if valid authority existed (actual, apparent, ratification)
AGENT
- Bound if NO valid authority existed
- Bound if P was not a *fully* disclosed P (i.e., unidentified or undisclosed)
→ b/c 3P thought they were making K with A
THIRD PARTY
- Bound to P if valid authority existed
- Bound to A if P was not a *fully* disclosed P (i.e., unidentified or undisclosed) and A enforces K
→ b/c 3P thought they were making K with A
144
What is required for the formation of a partnership?
Association of two or more persons to carry on as co-owners a business for profit, whether or not there was intent to form a partnership.
**Profit-sharing creates presumption of partnership
DEFAULT where other entities improperly formed
145
What does Board (corp) action require
(1) unanimous consent in writing; or
(2) voting at a meeting in which there is a quorum
146
What does SH (corp) action require
(1) unanimous consent in writing, signed by all SHs; or
(2) voting at a meeting in which there is a quorum
147
How are decisions in partnership made? When is partnership bound? When can this authority be limited w/r/t third parties?
Partner has ACTUAL authority when:
(1) Decisions in ordinary course: majority vote (by number)
(2) Decisions outside ordinary course: unanimous consent
Partner has APPARENT authority when:
(1) partner enters into transactions w/i ordinary course of partnership's business or business of the kind carried out by the partnership
*Authority to bind partnership cannot be changed by a statement of partnership authority, except w/r/t transactions involving real property — a SOPA properly filed w/ sec. of state that limits partner’s authority to transfer partnership’s real property is binding on third parties (gives them notice)
148
When is a partnership bound in tort?
When partner acts
(1) in the ordinary course of business of the partnership; or
(2) with valid authority of the partnership
149
What is "winding up" in a corporation?
Partnership assets liquidated, creditors are paid
**Partners still liable for any liabilities that occur during winding up phase
True end of partnership happens at TERMINATION
150
What must someone do when seeking to hold partnership liable?
Joint and several liability — partners liable for all obligations of partnership, whether tort or K
Plaintiff must first exhaust partnership resources before collecting from individual partners’ assets
151
Article IV v. 14A P&I Clauses?
(1) Article IV Privileges And Immunities -- applies to intentionally protectionist activity and subject to strict scrutiny
States cannot discriminate against And-of-state citizens w/r/t commercial activities/interests (livelihood/employment) or fundamental rights
(2) 14A Privileges or immunities — Privileges of National Citizenship
States cannot deny their citizens the privileges of national citizenship (right to interstate travel, right to vote, right to enter public lands)
---> Individual has fundamental right (1) to travel from state to state and (2) to be treated equally after moving into a new state
---> *Durational residency req’d only held valid for 30 day waits to vote and 1-year waits for divorce
152
What is the general discovery standard?
Any non-privileged matter that is relevant to the claim or defense of a party, including the identity of persons having knowledge of relevant facts
*Cost of discovery and needs of case will also be discovered
153
When do anti-lapse statutes apply?
For anti-lapse statute, the *predeceased beneficiary* has to be within a certain relationship and they must have surviving *descendants* (no other relationships)
descendants = issue
154
When does a person have standing to contest a will
those who are named on the face of the will and those who would inherit from the testator through intestate succession if the will was to be declared invalid.
155
Which future interests does the RAP apply to?
(1) contingent remainders
(2) executory interests
(3) vested remainders subject to open (class gifts)
(4) options and rights of first refusal***
(5) powers of appointment
***For RoFR, you have to distinguish rights held by *lessee*, and all others:
**Options to purchase for lessee.** Options and rights of first refusal are not subject to the Rule Against Perpetuities when connected to *leaseholds*
Thus, if ROFR is part of lease rights, there is no RAP problem. The RoFR will remain even if you assignment the leasehold. However, if you try to assign *just* the option/ROFR, it is separated from the leasehold and is subject to RAP
**Other options to purchase.** If option is not personal to the holder of the option (e.g., extends to heirs and assigns), it will violate the RA
