Bar Study!

Front 1

When will a warning not remove liability?

Back 1

When the product can physically be altered to be safer at a low cost

Front 2

When does governmental immunity not apply?

Back 2

When government is engaged in an activity that is normally conducted by private industry

Front 3

What about strict liability and knives?

Back 3

Manufactures will not be held liable for some dangerous products if danger is apparent and there is no safer way to make the product

Front 4

What recovery for loss of consortium?

Back 4

Services, society, sexual intimacy

Front 5

Is an owner strictly liable for damages by wild animals to trespassers?

Back 5

No

Front 6

Can a bystander sue a commercial supplier in the chain of distribution in strict liability?

Back 6

Yes - there is no privity requirement

Front 7

What is liability for reasonably foreseeable damages done by a trespass of his animals?

Back 7

Strict liability

Front 8

Does comparative negligence reduce recovery in strict liability cases?

Back 8

Yes

Front 9

Assumption of risk: can it lower recovery in SL?

Back 9

Yes

Front 10

Which decides whether misuse of product is reasonably foreseeable?

Back 10

Jury

Front 11

Is Lessor a merchant for purposes of SL?

Back 11

Yes

Front 12

Noncompliance with government safety standards is …

Back 12

Conclusively establishes that the product is defective

Front 13

When is hiring party liable for tort of independent contractor?

Back 13

When hiring party is land possessor and P is an invitee (duty to invitee is nondelegable)

Front 14

When is a warning necessary?

Back 14

If a product has physical risk that can't be remedied by different designs, and consumer would not be aware of them

Front 15

What are the six exceptions to objective RPP standard for negligence torts?

Back 15

Children (under 4/5-17), professionals, possessors to entrants on land, statutory standards of care, affirmative actions, negligent inflection of emotional distress

Front 16

How does "community" effect primary care physicians?

Back 16

It means geographic community - e.g., small town docs to small town docs, etc.

Front 17

What duty of care is owed to undiscovered trespassers?

Back 17

None - they can never recover on negligence claim against landowner/possessor

Front 18

What is a licensee? What duty owed?

Back 18

A person who enters land w/ permission but don't confer economic benefit on owner - e.g., social guest, duty owed is for Activities - RPP; conditions - warn of all known traps

Front 19

What is an invitee? What duty of care is owed to invitees?

Back 19

A person who comes on property to confer economic benefit or because property is open to the public, duty -- for Activities - RPP; conditions - warn of concealed traps, plus duty to make reasonable inspections to discover nonobvious dangerous conditions and then make them safe

Front 20

Attractive Nuisance Elements

Back 20

Dangerous condition that owner knows or should know of, owner knows/should know children frequent the area; condition likely to cause injury (because child won't appreciate the risk), expense of remedying the situation is slight compared to the magnitude of the risk (note: kids don’t actually have to have been attracted onto land for this reason)

Front 21

When does an invitee lose that status?

Back 21

When the invitee exceeds the scope of the invitation

Front 22

What duty is owed to users of recreational land?

Back 22

No liability for injuries suffered by recreational user, so long as landowner does not charge fee and did not willfully and maliciously fail to guard against/warn of a dangerous condition or activity

Front 23

When can a statutory standard of care substitute for a general duty of care?

Back 23

IF statute provides for criminal penalty, clearly defines standard, P is within protected class, and statute was designed to prevent the type of harm suffered by P (class of persons, class of risk test)

Front 24

A statutory violation is …

Back 24

Negligence per se (but only 2 of 4 elements)

Front 25

What are the exceptions triggering duty to rescue (but never need to put own life in peril)?

Back 25

Assumption of duty by acting (but see good Samaritan law), peril due to defendant's conduct, special relationship between parties (parent child, common carriers, innkeeper, shopkeeper, places of public accommodation), duty to prevent 3d person from injuring another ONLY if one has actual authority to control, and knows/should know that 3d p is likely to commit acts that would require exercise of control

Front 26

What must a P show to recover for negligent infliction of emotional distress?

Back 26

Negligent D: caused threat of physical impact (has to be a near miss or bystander claim) that leads to emotional distress w/ SUBSEQUENT PHYSICAL MANIFESTATIONS of the distress (heart attack, miscarriage)

Front 27

When can P recover for negligent infliction of emotional distress without physical manifestations?

Back 27

Erroneous report of relative's death, mishandling of relative's corpse

Front 28

Actual Cause

Back 28

But For when one cause, Substantial Factor when merged causes and each could have caused it alone, burden shifts to Ds when several causes and cant tell which

Front 29

What common dependent intervening forces are almost always foreseeable? (6)

Back 29

Subsequent medical malpractice, negligence of rescuers, efforts to protect person or property of oneself or another, injuries caused by another "reacting" to D's actions, subsequent diseases caused by a weakened condition, subsequent accident substantially caused by the original injury

Front 30

What common independent intervening forces will be considered foreseeable if D's negligence increased risk of harm from the forces?

Back 30

Negligent acts of 3d parties, crimes and intentional torts of 3d parties, acts of God

Front 31

Is D liable where his negligence increased the risk of a foreseeable harmful result and that result is ultimately produced by an unforeseeable intervening force?

Back 31

Yes, unless the unforeseeable intervening force was a crime an intentional tort of a 3d party

Front 32

What is the measure of damages in a personal injury case?

Back 32

All damages (past, present and prospective), both special and general

Front 33

What is the measure of property damages?

Back 33

Reasonable cost of repair, or if property nearly destroyed the FMV at time of accident

Front 34

When may P recover punitive damages?

Back 34

When D's conduct is "wanton and willful", reckless or malicious

Front 35

What are nonrecovery items?

Back 35

Interest from date of damage in a PI action, attorney's fees

Front 36

collateral source rule

Back 36

if P receives benefits from other sources, such as health insurance, dmgs not affected

Front 37

When is an employer liable for act of independent contractor?

Back 37

When duty is nondelegable on public policy grounds (e.g., LO making premises safe for invitees, abnormally dangerous activities?)

Front 38

Whose role is it to decide whether the doctrine of attractive nuisance applies?

Back 38

Jury

Front 39

What are the elements of intentional interference of contract?

Back 39

Existence of valid contractual relationship between P&3d party/economic expectancy of ; D's knowledge of the expectancy; intentional interference by D inducing breach/termination of the contractual relationship/expectancy; damage to P

Front 40

How is a hotel's duty measured vis a vis guests - as innkeeper or land occupier/invitees?

Back 40

Analyze both

Front 41

What does harmful mean in the context of battery?

Back 41

It hurts you.

Front 42

What does offensive mean in the context of battery?

Back 42

Unpermitted by a person of ordinary sensitivity

Front 43

In context of assault, what does apprehensive mean?

Back 43

Knowledge

Front 44

An act of restraint only counts if… (2)

Back 44

P knows about it or is harmed by it

Front 45

Outrageous Conduct?

Back 45

Conduct that exceeds all bounds of decency tolerated in a civilized society

Front 46

What are the fragile classes? (4)

Back 46

Young children, elderly, pregnant women, supersensitive adults if sensitivities are known to P

Front 47

Only __(#)__ Intentional Tort(s) that require dmgs?

Back 47

one→ IIED (unless you count trespass to chattels, but that can be possessory rt that is harmed, so not really)

Front 48

Causation in bystander IIED cases

Back 48

P may recover by showing either PF elements of IIED, or (1) she was present when injury occurred, (ii) she is a close relative of the injured person, and (iii) D knew both facts

Front 49

Trespass to land – elements

Back 49

Physical invasion of plaintiff's land, intent, causation

Front 50

Trespass to chattels – elements

Back 50

Act by D that interferes with P's right to possession in a chattel, intent, causation

Front 51

What damages are required for trespass to chattels?

Back 51

Actual damages - to chattel or possessory right

Front 52

Conversion – elements

Back 52

Act by D that interferes with P's right of possession in a chattel; interference is so serious that it warrants requiring D to pay the chattel's full value

Front 53

What are the 4 acts that def qualify as conversion (4)

Back 53

Wrongful acquisition (theft), wrongful transfer, wrongful detention, substantially changing/severely damaging/misusing a chattel

Front 54

What can be subject matter of conversion?

Back 54

Tangible personal property, intangibles that have been reduced to physical form (e.g., promissory note, deed)

Front 55

Exceptions to express consent (3)

Back 55

Mistake, if D knew of and took advantage of the mistake; fraud, if goes to an essential matter, duress (unless duress is only threats of future action/future economic deprivation)

Front 56

Defense to intentional torts

Back 56

consent, self defense, defense of others, defense of ppty

Front 57

Don’t need capacity to commit intentional tort, but do Need capacity to…

Back 57

consent, but cannot exceed scope. (consent can be implied or apparent)

Front 58

What must D show to assert self-defense?

Back 58

Real time, reasonable belief of a threat, proper amount of force

Front 59

What is the defense of public necessity?

Back 59

A complete and absolute defense, avoids impending injury to common good

Front 60

When do defenses of necessity apply?

Back 60

Only in property claims

Front 61

What is the defense of private necessity?

Back 61

D invades P's property in an emergency to protect an interest of his own. (as long as emergency continues, private necessity D cant be lawfully expelled from a position of safety.)

Front 62

What is the test for whether statements of opinions are defamatory?

Back 62

Would a reasonable person conclude that it conveys factual information (and, if matter of public concern, Constitution requires - Falsity of the defamatory language, Fault on part of D)

Front 63

What is slander per se? (4)

Back 63

Adversely reflect on one's conduct in a business or profession, one has a loathsome disease (leprosy, VD), one is or was guilty of a crime involving moral turpitude, a woman is unchaste

Front 64

Defamation, Small group, large group? Some members? Of and concnerning? Std How to tell whether of an concerning…

Back 64

P can recover if a reasonable person would view the statement as referring to P

Front 65

What are the defenses to defamation? (3)

Back 65

Consent, truth, privileges (spousal, govt duties)—(also qualified privileges like Reports of official proceedings, statements in the interest of the publisher or recipient, or statements in common interest of public and recipient)

Front 66

What changes if defamation involves a matter of public concern?

Back 66

The First Amendment requires that P prove both falsity and D's fault

Front 67

What types of fault may plaintiff have to prove?

Back 67

Re defamation of public official or figure, must prove malice (knowledge or reckless disregard for a truth); re private figure need only show negligence

Front 68

What is tort of appropriation? What is the exception?

Back 68

D uses P's name/image for commercial purposes, newsworthiness.

Front 69

What is the tort of intrusion

Back 69

An invasion by D of P's seclusion, in a fashion that would be objectionable to a reasonable person

Front 70

What is the standard for publication of facts placing P in false light?

Back 70

Widespread dissemination by D of a material falsehood about P that would be objectionable to an average person; malice on part of D when the published matter is in the public interest

Front 71

What is the intent/fault requirement for the tort of false light?

Back 71

None (intent irrelevant)

Front 72

Disclosure of private fact elements? What is the exception?

Back 72

Widespread dissemination of confidential information about P that would be objectionable to an average person. Newsworthiness

Front 73

What are defenses to false light and disclosure of private fact only?

Back 73

Defamation privileges

Front 74

Transferred intent can only occur with which torts?

Back 74

Battery, assault, false imprisonment, trespass to land, trespass to chattels

Front 75

Which torts cannot be involved for transferred intent to apply?

Back 75

Conversion, defamation, privacy torts, nuisance, IIED

Front 76

What are the elements of intentional misrepresentation?

Back 76

Misrepresentation, scienter, intent to induce p's reliance, causation (i.e., actual reliance), justifiable reliance, damages

Front 77

Any time evidence is admissible for one purpose but not for another, raise possibility of…

Back 77

Limiting instruction or court's discretion to exclude - unfair prejudice

Front 78

In a criminal case, pleas (of guilty or nolo contendere), offers to plea, and related statements are…

Back 78

Inadmissible to prove guilt

Front 79

Exceptions to settlement rule:

Back 79

No claim yet asserted (offers to settle before other party says anything); no dispute as to liability or damages ("I know I owe you the full $10K, but can we agree I'll just pay you $5?")

Front 80

Civil cases - character is in issue in these types of cases:

Back 80

Defamation, negligent entrustment (parents negligent to give car to teenage son whom they knew to be reckless), child custody.

Front 81

Prosecution can be the first to offer evidence of D's character only …

Back 81

In sexual assault/child molestation cases, P can be first to offer evidence that D committed other sexual assaults/child molestations; Where court has admitted evidence of V's character offered by D, prosecution can be first to offer evidence that D has same character trait

Front 82

If D calls witness who testifies that D is gentle, can P call evidence prof to stand and on direct ask about incident in which D kicked prof?

Back 82

No - specific evidence act is never admissible on direct, even if D opened door

Front 83

Re character evidence, criminal cases - what's the one time the doors open together:

Back 83

After court admits D's evidence of V's violent character, P may offer evidence of D's violent character

Front 84

Rape shield/criminal: What evidence of victim's character is admissible?

Back 84

ONLY specific instances of alleged V's conduct is admissible, and only to prove 3d party is source of semen/injury or prior acts of consensual intercourse between D and V. (NO opinion/reputation evidence of V)

Front 85

Rape shield/civil: What evidence of victim's character is admissible?

Back 85

Reputation, opinion, specific acts evidence is admissible if probative value substantially outweighs unfair prejudice (special balancing test) and, w/ reputation evidence, P put V's reputation at issue

Front 86

What are requirements for a witness to be competent to testify?

Back 86

Personal knowledge (may be limited; distinguish from hearsay - does fact perceived = fact testified to? If not, PK), Present recollection, Communication (directly or through interpreter, Sincerity (oath)

Front 87

Types of objection - testimonial evidence

Back 87

Hearsay, calls for narrative (overbroad question - question must elicit specific facts); nonresponsive (W didn't answer q); improper leading question (leading q suggests answer to W; no leading on direct unless adverse or hostile W, or W needs help; leading OK on cross as long as stay w/i scope of direct); assumes facts not in evidence ("When did you stop beating your wife?"); argumentative ("Do you expect the jury to believe that load of baloney?"); compound ("Isn't it true that you both cheated on your wife, and you beat her up?" - confusing to jury)

Front 88

Elements of Past recollection recorded:

Back 88

(1) W once had personal knowledge, (2) doc made by W or under W's direction or was adopted (3) accurate when made, (4) W now has insufficient recollection to testify

Front 89

Lay opinion is admissible if…

Back 89

rationally based on W's perceptions (perception must be sufficient) and helpful to trier of fact (gives jury more info than would testimony limited to W's perceptions); cannot be based on scientific or other specialized knowledge (ex: Speed of auto, sanity, intoxication, emotions, value of W's property)

Front 90

Expert opinion is admissible if…

Back 90

helpful to jury, W is qualified, W believes in opinion to reasonable degree of certainty, opinion is supported by proper factual basis, opinion is based on reliable principles that were reliably applied

Front 91

In context of expert opinion, helpful means…

Back 91

expert uses specialized knowledge to reach conclusion the average juror could not figure out for herself

Front 92

In context of expert opinion, what does "reliable principles, reliably applied" mean?

Back 92

Daubert/Kumho standard: Peer-reviewed and published, tested and subject to retesting, low error rate, reasonable level of acceptance; also, reliable on common sense basis - no logical inconsistencies, considered other pertinent evidence and alternative explanations)

Front 93

Extrinsic evidence means…

Back 93

any evidence other than testimony given at the instant proceeding by the witness being impeached

Front 94

Conviction for crimes involving false statement - admissible to impeach?

Back 94

Always admissible (felony/misdemeanor irrelevant) for impeachment (not necessarily conduct) - no discretion; balancing only allowed if conviction > 10 years old.

Front 95

Conviction for crimes involving false statement - admissible to prove conduct in conformity with character?

Back 95

Not necessarily - see character evidence rules

Front 96

Misdemeanors not involving false statement - admissible to impeach?

Back 96

No

Front 97

Felonies not involving false statement - admissible to impeach?

Back 97

Yes, but discretion to exclude/balancing

Front 98

What is the one exception to the requirement for personal knowledge?

Back 98

Party admissions

Front 99

Hearsay - former testimony exception

Back 99

Declarant unavailable; criminal case: party against whom testimony is now offered had during earlier proceeding had opportunity and similar motive to examine; Civil case: party or predecessor-in-interest (requires close privity relationship) had opportunity and similar motive to examine

Front 100

Hearsay - declaration against interest exception

Back 100

Declarant's out-of-court statement was against financial interest of declarant when made, or would've subjected declarant to future criminal liability; if offered to exculpate the accused, must be corroborating evidence to admit

Front 101

Hearsay - excited utterance exception

Back 101

Availability immaterial - statement relates to startling event/condition and declarant still under stress of excitement caused by event/condition

Front 102

Hearsay - public records exception – civil

Back 102

Availability immaterial - excludable if untrustworthy. Record describes activities of the office, describes matters observed pursuant to duty imposed by law, or contains factual findings resulting from investigation made pursuant to authority granted by law

Front 103

Hearsay - public records exception – criminal

Back 103

Availability immaterial - excludable if untrustworthy. Record describes activities of the office

Front 104

Hearsay - judgment of previous conviction

Back 104

Availability immaterial - Hearsay describing felony convictions is admissible in both civil and criminal cases to prove any fact essential to the judgment, but when offered by prosecution for purposes other than impeachment, judgments against persons other than the accused are inadmissible

Front 105

Confrontation clause excludes…

Back 105

Out-of-court statement if declarant does not testify, is now unavailable, the statement is "testimonial," and defendant had no chance to cross-examine declarant about the statement when it was made.

Front 106

Testimonial

Back 106

statement is made in court, statements made to further a police investigation aimed at producing evidence for a prosecution (not police to deal with ongoing emergency)

Front 107

Doctor-patient privilege & exceptions

Back 107

Not in FRE; exists in CA; majority rule is: A patient has a privilege to prevent disclosure of information confidentially conveyed to a physician where the patient conveyed the information for the purpose of pertaining diagnosis or treatment, and the information was pertinent to obtaining diagnosis or treatment, exceptions: Patients puts his physical condition in issue (PI suit), where physician's services sought to aid in crime/fraud/escape capture after crime/tort; in case alleging breach of duty arising out of physician-patient relationship (malpractice); in CA, not recognized in criminal cases

Front 108

Facts appropriate for judicial notice

Back 108

Must be not subject to reasonable dispute because they are either general known in the jurisdiction, or capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned

Front 109

Can a person become familiar with handwriting/speaker's voice/both for purposes of trial?

Back 109

Only voice

Front 110

Format for evidence essays

Back 110

Form (legal objections to qs & as), Purpose (logical/legal relevance, extrinsic policy exclusions, character evidence), Presentation (personal knowledge, competency, impeachment, lay/expert opinion, document reliability, judicial notice), Hearsay, Privileges

Front 111

Judgments of felony conviction are admissibile in both criminal and civil action to...

Back 111

prove any fact essential to the judgment, whether judgment arose after trial or upon a plea of guilty

Front 112

Attorney-client privilege - what about communications made in front of other people?

Back 112

Still confidential if people are in scope of privilege - course of facilitating legal services

Front 113

Exceptions to CA Truth in Evidence Amendment

Back 113

Confrontation Clause; Hearsay; Privileges; Rape Shield; Defendant rt to open character door; Secondary evidence rule; Balancing. UNCLEAR: Please later withdrawn/offers to plea/related statements

Front 114

Subsequent remedial measures or repairs – difference

Back 114

Both: Evidence of safety measures or repairs after an accident is inadmissible to prove negligence. FRE only: ALSO inadmissible to prove defective design in a products liability action based on theory of strict liability

Front 115

Settlements – difference

Back 115

Both: Evidence of settlements, offers to settle, and related statements are inadmissible to prove liability or fault. CA only: discussions during mediation proceeding also inadmissible.

Front 116

Pleas later withdrawn, offers to plea, related statements – differences

Back 116

Both: Inadmissible. Even if Prop 8 applies, court may still exclude for unfair prejudice under § 352

Front 117

Character evidence - civil cases – differences

Back 117

Both: Inadmissible to prove conduct. CA: No exceptions. FRE: When crime is based on sexual assault/child molestation, D's prior acts of sexual assault/child molestation are admissible to prove D's conduct in this case

Front 118

Competency – differences

Back 118

Both: Witnesses must testify based on personal knowledge, have the ability to communicate, take an oath, or make an affirmation to tell the truth, and claim to recall what they perceived. CA: W must also understand the legal duty to tell the truth

Front 119

Competency - who can testify? – differences

Back 119

Both: All Ws are competent except judge and jurors. CA: also disqualifies Ws who have been hypnotized to help refresh recollection except, in a criminal case, Ws hypnotized by police using procedures that protect against suggestion

Front 120

Expert Opinions reqts difference

Back 120

FRE: Daubert/Kumho Standard - reliability of scientific evidence determined by four factors: Publication,/peer review, error rate, results are tested and ability to retest, reasonable level of acceptance. Non-scientific - facts/circumstances. CA: Reliability of scientific opinions - one factor - opinion must be based on principles generally accepted by experts in the field. Not altered by Prop 8

Front 121

Difference Re Prior Inconsistent Stmts

Back 121

CA exception extends to all inconsistent statements of W, whether or not under oath

Front 122

Impeachment with prior felony conviction – differences

Back 122

FRE: All felonies involving false statement (perjury, forgery, fraud) admissible… no balancing/discretion except for old crimes. Convictions for felonies not involving false statements may be admissible, but court must balance. CA: All felonies involving "moral turpitude" are admissible but court must balance; felonies not involving moral turpitude are inadmissible - Prop 8 doesn't apply because they're considered irrelevant.

Front 123

Crimes involving moral turpitude – definition

Back 123

Lying, violence, theft, extreme recklessness, sexual misconduct; not crimes for merely negligent/unintentional acts

Front 124

misdemeanor convictions

Back 124

CA-- inadmissible to impeach, but if they involve moral turpitude → admissible, subject to balancing (b/c of prop 8).

Front 125

Old crimes to impeach

Back 125

FRE – 10 year rule, CA—balance, but no specific rule

Front 126

Prior Bad Acts difference in CA

Back 126

civil cases inadmissible

Front 127

Dec against interest- CA v Fed

Back 127

Federally, only against interest if against financial or criminal liability; CA—reputation, social interest also

Front 128

Unavailability in fed v. CA court

Back 128

FRE: Declarant refuses to testify despite court order, declarant's memory fails on the subject of her statement. CA: Declarant suffers total memory loss or refuses to testify out of fear

Front 129

Hearsay - present sense exception – differences

Back 129

Both: Availability immaterial. FRE: Statement describing or explaining an event or admission made while declarant was perceiving the event or immediately thereafter. CA: Narrower - statement explaining conduct of declarant made while declarant was engaged in that conduct. BUT OJ exception - CA only-- made at or near time of injury or threat, by unavailable declarant, describing or explaining infliction or threat, in writing or recording or made to police or medical professional, under trustworthy circumstances. (consider Confrontation clause - if made to police...)

Front 130

Hearsay Stmt of Mind/body condition for Medical Treatment CA narrower… BUT…

Back 130

ONLY if declarant is MINOR, describing an act of child abuse/neglect…. Other exception for such stmts by anyone if it is an issue in the case - no requirement that statement be made for medical purposes.

Front 131

Hearsay- -Dying dec differences

Back 131

CA must be dead

Front 132

Best Evidence/Secondary Evidence Rule Difference in defining duplicate

Back 132

CA allows handwritten copies

Front 133

When is testimony admissible to prove contents of a writing – differences

Back 133

Both: Testimony regarding contents of writing may be admissible where original lost or destroyed, unless bad faith by proponent of testimony

Front 134

Doctor-patient/psychotherapist-patient privileges - exceptions – differences

Back 134

Where patient puts his physical/mental condition in issue, as in a personal injury suit, where professional services were sough tto aid in crime/fraud or to escape capture after a crime/tort, in cases alleging breach of duty between patient/doctor or patient/psychotherapist.

Front 135

How can a negative easement be created?

Back 135

Expressly, by a writing signed by the grantor, only.

Front 136

How is an easement appurtenant transferred?

Back 136

It passes automatically with the dominant tenement, regardless of whether it is mentioned in the conveyance. It passes automatically with the servient estate, unless the new owner is a bona fide purchaser without notice

Front 137

What issue should you always think about in deciding whether an easement allows behavior?

Back 137

scope, determined by terms of grant or conditions that created it

Front 138

When does estoppel bar revocation of a license?

Back 138

Only when licensee has invested substantial money/labor/both in reasonable reliance on the license's continuation.

Front 139

What is a profit and what rules apply

Back 139

rt to take resources from another’s land, rules of easements apply

Front 140

How is a covenant different from an easement?

Back 140

An easement is the grant of a property interest; a covenant is a contractual limitation or promise regarding land.

Front 141

How is a covenant different from an equitable servitude?

Back 141

The remedy for breach of covenant is monetary damages; the remedy for breach of equitable servitude is an injunction

Front 142

What is an equitable servitude?

Back 142

A promise that equity will enforce against successors

Front 143

What are the parameters of record notice?

Back 143

Some courts hold a subsequent buyer on record notice of the contents of prior deeds transferred to others by a common grantor. Better view (less burdensome to D's title searcher) is that subsequent buyer does not have record notice of the contents of those deeds.

Front 144

What is a defense against the enforcement of an equitable servitude?

Back 144

Changed conditions - so pervasive that the entire community is altered

Front 145

When can tacking help with adverse possession?

Back 145

When there is privity among adverse possessors - any non-hostile nexus

Front 146

What are common disabilities that can affect adverse possession?

Back 146

Insanity, infancy, imprisonment (SOL wont run against one who has disability when SOL began to run)

Front 147

When does possession of part of a tract suffice for adverse possession?

Back 147

Possession of part of a unitary tract is sufficient adverse possession of the whole if there is a reasonable proportion between the part actually possessed and the whole, and if the possessor has color of title.

Front 148

Four requirements of land contract

Back 148

Writing, signed by parties to be bound, describe the land, state consideration

Front 149

Doctrine of part performance - equity will decree specific performance of an oral contract for sale of land when 2 of 3 are satisfied:

Back 149

B takes possession, B pays all or part of the purchase price, B makes substantial improvements

Front 150

What does it mean to provide marketable title?

Back 150

Title free from reasonable doubt - unencumbered fee simple

Front 151

What are the implied promises in every land contract (2)?

Back 151

Title from reasonable doubt, not to make any false statements of material fact (majority: also failure to disclose latent material defects)

Front 152

What is the standard for description of land in a deed?

Back 152

Unambiguous description

Front 153

What is the standard for delivery of a deed?

Back 153

Whether grantor had present intent to be bound, irrespective of whether the deed itself was literally handed over

Front 154

What does the covenant of seisin do?

Back 154

Promises that grantor owns the estate

Front 155

What is the covenant against encumbrances promise?

Back 155

That there are no servitudes or liens against Blackacre.

Front 156

What are the three present covenants?

Back 156

Covenant of seisin, covenant of right to convey, covenant against encumbrances

Front 157

What are the three future covenants?

Back 157

Covenant for quiet enjoyment, covenant of warranty, covenant for further assurances

Front 158

What does the covenant of warranty promise?

Back 158

Grantor promises to defend grantee should there be lawful claims of title brought by others

Front 159

What does the covenant for future assurances promise?

Back 159

Grantor promises to do whatever future acts are reasonably necessary to perfect the title if it later turns out to be flawed

Front 160

What promises does grantor make in a special warranty deed?

Back 160

He hasn't conveyed Blackacre to anyone other than grantee, Blackacre is free from encumbrances made by grantor

Front 161

To give record notice to subsequent takers, the deed must be recorded properly, within…

Back 161

the chain of title

Front 162

How is the chain of title established?

Back 162

Through a title search of the grantor/grantee index

Front 163

Rule of the wild deed?

Back 163

If a deed, entered on the records, has a grantor unconnected to the chain of title, the deed is a wild deed. It is incapable of giving record notice of its existence - it's a nullity

Front 164

The recording of a wild deed is a nullity. What does this mean?

Back 164

A subsequent bona-fide purchaser wins in a notice jurisdiction and wins if she records in a race-notice jurisdiction.

Front 165

Rule of estoppel by deed?

Back 165

One who conveys realty in which he has no interest is estopped from denying the validity of the conveyance if he later acquires that previously transferred interest

Front 166

Equitable mortgage?

Back 166

Means where deed is signed over absolutely when in fact the recipient is just providing a mortgage. Court will allow in parol evidence to show intent of parties wasn’t just to give it away.

Front 167

If a note is endorsed and delivered, the transferee is eligible to become

Back 167

A holder in due course (must pay value, be negotiable note, endorsed/signed by named mortgagee over to new mortgagee/holder in due course, transferee must take in GF, w/o notice of illegality)

Front 168

The holder in due course takes the note/may foreclose despite

Back 168

Personal defenses that could've been raised against the original mortgagees

Front 169

Personal defenses include (5)

Back 169

Lack of consideration, fraud in the inducement, unconscionability, waiver, estoppel

Front 170

Holder in due course is still subject to these seven "real defenses":

Back 170

MAD FIFI4 (MATERIAL ALTERATION, DURESS, FRAUD IN THE FACTUM - lie about the instrument, INCAPICITY, ILLEGALITY, INFANCY, INSOLVENCY)

Front 171

To be a holder in due course, what five criteria must be met?

Back 171

Note must be negotiable, made payable to the named mortgagee; the original must be endorsed, signed by the named mortgagee; the original must be delivered to the transferee; transferee must take the note in good faith without notice of any illegality; transferor must pay more than nominal value

Front 172

A later buyer takes subject to a …

Back 172

PROPERLY RECORDED lien

Front 173

In a foreclosure sale, who takes off the top?

Back 173

Attorney fees, foreclosure expenses, accrued interest in <foreclosing> bank's lien

Front 174

Which interests will foreclosure terminate?

Back 174

Junior interests/mortgagees/lienholders

Front 175

Which parties must the foreclosing party join?

Back 175

Those with subordinate mortgages and the debtor-mortgagor.

Front 176

What is the effect of failing to include a necessary party in a mortgage action?

Back 176

It results in the preservation of the party's claim, despite the foreclosure and sale - his mortgage remains on the land.

Front 177

Once recorded, lien holder priority is determined by the norm of

Back 177

First in time, first in right

Front 178

What is a subordination agreement?

Back 178

Senior creditor may agree to subordinate its priority to a jr. creditor

Front 179

May a debtor/mortgagor waive the right to redeem in the mortgage document itself?

Back 179

No - this is clogging of the equity, violates public policy

Front 180

What is statutory redemption?

Back 180

It gives the debtor-mortgagor a statutory right to redeem for some fixed period after the foreclosure sale has occurred, for the foreclosure sale price (not the amount of the original debt)

Front 181

Who may use groundwater and under what conditions?

Back 181

Surface owner, but use may not be wasteful

Front 182

What is an implicit or regulatory taking?

Back 182

A regulation that works an economic wipeout of the investment

Front 183

What is the remedy for a regulatory taking?

Back 183

Government must compensate owner or terminate the regulation and pay owner for damages occurring while the regulation was in effect

Front 184

What is the root of zoning power? And what does it allow? Exceptions are called…

Back 184

Police powers… Governments may enact statutes to reasonably control land use… variances

Front 185

What is an exaction?

Back 185

Amenities that government seeks in exchange for granting permission to build, such as streetlights, parks, wider roads

Front 186

Third party standing - exceptions

Back 186

P must meet other standing requirements, and either close relationship between P and injured 3d party (parent/child; doctor/patient) or injured 3d party unlikely to be able to assert his/her own rights; organization may sue if members would have standing, interests are germane to organization's purpose, neither claim nor relief requires participation of individual members

Front 187

What criteria do courts consider in deciding ripeness questions?

Back 187

Hardship that will be suffered without preenforcement review, and fitness of the issues and the record for judicial review

Front 188

Mootness exceptions:

Back 188

Capable of repetition, evading review; class actions; voluntary cessation

Front 189

Which cases must come to Supreme Court by writ of certiorari (ie discretionary review)?

Back 189

All state court cases, all cases from U.S. court of appeals

Front 190

For the Supreme Court to review a state court decision, there must not be …

Back 190

an independent and adequate state law ground of decision

Front 191

When may states be sued - AKA, when does sovereign immunity not apply? (4)

Back 191

Express waiver, federal laws adopted under § 5 of 14A (which authorizes Congress to pass laws enforcing the 14A), suits by federal government, bankruptcy proceedings

Front 192

What does abstention mean in context of constitutional law?

Back 192

Federal courts may not enjoin pending state proceedings (even though federal court has jx and all justiciability requirements are met)

Front 193

When does Congress have police power?

Back 193

MILD: When legislating for MILITARY, INDIAN reservations, federal LAND/territories, D.C.

Front 194

What does the 10A keep Congress from doing?

Back 194

Compelling state legislative or regulatory activity

Front 195

Who may be impeached?

Back 195

President, VP, all officers of U.S.

Front 196

For which offenses may Congress impeach

Back 196

treason, bribery, high crimes/misdemeanors

Front 197

Does impeachment remove a person from office?

Back 197

No - a trial in the senate must follow (impeachment is in the House)

Front 198

When does the President have absolute immunity?

Back 198

For civil suits for money damages for anything President do to carry out office while in presidency

Front 199

When must executive privilege yield?

Back 199

Other important government interests (e.g., need for evidence to support defense in criminal trial)

Front 200

How to analyze a law that doesn't discriminate among states?

Back 200

If the law burdens interstate commerce, it violates the dormant commerce clause if its burdens exceed its benefits.

Front 201

When does a state/local law NOT violate the Dormant Commerce Clause, if it discriminates against out of staters and burdens interstate commerce?

Back 201

ONLY when it is necessary to achieve an important governmental purpose (2 exceptions: Congressional approval of state/local law, market participant)

Front 202

When does a state/local law NOT violate the Privileges and Immunities Clause of Art. IV, if it discriminates against out-of-staters with regard to their ability to earn a livelihood?

Back 202

When discrimination is necessary to achieve an important governmental purpose (civil liberties or important economic activities)

Front 203

When may state tax activities?

Back 203

If there is a substantial nexus to the state

Front 204

In what situations must private conduct comply with the Constitution?

Back 204

Public function (private entity performing a task traditionally/exclusively done by government - e.g., running a town, holding elections), entanglement (government affirmatively authorizes, encourages, facilitates unconstitutional activity - e.g., racially restrictive covenants

Front 205

Does the public function exception apply to private utilities (e.g., must the utility provide due process before cutting off service)?

Back 205

No. Running a utility is not a task that has been traditionally, exclusively done by government

Front 206

How do we consider whether a person has a property interest?

Back 206

Whether there is an entitlement = a reasonable expectation of continued receipt of a benefit

Front 207

Due process violation analysis:

Back 207

Has there been a deprivation of life, liberty, or property? What procedures are required?

Front 208

When can an officer be held liable for due process violation, in an emergency case?

Back 208

Only if officer's act shocks the conscience and was intentional

Front 209

What procedure is required for termination of welfare benefits?

Back 209

Notice and hearing

Front 210

What procedure is required for an American citizen detained as an enemy combatant?

Back 210

Due process

Front 211

What is a possessory taking?

Back 211

Government confiscation or physical occupation of property is always a taking

Front 212

Is the government's temporarily denying an owner use/development of property a taking?

Back 212

No, not if the government's action was reasonable.

Front 213

What is the standard for state/local interference with government contracts?

Back 213

Strict scrutiny

Front 214

Regulation of abortions: Prior to viability…

Back 214

The government cannot prohibit abortions, but may regulate abortion so long as they do not place an undue burden on the ability to obtain an abortion

Front 215

Regulation of abortions: After viability…

Back 215

States may prohibit abortions unless necessary to protect the public's life/health

Front 216

How is the existence of a racial classification proven?

Back 216

Classification exists on the face of the law; if law is facially neutral, proving racial classification requires demonstrating both discriminatory impact and discriminatory intent

Front 217

What is the standard for racial classifications benefiting minorities?

Back 217

Strict scrutiny

Front 218

Numerical set-asides to benefit minorities require…

Back 218

clear proof of past-discrimination

Front 219

How is the existence of a gender classification proven?

Back 219

Classification exists on the face of the law; if law is facially neutral, proving gender classification requires demonstrating both discriminatory impact and discriminatory intent

Front 220

What standard is used for alien classifications when government discriminates against non-citizens?

Back 220

Strict scrutiny, but several exceptions (RBR for self-government and democratic process→ Voting, serving on jury, being police officer, teacher or probation officer) (Congressional discrimination against aliens; apparently, intermediate scrutiny for discrimination against undocumented alien children)

Front 221

Free speech methodology

Back 221

Content-based v. content-neutral, prior restraint, vagueness/overbreadth, symbolic speech, anonymous speech

Front 222

Content-based restrictions on speech generally must meet…

Back 222

Strict scrutiny

Front 223

Content-neutral restrictions on speech generally must meet…

Back 223

Intermediate scrutiny

Front 224

Gag orders on the press to prevent prejudicial pretrial publicity…

Back 224

are not allowed

Front 225

Procedurally proper court orders…

Back 225

must be complied with until they are vacated or overturned

Front 226

When may the government require a license for speech?

Back 226

Only if there is an important reason for licensing and clear criteria leaving almost no discretion to the licensing authority; licensing schemes must contain procedural safeguards, such as prompt determination of requests for licenses and judicial review

Front 227

Are laws prohibiting fighting words protected by the First Amendment?

Back 227

No, because they are unconstitutionally vague and overbroad

Front 228

Which speech is unprotected/less protected by the First Amendment?

Back 228

Incitement of illegal activity, obscenity and sexually-oriented speech, commercial speech, defamation, privacy

Front 229

Is profane and indecent speech protected by the First Amendment?

Back 229

Yes, except over broadcast media (FREE, over-the-air TV/radio) or in schools

Front 230

Generally, what is the standard for regulating commercial speech?

Back 230

Intermediate scrutiny

Front 231

In public forums, how may regulations avoid strict scrutiny?

Back 231

Only if the regulations are subject matter d viewpoint neutral - then, intermediate scrutiny - time/place/manner restriction must be a time, place or manner regulation that serves an important government purpose and leaves open adequate alternative places for communications

Front 232

Does government regulation of speech in public forums need to use the least restrictive alternative?

Back 232

No

Front 233

What kind of right is freedom of association?

Back 233

Fundamental right

Front 234

To punish membership in a group, it must be proven that the person:

Back 234

actively affiliated with the group, knowing of its illegal activities, with specific intent of furthering those activities

Front 235

Can federal government action violate the equal protection clause?

Back 235

No, because the equal protection clause is part of the 14th amendment, which doesn't apply to the federal government. BUT, grossly unreasonably discrimination by the federal government violates Fifth Amendment due process, using the same standards as for 14th Amendment equal protection violations.

Front 236

What is the standard for regulations of commercial speech that concerns a lawful activity and is not misleading or fraudulent?

Back 236

The regulation will be valid if it (i) serves a substantial government interest, (ii) directly advances the interest, and (iii) is narrowly tailored to serve the substantial interest

Front 237

When must govt use least restrictive means in regulating speech?

Back 237

Prior restraints.

Front 238

Fee simple determinable - language to create

Back 238

"To A so long as...", "To A until..." "To A while…" (clear durational language)

Front 239

Fee simple subject to condition subsequent - language to create

Back 239

"To A, but if X event happens, grantor reserves the right to reenter and retake" (Grantor must carve out right of reentry)

Front 240

Fee simple subject to condition subsequent - future interest

Back 240

Right of entry/power of termination (grantor must exercise)

Front 241

Fee simple subject to an executory limitation - language to create

Back 241

"To A, but if X event occurs, then to B"

Front 242

Life tenant is entitled to

Back 242

all ordinary uses/profits from the land

Front 243

Future interests in transferees (3)

Back 243

Vested remainder, contingent remainder, executory interest

Front 244

Vested remainder (2)

Back 244

Created in an ascertained person, is not subject to any condition precedent

Front 245

Contingent remainder - creation (2)

Back 245

Created in as yet unborn or unascertained persons/subject to a condition precedent

Front 246

Shifting executory interest cuts short

Back 246

Someone other than the grantor

Front 247

Springing executory interest cuts short

Back 247

The Grantor

Front 248

Interests subject to the rule against perpetuities (4)

Back 248

Contingent remainders, executory interests, vested remainders subject to open, rights of first refusal

Front 249

Interests NOT subject to the rule against perpetuities (3)

Back 249

Any future interest in O, indefeasibly vested remainders, vested remainders subject to complete defeasance

Front 250

What kind of constitutional issue? - subparts (3)

Back 250

Separation of Powers - branches of government, B. Federal Legislative Powers, C. State interference with Federal System

Front 251

Federal Legislative Powers - subparts (3)

Back 251

Source of power, 2. Necessary & Proper clause, 3. 10th Amendment limitations

Front 252

State Interference with Federal System - subparts (3)

Back 252

1 Preemption, 2. Dormant Commerce Clause. 3. Privileges & Immunities Clause (Art. IV and 14th Amendment)

Front 253

Sources of power - subparts (9)

Back 253

a. Commerce Clause, b. Spending, c. Taxing, d. Taking Property, e. Citizenship, f. Civil Rights, g. Foreign affairs, h. War, i. Elections

Front 254

Speech - subparts (3)

Back 254

1 Prior restraint, 2. Vagueness or overbreadth, 3. Content or content neutral

Front 255

Content regulations - subparts (5)

Back 255

Advocacy of unlawful conduct, defamation, obscenity, fighting words, commercial speech

Front 256

Content neutral - subparts (4)

Back 256

Time, place & manner; public forums; symbolic expression; freedom of association

Front 257

Taking - subparts (3)

Back 257

1. For public use? 2. Taking requiring just compensation v. regulation under police power not requiring just compensation; 3. What is just compensation? (usually FMV)

Front 258

Retroactive legislation - subparts (3)

Back 258

1. Impairment of contract, 2. Ex Post Facto Laws, 3. Bills of attainder

Front 259

Scrutiny - subparts (3)

Back 259

a. Strict scrutiny - compelling state interest, means necessary to achieve state interest, narrowly tailored - least restrictive alternative, b. intermediate scrutiny - important state interest and means substantially related to the interest, c. rational basis review - legitimate state interest and means rationally related to the interest.

Front 260

What are T's duties?

Back 260

Liability to 3d parties to keep land in reasonably good repair, duty to repair, duty to pay rent

Front 261

What is retaliatory eviction?

Back 261

If T lawfully reports L for housing code violations, L may not penalize T (e.g., by raising rent, harassing T, ending lease).

Front 262

What does caveat lessee mean?

Back 262

Under common law, L is under no duty to make premises safe (exceptions - CLAPS)

Front 263

What happens if a tenant fails to remove chattels before the termination of tenancy?

Back 263

Tenant forfeits the chattels, even if he could have legally removed them earlier

Front 264

Crim--Omission as an act gives rise to liability only when (3)

Back 264

Specific duty to act, D has knowledge of facts giving rise to duty, reasonably possible to perform

Front 265

Specific intent crimes (11)

Back 265

Inchoate offenses (Solicitation (to have person solicited commit the crime), attempt (to complete crime - even when crime attempted doesn't require intent), conspiracy (to have the crime completed)); first degree murder (premeditation); assault (to commit battery), larceny & robbery (to permanently deprive other of interest in property taken); burglary (to commit felony in dwelling), forgery (to defraud), false pretenses (to defraud), embezzlement (to defraud)

Front 266

Malice crimes:

Back 266

Rape, murder- CL

Front 267

General intent crimes (4 common)

Back 267

Battery, rape, kidnapping, false imprisonment

Front 268

Transferred intent crimes (3)

Back 268

Homicide, battery, arson

Front 269

In transferred intent crimes, which are available for prosecution?

Back 269

The crime actually committed, the attempted crime not committed

Front 270

Specific intent mens rea

Back 270

intent to engage in proscribed conduct

Front 271

Accomplices are liable for

Back 271

Originally intended crime and all other foreseeable crimes committed by the principles

Front 272

General intent mens rea

Back 272

awareness of acting in proscribed manner

Front 273

Malice mens rea

Back 273

reckless disregard of known risk

Front 274

Strict liability statutes involve…

Back 274

crimes in administrative, regulatory, morality area, and statute involves no adverbs

Front 275

Strict liability mens rea

Back 275

conscious commission of proscribed act (objective)

Front 276

Strict liability crimes - defenses

Back 276

ONLY insanity, involuntary intoxication, possibly duress

Front 277

Purposely mens rea

Back 277

conscious object to engage in proscribed action

Front 278

Knowingly mens rea

Back 278

awareness that conduct is of a particular nature or will cause a particular result

Front 279

Conspiracy - elements (4)

Back 279

Agreement by at least two persons, intent by at least two persons to enter into agreement (not found if one is undercover agent), intent by at least two persons to achieve the unlawful objection (mistake of fact is defense, but not mistake of law), overt act or act of mere preparation

Front 280

Conspiracy - agreement - MPC unilateral approach

Back 280

D can be convicted of conspiracy even if all other parties have been acquitted or were only feigning agreement

Front 281

Attempt - elements (3)

Back 281

Act - a "substantial step" (beyond mere preparation), done with specific intent to commit the target offense, that falls short of completing the offense (old /minority rule = act had to put D dangerous proximity to success)

Front 282

Attempts - defense

Back 282

Legal impossibility (not factual)

Front 283

Attempt - abandonment

Back 283

Not defense

Front 284

Defense - insanity - ALI/MPC test

Back 284

D lacked substantial capacity to either appreciate the criminality of his conduct or conform his conduct to the requirement of law, as a result of mental defect

Front 285

Involuntary intoxication has the same legal effect as…

Back 285

Insanity - it is a defense to ALL crimes, including strict liability, once it is established that the intoxication caused the actus rea

Front 286

Defense - self-defense - use of force by an initial aggressor is ONLY OK when

Back 286

Original aggressor has withdrawn and says something like "I'm all done now"; a non-deadly aggressor is defending himself against a deadly response (NOTE: aggressor is still guilty of the initial crime) - either way, an initial aggressor must retreat if safe avenue available before using deadly force in self-defense

Front 287

Descriptive words (I'm going to kill you; I just shot your brother) can be….

Back 287

initial aggression or provocation (not insults)

Front 288

Defense - diminished capacity

Back 288

D has mental defect short of insanity and so lacks required mental state to commit the crime

Front 289

Homicide - involuntary manslaughter

Back 289

Killing committed with criminal negligence or during commission of unlawful act - either a misdemeanor or an un-enumerated felony

Front 290

Homicide - murder - felony murder

Back 290

Death foreseeably caused in commission of, or in attempt to commit an inherently dangerous felony, before D's "immediate flight"

Front 291

Homicide - murder - felony murder - defenses

Back 291

defense to the underlying felony; foreseeable; point of temporary safety; not liable for death of a co-felon as a result of resistance by the victim or the police

Front 292

kidnapping v. false imprisonment

Back 292

kidnapping= Unlawful confinement of a person that involves either movement of V or concealment of V in "secret" place

Front 293

Assault - two types

Back 293

Assault as an attempted battery (specific intent crime), assault as a threat (general intent crime) - test will specify

Front 294

Rape - elements

Back 294

unlawful carnal penetration of a woman by a man, not her husband (traditional/MPC), without effective consent. (mistake as a defense must be reasonable b/c rape= general intent crime)

Front 295

Larceny - elements

Back 295

Taking and carrying away of tangible personal property known to be that of another by trespass with intent to permanently deprive

Front 296

To be larceny, does the property have to be taken from the rightful owner?

Back 296

No - larceny is a crime against rightful posession (can't take car from mechanic without paying)

Front 297

Is taking the ming vases to juggle them, then bringing them back, larceny?

Back 297

Yes, because intent to risk the property qualifies is intent to permanently deprive

Front 298

Embezzlement - elements

Back 298

Fraudulent conversion of personal property of another by a person in lawful possession of the property

Front 299

If title is acquired by the alleged perpetrator, the crime is not _________ or ________, but __________

Back 299

Not larceny or embezzlement, but false pretenses

Front 300

False pretences - elements

Back 300

Obtaining title to personal property of another by an intentional false statement of past or present fact with intent to defraud; V must be deceived by the misrepresentation

Front 301

Larceny by trick

Back 301

Larceny in which D gives up possession of property ecause of a lie(distinguish false pretences in which D gives up title)

Front 302

Receipt of stolen property

Back 302

Receiving possession and control of stolen personal property, known to have been obtained in a manner constituting a criminal offense by another person with the intent to permanently deprive

Front 303

Forgery

Back 303

Making or altering a writing with apparent legal significance so that it is false with intent to defraud

Front 304

Malicious mischief

Back 304

Malicious destruction of or damage to property of another

Front 305

Arson - elements (CL)

Back 305

Malicious burning of any structure or dwelling (C/L - only dwelling of another) - need charring

Front 306

Perjury

Back 306

Intentional taking of a false oath in regard to a material matter

Front 307

Subornation of perjury

Back 307

Procuring or inducing another to commit perjury

Front 308

Valid search under 4th Am

Back 308

(1) Warrant, (2) proper or relied on in good faith, (3) properly executed OR EXCEPTION

Front 309

unconstitutionally obtained evidence may be admissible for…

Back 309

Impeachment (except not for coerced confessions, post-Miranda silence, Massiah (6th Amendment right to counsel) violations)

Front 310

Exception to good faith reliance on a defective search warrant

Back 310

Affidavit is so lacking in probable cause that no reasonable officer would rely on it, intentional misrepresentation in affadavit

Front 311

Constitutional requirements NOT binding on states

Back 311

Right to indictment by a grand jury for capital/infamous crimes; unclear whether 8th Amendment prohibition against excessive bail

Front 312

Who bears burden of establishing admissibility of evidence, and by what standard?

Back 312

Prosecution, and by a preponderance of the evidence

Front 313

What is D's right in a suppression hearing?

Back 313

D may testify w/o testimony being admitted against him at trial on the issue of guilt

Front 314

What are the requirements for an arrest?

Back 314

Must be based on probable cause - trustworthy facts/knowledge sufficient for a reasonable person to believe that the suspect has committed or is committing a crime; warrant required only for a nonemergency arrest of a person in his home, meaning a place where someone lives or is spending the night

Front 315

Stop and frisk std:

Back 315

Police must have reasonable suspicion of criminal activity/involvement in a completed crime, supported by articulable facts

Front 316

When can investigatory detentions turn into arrest?

Back 316

If detainee fails to comply with request to say his name; if other probable cause for arrest arises

Front 317

Search and seizure model

Back 317

Was there state action? Does D have standing to object? Is there a valid search warrant? If not, does it fall into an exception allowing warrantless search?

Front 318

If search/seizure is in violation of local/state/federal law, must it be suppressed?

Back 318

No - only when search/seizure is in violation of Constitution

Front 319

Requirements for search incident to lawful arrest

Back 319

Arrest must be lawful and come before the search) and contemporaneous in time and place to the arrest, geographic scope must be limited to suspect's wingspan (keeps D from swallowing drugs/grabbing weapons); protective sweeps

Front 320

What does a prospective sweep allow?

Back 320

Police incident to an arrest in a residence may look in areas "immediately adjoining" the place of the arrest for other persons who might attack the police - no probable cause/reasonable suspicion required. Back rooms - require reasonable suspicious

Front 321

What does the automobile exception allow?

Back 321

Probable cause required, but no warrant (for trunk areas, RS suff in car passenger compartment)

Front 322

Searches at a border (point of entry/customs) require…

Back 322

No probable cause, no warrant, not even reasonable suspicion

Front 323

Searches at a border, away from the point of entry/customs…

Back 323

are governed by all normal search/seizure rules

Front 324

When may items discovered in plain view be seized?

Back 324

Only if there is probable cause to connect the item to the crime (unless the item is abandoned property - no reasonable expectation of privacy in such property)

Front 325

What are the requirements for consent?

Back 325

Consent must be voluntary and intelligent; police do not have to warn suspects that they have a right to refuse to consent

Front 326

What is the general rule re wiretapping?

Back 326

All wiretapping and eavesdropping require warrant - BUT we all assumed he risk that the person to whom we are speaking has agreed to allow the police to listen to the conversation

Front 327

When does jeopardy attach itself to a case?

Back 327

When D pleads guilty or a jury is sworn or, in judge trial, when the first witness takes the stand and is sworn to tell the truth

Front 328

Exceptions permitting retrial:

Back 328

Hung jury, mistrial is granted after having been requested by the defense or even if over defense objection for manifest necessity (e.g., D becomes seriously ill during trial, or D bribed jury), successful defense appeals (except for reversal based on insufficiency of the evidence at trial), failure of D to keep an agreed-upon plea bargain (DOESN’T APPLY IF DIFFERENT SOVEREIGNS WHO TRY HIM)

Front 329

D can object to the admissibility of ________ confession

Back 329

His, but only his

Front 330

Why is there no requirement to give Miranda warnings in a public safety scenario?

Back 330

Because S may be more likely to answer, and public policy wants an answer

Front 331

What is the 6th Amendment right to counsel?

Back 331

If suspect has attorney, and proceedings have begun, government may not ask D about charged offenses without his attorney present (whether or not D is in custody)

Front 332

For which line-ups is D entitled to Counsel under the Sixth Amendment Right to Counsel?

Back 332

Post-indictment/arraignment in-person line-ups

Front 333

Where line up council violation occurs, excluded at trial, but can do in court if

Back 333

clear and convincing evidence, that there was an independent source for W's in-court identification

Front 334

When is an indigent person entitled to appointed counsel?

Back 334

When conviction would lead to jail time - so it's required in misdemeanors only if jail sentence is actually imposed (and it include necessary experts when a felony)

Front 335

When does the Sixth Amendment right to speedy trial apply?

Back 335

Only to post-arrest delays. Pre-arrest delays are unconstitutional only if they violate D's due-process rights

Front 336

It's cruel and unusual punishment to impose death penalty on someone who

Back 336

was under 18 when crime was committed, or who is mentally retarded (as defined by state law) or who is at the time of their execution legally insane

Front 337

If you initiate a grant of mistrial in your first trial, you can't plead __________ in the second one.

Back 337

Double Jeopardy

Front 338

Does a search warrant authorize the police to search persons found on the premises who are not named in the warrant?

Back 338

No, but if police have probable cause to arrest someone found on the premises, they may search him incident to the arrest

Front 339

____________ makes an identification inadmissible if it is ______________ and there is ____________

Back 339

Fourteenth Amendment Due Process; unneccessarily suggestive and there is a substantial likelihood of misidentification

Front 340

Police need __________ to detain; ___________ to arrest

Back 340

Reasonable suspicion; probable cause

Front 341

__________ requires that D not be questioned by police after __________________

Back 341

Sixth Amendment; after formal charges have been filed

Front 342

A confession ________________ can be used for the limited purposes of impeaching D, but ________________ can never be used to impeach

Back 342

taken in violation of Miranda; an involuntary confession

Front 343

___________ receives, relieves, comforts, or assists another knwoing he has committed a felony, in order to help the felon escape arrest, trial or conviction

Back 343

Accessory after the fact

Front 344

Cant waive rt to council if…

Back 344

Judge determines defendant isn’t capable of representing self

Front 345

What is the consequence of violation of D's right to represent himself?

Back 345

Overturned conviction

Front 346

___________ requires that a confession be voluntary.

Back 346

The Fourteenth Amendment/due process.

Front 347

How does D challenge probable cause in a warrant?

Back 347

By showing that affiant intentionally or recklessly included a false, material statement

Front 348

When is the Sixth Amendment Right to Counsel violated re informants?

Back 348

When an undisclosed, paid government informant is place in D's cell, after D has been indicted/charged, and deliberately elicits statements from D recarding the crime for which D has been charged

Front 349

What is the term for a llawful police search of a residence beyond D's wingspan, and what is required to do it?

Back 349

Protective sweep, authorized if police believe accomplices may be present, or to secure premises while a warrant is obtained.

Front 350

UCC/CL differences

Back 350

Offer missing price (not offer, CL only); Firm offer rule (only in UCC); Mirror image rule (CL rule); Contract based on conduct (CL: acceptance of counteroffer; UCC: new contract based on conduct); Legal duty rule (CL requires consideration to change; UCC does not); contract provision requiring that all modifications be in writing (not effective under common law; effective unless waived under UCC); Perfect tender (UCC only; CL counterpart is "substantial performance"/"material breach")

Front 351

Quasi contract recovery is… and maxes out at…

Back 351

Unjust enrichment… contract price as a ceiling if P is in default

Front 352

What are the three stages of the agreement process?

Back 352

Offer, termination of the offer, acceptance

Front 353

Rules re missing price term in sales contract

Back 353

CL (real estate contracts) - price term IS required for there to be an offer; UCC - an offer without price term may be an offer, if the parties so intend

Front 354

Can an offer contain vague/ambiguous terms?

Back 354

Yes - but NOT vague/ambiguous material terms - "appropriate, fair, reasonable"

Front 355

An advertisement _______ offer, unless _________

Back 355

is not an; unless reward or specific to quantity and expressly indicates who can accept (e.g., first come first served)

Front 356

How can offer terminate?

Back 356

Lapse (of time stated, or a reasonable time), Death of either party before acceptance (unless option, part performance of offer to enter into unilateral contract), Revocation (unambiguous statement by offeror), Rejection

Front 357

Firm offer rule (UCC only)

Back 357

Offer cannot be revoked for up to three months if (i) offer to buy/sell goods, (ii) signed, written promise to keep the offer open, and (iii) party is a merchant (no need for payment)

Front 358

"Merchant" (in terms of UCC firm offer rule)

Back 358

a person in business generally

Front 359

Difference between counteroffer/bargaining on bar exam?

Back 359

Only bargaining is in the form of a question

Front 360

Mirror image rule

Back 360

A response that adds new terms = a counter-offer (so, an indirect rejection of original offer)

Front 361

Approach to UCC 2-207 questions (a fact pattern where there is an offer to buy/sell goods, and a response with additional terms) =

Back 361

Is there a contract (answer is always yes, unless language is conditional). Is the additional term a part of the contract? (If one or both parties is not a merchant - no; if both merchants - yes, unless new term is material alteration or offeror objects)

Front 362

6 possible forms of acceptance

Back 362

(1) Improper verbal response to offer, then later conduct indicating a contract (CL: treated as acceptance of a counteroffer; UCC - NEW CONTRACT, based solely on conduct); (2) offeree fully performs; (3) offeree begins performance; (4) offeree promises to perform; (5) mailbox rule; (6) seller sends wrong goods (general rule: acceptance and breach; exception (frequent) - counteroffer and no breach)

Front 363

If unilateral contract can be accepted only by performance, does start of performance count?

Back 363

No. But note - offeror may not revoke if performance has begun

Front 364

Impt easy to forget rule re mailbox rule:

Back 364

if rejection is mailed before acceptance is mailed, then neither is effective until received

Front 365

If seller sends the wrong thing in response to an offer to buy, is there a contract?

Back 365

Yes, delivery is acceptance; seller has breached - unless accommodation exception - seller sends wrong goods with explanation, creating a counteroffer and no breach

Front 366

Preexisting duty rule

Back 366

CL - new consideration is required for contract modification. Exception - addition to/change in performance; unforeseen difficulty so severe as to excuse performance; 3d party promise to pay; merely correcting mistake

Front 367

What must be remembered about modification in UCC?

Back 367

OK w/o consideration, but must be done IN GOOD FAITH

Front 368

If a debt is _____________, then part payment is __________ for the release

Back 368

not yet due or disputed, consideration

Front 369

A promise to satisfy an obligation for which there is a legal defense (statute of limitations) is ___________________

Back 369

enforceable without consideration - but only if promise is in writing

Front 370

What are the elements of promissory estoppel?

Back 370

Promise, reliance that is reasonable, detrimental and foreseeable, enforcement necessary to avoid injustice

Front 371

Legal significance of lacking capacity

Back 371

Person without capacity has right to disaffirm - but he can enforce agreement; and, implied affirmation by retaining benefits after gaining capacity; quasi-contract liability for necessaries

Front 372

What's the difference between promising to pay someone else's debt and guaranteeing it?

Back 372

Guarantee is a promise to pay only if the obligee does not pay. (guarantees come within SOF, but not just regular promises to pay another’s debts)

Front 373

Does a contract "for life" fall within the Statute of Frauds?

Back 373

No - because P could die within the year, it can theoretically be performed within the year.

Front 374

Whether a written services contract satisfies the Statute of Frauds is determined by the ____________

Back 374

All material terms test, meaning "who" is making the agreement and "what" it is that they've agreed on

Front 375

What is the exception to the rule that a written contract for sale of goods must be signed by the person asserting the Statute of Frauds defense?

Back 375

The Merchant Failure to Respond Rule: If both parties are merchants, and the person who receives a signed writing with a quantity term that claims there is a contract fails to respond within 10 days of receipt, the statute of frauds is satisfied - merchant who fails to respond loses Statute of Frauds defense.

Front 376

If the party asserting the statute of frauds defense _____________ in __________, the statute of frauds is satisfied - there is no defense.

Back 376

admits that there was an agreement…. a judicial setting

Front 377

A contract provision requiring that all modifications be in writing is ___________ under common law; __________ under the UCC.

Back 377

not effective (unless general rule re writing requirements for contract modification applies); effective unless waived

Front 378

A misrepresentation of ____________ that induces the contract makes the contract _____________, even if _________________.

Back 378

Existing fact… unenforceable… the party "honestly" or "innocently" believes the fact to be true

Front 379

A nondisclosure makes a contract unenforceable ________________.

Back 379

only if it is wrongful.

Front 380

What does P need to void an agreement due to economic duress?

Back 380

D's wrongful threat to breach an existing contract, coupled with the vulnerability of P

Front 381

The two basic tests for unconscionability are

Back 381

unfair surprise (procedural) and oppressive terms (substantive).

Front 382

A contract is unenforceable because of ambiguity if…

Back 382

the parties use a material term that is open to at least two reasonable interpretations, each party attaches different meaning to the term, and neither party knows or has reason to know that the term is open to at least two reasonable interpretations

Front 383

In interpreting contract, courts look first to _____, then to fill in gaps or explain words, they look to ________, then ______, then ____________.

Back 383

Express terms… course of performance… course of dealing … custom and usage

Front 384

Four risk of loss rules - analyze in order

Back 384

(1) Agreement of party controls; (2) breaching party is liable for any uninsured even though breach is unrelated to problem; (3) if delivery is by common carrier other than seller, risk of loss shifts from seller to buyer when seller completes delivery obligations; (4) if merchant seller, risk of loss shifts to buyer on buyer's "receipt" - if non-merchant seller, risk of loss shift to buyer when he/she tenders the goods.

Front 385

What is the implied warrant of merchantability

Back 385

A term added, when any person buys any good from any merchant, that the good is fit for the ordinary purposes for which such goods are used

Front 386

Privity is involved in __________, not __________ actions.

Back 386

contract, not tort

Front 387

Disclaimer eliminates ___________, only if _____ or ________

Back 387

implied warranties only - including merchantability/fitness for particular purpose (not express warranties), only if CONSPICUOUS language of disclaimer, mentioning merchantability, or words "as is" or "with all faults"

Front 388

What is the general test of limitation of warranties?

Back 388

Prima facie unconscionable if breach of warranty on consumer goods causes personal injury

Front 389

Seller has the option to cure when…

Back 389

Seller had reasonable grounds to believe it would be OK to deliver a less-than-perfect good (e.g., course of dealing), even if contract delivery date is past; OR, time for performance had not yet expired

Front 390

Does the perfect tender rule apply to installment contracts?

Back 390

No - the test is the substantial impairment test

Front 391

Is payment acceptance?

Back 391

Not unless there is also opportunity for inspection

Front 392

Privity in products liability w/r/t warranties

Back 392

Yes you need it in contracts, but close members of family or household can also sue for the most part. In torts, you do NOT need privity for products liability.

Front 393

Reclamation is available if…

Back 393

Buyer was insolvent at the time that buyer received the goods, and seller demands return goods within 10 days of receipt (see exception), and buyer still has goods at time of demand

Front 394

Put plaintiff in same monetary situation as he would have been in by giving _____ damages

Back 394

Reliance or expectation damages (can then turn to Restitutionary dmgs)

Front 395

If seller breaches, buyer keeps the goods, the formula for damages under UCC is

Back 395

fair market value if perfect - fair market value as delivered

Front 396

If seller breaches, seller has the goods, the formula for damages under UCC is…

Back 396

Either (market price at time of discovery of the breach - contract price) or (replacement price - contract price)

Front 397

If buyer breaches, buyer keeps the goods, the formula for damages under UCC is…

Back 397

contract price

Front 398

If buyer breaches, seller has the goods, the formula for damages under UCC is…

Back 398

Either (contract price - market price at time/place of delivery) or (contract price - resale price); for volume seller selling from regular inventory, provable lost profits

Front 399

Additions and limitations to damages

Back 399

Plus Incidental damages, plus foreseeable consequential damages, less avoidable damages

Front 400

If damages arise from P's special circumstances, what's the fact that needs to be shown to determine whether P can recover consequential damages… and what other issue is implicated?

Back 400

What P told D before the contract was executed… parol evidence rule

Front 401

Liquidation damages are only enforceable when…

Back 401

damages were difficult to forecast at the time the contract were made, and the provision is a reasonable forecast

Front 402

Damages can be recovered for _______ breach, but only a ________ breach is an excuse

Back 402

any … material

Front 403

If there is substantial performance, then the breach is _______

Back 403

not material

Front 404

___________ is required for the satisfaction of a condition

Back 404

Strict compliance

Front 405

How can a condition be excused?

Back 405

Waiver/estoppel, prevention, avoidance of forfeiture

Front 406

In an anticipatory breach situation, when can P sue immediately/not?

Back 406

P can sue immediately if P has not finished performance; P must wait until date payment is due if P HAS finished performance.

Front 407

Anticipatory breach can be reversed or retracted so long as __________

Back 407

there has been no material change in position by the other party

Front 408

An accord and satisfaction is

Back 408

An agreement by which parties to an already existing obligation accept a different performance in satisfaction of the existing obligation - the existing obligation is excused.

Front 409

If the accord is not performed, the other party can sue on ________.

Back 409

Either the original agreement or the accord.

Front 410

What words may identify a later agreement as an accord and satisfaction, rather than a modification?

Back 410

"If" and "then" - indicate an accord

Front 411

Death after a contract has been formed is NOT an excuse, UNLESS

Back 411

the party who died is a "special" person

Front 412

Only _______ beneficiaries have contract law rights; __________ third parties do not; ________ determines which a third party is.

Back 412

intended… incidental… intent of parties.

Front 413

With third-party beneficiaries, contracts cannot be canceled changed if…

Back 413

the third party knows of and has relied on/assented as requested to the contract

Front 414

Who can sue whom, with a 3d party beneficiary?

Back 414

Beneficiary or promisee (but not both) can recover from promisor; beneficiary cannot recover from promisee UNLESS there was a pre-existing debt

Front 415

Language of prohibition

Back 415

takes away the right to assign, but not the power to assign - "rights hereunder are assignable" - which means the assignor is liable for breach of contract, but an assignee who does not know of the prohibition can still enforce the agreement (compare to invalidation language which does take away rt to enforce from assignee)

Front 416

Common law bars an assignment…

Back 416

that substantially changes the duties of the obligor

Front 417

In an assignment, _________ can recover from the obligor, but ____________ cannot.

Back 417

Assignee … assignor for consideration

Front 418

Big difference between third party beneficiaries and assignees -

Back 418

3d party - either beneficiary or promisee can recover from promisor; Assignments - only assignee can recover from obligor - assignor cannot recover

Front 419

Assignor does not warrant…

Back 419

what the obligor will do

Front 420

Delegations are permitted unless either _______________

Back 420

the contract prohibits delegations or prohibits assignments, or the contract calls for very special skills, or the person to perform the contract has a very special reputation

Front 421

A contract that prohibits assignments also…

Back 421

prohibits delegations

Front 422

What if after delegation the third party delegatee does not perform?

Back 422

Delegating party always remains liable. Delegatee liable only if she receives consideration from delegating party

Front 423

When is consideration not required to modify a contract at common law?

Back 423

When parties are modifying merely to correct an error.

Front 424

Does the perfect tender rule apply to installment contracts?

Back 424

No - the test is the substantial impairment test

Front 425

Subscriber

Back 425

a person or entity who makes a written offer to buy stock from a corporation not yet formed

Front 426

Can a subscriber revoke a preincorporation offer to buy stock in a corporation not yet formed?

Back 426

No - such an offer is irrevocable for six months

Front 427

A foreign corporation that wants to do business in California must file a _________ that includes _____________.

Back 427

certificate of authority… all information that is required in the articles.

Front 428

Issuance occurs…

Back 428

only when a corporation is about to sell its OWN shares of stock - not when 3d parties buy/sell shares from each other

Front 429

Treasury stock is _________.

Back 429

stock previously issued, now repurchased, by the corporation; it may be resold by corporation.

Front 430

Treasury stock can be sold for ____________, because it is ________ stock.

Back 430

any valid consideration deemed adequate by the board … no par stock.

Front 431

What if corporation issues par stock for less than par value?

Back 431

Corporation can elect to recover difference from either its own directors (because they're liable personally for authorizing below-par issuance) or from purchasing shareholder, who is liable (only) to pay full consideration (= par value) for the shares.

Front 432

Preemptive right

Back 432

right of an existing shareholder to maintain her percentage of ownership by buying stock whenever there is a new issuance of stock for cash.

Front 433

Shareholders can remove a director before her term expires - how?

Back 433

with or without cause.

Front 434

_______ of directors' meetings can be set in bylaws.

Back 434

Notice

Front 435

Each director is presumed to ___________, unless her ________ or _________ is recorded __________.

Back 435

have concurred in board action... dissent … abstention… in writing.

Front 436

Corporations must have these officers:

Back 436

President, secretary, treasurer

Front 437

A corporation may never indemnify a director or officer who

Back 437

has lost a lawsuit to their own corporation.

Front 438

____________ may determine whether to grant permissive indemnity?

Back 438

A majority of independent directors; a committee of at least two independent directors; vote by a majority of shares held by independent shareholders; a special lawyer's opinion could recommend it

Front 439

What are the requirements for bringing a shareholder derivative suit?

Back 439

Contemporaneous stock ownership; must generally make demand on directors that they cause their own corporation to bring suit (before suit can be filed, demand must be made and rejected, or at least 90 days must have passed since demand was made)

Front 440

SH w/ rt to vote are called…

Back 440

SH of record

Front 441

What are the ingredients for a valid proxy?

Back 441

Writing (fax/e-mail OK), signed by record owner, directed to secretary of corporation, authorizing another to vote the shares, valid for 11 months

Front 442

Can S revoke a proxy that says it is irrevocable?

Back 442

Yes - merely labeling a proxy irrevocable is not enough to make it so; it must be coupled with an interest

Front 443

A special meeting can be called by ______________; such a meeting can consider ______. Notice must _____________.

Back 443

board, president, or holders of at least 10 of voting shares. … special proposals or fundamental corporation changes … describe the special purpose for the meeting (which is the only subject that can be addressed there)

Front 444

How is vote counted at a shareholders meeting?

Back 444

Majority of votes cast (abstentions are not counted)

Front 445

Voting trust is a

Back 445

formal delegation of voting power to a voting trustee for 10 years (or different term if states otherwise) - must be in writing, typically filed with corporation, transfers shares to voting trustee; shareholders retain other rights except for voting; shareholders get trust certificates

Front 446

Shareholder voting agreement is

Back 446

an agreement to vote in writing as required by the agreement itself.

Front 447

Shareholders have _________ right to receive dividends. Directors have ______________ to declare dividends, but may never do so _________________.

Back 447

no right… discretion … if the corporation is insolvent or would be rendered insolvent by the dividend

Front 448

If board members approve an unlawful dividend, board members are __________, but have _____________.

Back 448

liable personally… a defense of good faith reliance on financial officer's representations regarding solvency.

Front 449

Priority of distributions

Back 449

Preferred shares - first (amount of preference); common shares - last and equally; preferred that are participating shares are paid twice; preferred that are cumulative have right to receive unpaid and current years dividends

Front 450

Corp. declares $400K in dividends. Shareholders include 100K shares of common stock and 20K shares of $2 preferred that are cumulative. What result?

Back 450

Preferred dividends of $160K ($2/share * 4 years); common shareholders share $240K equally ($2.40/share).

Front 451

Shareholder agreements to eliminate corporate formalities are valid if _____________.

Back 451

Unanimous shareholder election in writing, plus some reasonable share transfer restriction.

Front 452

What is the effect of a valid shareholder agreement to eliminate corporate formalities?

Back 452

No piercing even if failed to observe formalities, and possible subchapter S Corp. status, meaning deemed partnership for tax purposes, if < 100 shareholders and only one class of stock

Front 453

Requirements for a PC

Back 453

Organizers file articles with name designeated "Professional Corporation" or "PC" ; shareholders must belicensed professionals; corporation must practice only one designated profession; professionals are liable personally for their own malpractice; but, professionals are not liable personally for each other's malpractice or the obligations of the corporation itself

Front 454

What is a shareholder's liability for a corporation's obligations?

Back 454

None, except for piercing corporate veil and that controlling shareholders owe fiduciary duty to minority shareholders and are liable for selling corporation to party who LOOTS corporation, unless reasonable measures taken to investigate buyer's reputation/plans for the corporation

Front 455

Process to effectuate any fundamental change:

Back 455

Resolution by board at valid meeting; notice of special meeting; a majority of all shares entitled to vote (not just votes cast) AND a majority of each voting group that is adversely affected by the change (except short-form merger); possibility of dissenting shareholder right of appraisal; file notice with the state (e.g., articles of merger)

Front 456

Short form merger?? (where no SH approval required for this type of fundamental change)…

Back 456

no shareholder approval required for "short-form" merger, where parent corp. that owns 90% or more of the stock in its subsidiary merges with the subsidiary

Front 457

Possibility of dissenting shareholder right of appraisal

Back 457

Shareholder who does not vote in favor of a fundamental change has right to force the corporation to buy her shares at fair value (dissenter may abstain…) - before vote, file written notice of objection/intent to demand payment; do not vote in favor of the proposed change; make prompt written demand to be bought out

Front 458

10b5 Insider trading liability for tippers and tippees

Back 458

insider trading - misappropriator - steals/converts material nonublic information and uses it to purchase or sell securities, or tipper - tips inside information for personal benefit to another who trades on it, or tippee - receives inside information and trades on it with knowledge that the info was disclosed in breach of tipper's fiduciary duty

Front 459

16b requires no

Back 459

fraud—just talks about short swing profits

Front 460

Sarabanes-Oxley Act of 2002 - applies to

Back 460

reporting corporations

Front 461

Sarabanes-Oxley Act of 2002 - requires that ____________ must ______ that based on ______ reports filed with the SEC __________and _________.

Back 461

CEO and CFO … certify … knowledge … do not contain material misrepresentations/ommissions … fairly presented the financial position of the company

Front 462

In Sarbanes-Oxley actions, a corporation wants to prove…

Back 462

no knowingly false filings + no benefits during falsehoods or blackout periods

Front 463

Voting trust is a

Back 463

formal delegation of voting power to a voting trustee for 10 years (or different term if states otherwise) - must be in writing, typically filed with corporation, transfers shares to voting trustee; shareholders retain other rights except for voting; shareholders get trust certificates

Front 464

Tort - Monetary compensatory damages

Back 464

Purpose: compensate P to return to pre-tort condition. Causation, foreseeability, reasonable certainty (economic damages only - cannot be speculative - historical record helps; future: all or nothing rule - more likely than not; certainty rule doesn't apply to non-economic losses), unavoidable (mitigation); judgment single-lump sum, discounted to present value, inflation not taken into account

Front 465

What to remember about dmgs:

Back 465

Can’t get both restitution and compensatory damages (at least in tort)

Front 466

Tort – Replevin

Back 466

Recovery of specific personal property - nearly always coupled with damages. P must have right to possession, must be a wrongful withholding by D. Prelim hearing; P must post bond; D can defeat w/ a redelivery bond. Sheriff ejects

Front 467

Tort – Ejectment

Back 467

Remove trespassing D from land – recover specific real property. P must have a right to possession, must be a wrongful withholding by D. Coupled w/damages for loss of use. Sheriff ejects.