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215 Cards in this Set
- Front
- Back
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Civil Procedure
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Personal jurisdiction
Subject matter jurisdiction Venue |
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Personal jurisdiction - basics
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state's long arm statute
due process requirements of the Constitution |
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PJ - due process requirements of Constitution
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My Parents Frequently Forgot to Read Children Stories
Minimum contacts Purposeful availment Foreseeability Fairness Relatedness Convenience State's interest |
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Subject matter jurisdiction
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diversity
federal question |
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SMJ - Diversity jurisdiction
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diversity of citizenship of all parties
amount in controversy exceeds $75,000 |
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Citizenship
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Individuals: physical presence, intent to make permanent home
Corporations: places of incorporation and principal place of business |
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Supplemental jurisdiction - when can apply
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Pendant: brought by plaintiff in federal question only
Ancillary: brought by anyone but plaintiff in diversity or federal question |
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Erie doctrine balancing test
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1) analyze if law is outcome determinative
2) balance federal and state interests 3) avoid forum shopping |
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Nonwaivable defenses
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Lack of subject matter jurisdiction
Failure to state a clam Failure to join an indispensable party |
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Compulsory joinder / indispensable party
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1) complete relief can't be given to existing parties w/o party
2) Party's interest may be harmed if not joined 3) Absence would expose parties to substantial risk of double or inconsistent obligations |
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Supplemental jurisdiction - test
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common nucleus of operative fact
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Compulsory joinder - test
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arises from same transaction or occurrence as plaintiff's claim
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Relation back amendments
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1) concerns same transaction or occurrence as original
2) new party knew of action within 120 days of filing and won't be prejudiced with the action 3) new party knew "but for" the mistake, it would've been named originally |
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Class actions
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CTAN
Commonality - q's of law/fact common Typicality - claim of rep typical Adequacy - rep will adequately protect interests Numerosity - class is too numerous joinder is impractical |
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Claim preclusion / res judicata
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1) same parties
2) valid final judgment on merits 3) same claim (note: CA "primary rights" doctrine more liberal) |
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Issue preclusion / collateral estoppel
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PIANO
1) Party in prior lawsuit 2) Identical issue 3) actually litigated and determined (valid final judgment on merits) 4) Necessarily determined (issue essential) 5) Opportunity to litigate (full and fair) |
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Evidence
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Form
Purpose Presentation Hearsay Privileges |
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Purpose - logical relevance
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FRE: any tendency for a fact of consequence to a determination of an action more or less probable than without the evidence
CA: requires the fact of consequence to be in dispute to be relevant |
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Purpose - legal relevance
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Probative value outweighs its prejudicial effect
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Specific acts of misconduct
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MIMIC
Motive Intent Mistake, absence of Identity Common plan or scheme |
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Ways to Impeach a Witness
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PBPBS
Prior inconsistent statement Bias, interest, motive Prior conviction Bad reputation/opinion for truth Specific acts of lying |
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Authentication of document
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admission
eyewitness testimony handwriting proof |
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Best evidence rule
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Requires party seeking to prove content of a writing to produce either the original or account for absence
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Witness competency
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1) must have personal knowledge (perception, memory, communication)
2) witness must take oath - requires the person to know that he has the legal duty to tell the truth |
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Lay opinion testimony
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1) rationally based on perception
2) helpful to trier of fact 3) not based on scientific, technical, or specialized knowledge (Not CA) |
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Expert opinion testimony
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1) subject appropriate for an expert
2) qualified as an expert 3) reasonable probability for opinion 4) proper factual basis |
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Judicial notice
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1) matters of common knowledge in community, or
2) capable of verification of easily accessible sources of unquestionable accuracy |
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Hearsay
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out of court statement offered for the truth of the matter asserted in the statement
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Nonhearsay (CA: exceptions to hearsay)
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PASS MEN
Prior identification Admission by party opponent Statement (prior inconsistent under oath) Statement (prior consistent to rebut) Mind (state of) Effect on listener (notice, knowledge) Nonassertive conduct |
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Unavailable declarant
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PRIMA
Privilege Refuses to testify (not CA) Ill or dead Memory (not CA) Absent |
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Hearsay exceptions (all)
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BAD SPLITS PEPPI
Business records Admission by party opponent Dying declaration Spontaneous statements Past recollection recorded Learned treatise Interest, declaration against Testimony, former State of mind or condition Public records Equivalency (catch-all) Prior inconsistent statement Prior consistent statement Identification |
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Vicarious admission
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1) statement by party's agent/employee
2) concerning matter within scope of employment 3) made during existence of relationship |
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Former testimony
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1) testimony given at earlier proceeding under oath
2) by a party 3) against whom testimony is offered 4) who had meaningful opportunity and similar motive to cross examine about same subject |
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Statement against interest
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1) statement against pecuniary, proprietary, or penal interest when made
2) as well as collateral facts 3) no motive to misrepresent when statement made |
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Dying declaration
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1) statement made while believing death was imminent
2) concerning cause or circumstances of impending death note: homicide or civil case |
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Statement of personal or family history
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1) statement concerning births/deaths
2) where declarant is member of family or intimately associted 3) statements are based on declarant's personal knowledge of facts |
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Present state of mind
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1) statement of declarant's then existing state of mind, emotion, sensation, or physical condition
2) usually offered to establish person's intent or as circumstantial evidence that event was carried out |
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Excited utterance
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1) statement relating to a startling event
2) made while declarant was still under stress of excitement caused by the event |
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Present sense impression
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1) statement describing event
2) made while declarant was perceiving it or right after |
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Present bodily condition
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1) Spontaneous statement
2) of present bodily condition 3) even though not made to a doctor |
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Post bodily condition
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1) statement made to medical personnel
2) to assist in diagnosing or treating condition |
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Business records
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KRAP
Keep Regular course of business At or near the time Personal knowledge 1) Writings made in regular course of business 2) consisting of matters within personal knowledge 3) of one who has a business duty to transmit 4) made at or near time of event 5) property authenticated |
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Public records
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1) records setting forth activities of the office/agency
2) made by or within scope of duty of public employee 3) made at or near time of event 4a) recordings of matters pursuant to duty imposed by law OR 4b) records of factual findings resulting from an investigation authorized by law (civil cases or against government in criminal) |
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Learned treatise
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1) relied upon an expert
2) established as reliable authority by witness or any expert or by judicial notice |
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Attorney-client privilege
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1) confidential communications between attorney and client
2) made duing professional legal consultation |
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Physician-patient privilege
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1) confidential communications between patient and physician
2) in a professional relationship 3) for the purpose of treatment |
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Other privileges
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Psychotherapist/Social worker-client
Parent-Child Accountant-client Spousal Confidential marital communications |
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Professional Responsibility
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Duty to client
Duties owed to others |
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Duty to client
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Southern California Clients Love Fabulous Counsel Donning Rolex Watches
(well, maybe before the bubble burst) Sensible and reasonable (consensual sex) Confidentiality Compentence Loyalty Fiduciary Communicate Diligence Representation Withdrawal |
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Business transactions
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1) terms are fair
2) fully disclosed in understandable writing 3) client has opportunity to consult outside attorney 4) client provides written consent |
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Non-contingent fee agreements
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1) how fee calculated
2) what services covered 3) lawyer and client duties CA: 4) must be in writing (unless under $1,000, corporate client, routine services for regular client, emergency, impractical) |
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Contingent fee agreements
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1) written and signed
2) include attorney percentage 3) what expenses deducted from recovery 4) whether percentage is taken before or after expenses deducted CA: 5) how work not covered by contingency fee be paid 6) statement that fees are negotiable |
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Fee splitting
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1) written disclosure and consent
2) total amount not too high 4) division must be proportional to work done by each CA: fee not unconscionable and increased due to split |
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Mandatory withdrawal
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1) violate law or ethical rule
2) using services to commit a crime or fraud |
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Permissive withdrawal
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FAIR
Financially burdens you Acts illegally Insists on pursuing repugnant or imprudent objective Refuses to fulfill obligation after warning of withdrawal |
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Duties owed to others
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Courts Feel Differently
Candor to public / court`` Fairness to adversary / others Dignity to profession |
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Corporations
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Organization
Directors or officers Shareholders Fundamental corporate changes Securities considerations |
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Defacto corporation
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1) relevant incorporation statute
2) good faith attempt to comply 3) some exercise of corporate privileges |
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Corporation by estoppel
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1) treated business as corporation
2) dealt directly with corporation, or 3) corporation can't avoid obligation (justice) |
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Duty of directors
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Duty of care
Duty of loyalty |
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Duty of care
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Do what a prudent person would do with regard to her own business
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Duty of loyalty
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Act in good faith and with reasonable belief that what she does is in the corporation's best interests
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Interested director transaction
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1) fair when entered
2) disclosed/known and approved by either majority disinterested shares or directors |
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Piercing corporate veil
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Generally: shareholder not liable
1) they have abused privilege of incorporating 2) fairness requires it |
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Derivative suit
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1) stock ownership
2) written demand 3) plead w/ particularity 4) adequately represent corp's interests |
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Rule 10b-5
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1) connection with purchase/sale of security
2) interstate commerce instrumentality 3) materiality 4) reliance 5) scienter 6) damages |
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Section 16b
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1) director / officer / shareholder of 10% or more
2) purchase and/or sell within a 6 month period 3) corporation listed on national exchange and have at least 500 shareholders and $10 million in assets |
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Contracts
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Contract Formation
Contract Performance Remedies Requires mutual assent by the parties supported by consideration |
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Offer
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TIC
1) an expression of Intent to enter a present contract demonstrated by a promise, undertaking or commitment 2) with definite and certain Terms, and 3) Communicated with the offeree. |
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Termination of offer
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ID (squared)
Insanity Illegality Death Destruction of subject matter Lapse Revocation Rejection Counteroffer |
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Acceptance
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1) offeree with power of acceptance
2) manifests assent to terms of offer 3) in a manner prescribed in the offer 4) communication of acceptance Note: mailbox rule |
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Defenses to Formation
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CAMMPS DUL
Consideration, lack of Capacity, lack of Ambiguity in words Misrepresentation Mistake Public policy Statute of Frauds Duress Unconscionability not Legal |
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Mistake
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1) both parties mistaken
2) about a basic assumption of fact 3) that materially affects the agreement |
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Statute of Frauds
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MY LEGS
Marriage Year, within 1 Land Executor Goods of $500 or more Surety |
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Parol evidence rule
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1) evidence of prior, contemporaneous agreements
2) that contradict/modify contract terms 3) are inadmissible if written contract intended as integrated |
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Valid excuse for breach?
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Material or minor breach
Anticipatory repudiation Later contract: Accord and satisfaction Modification Novation Impossibility/Impracticability/Frustration of Purpose |
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Remedies
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Legal remedies
Restitutionary remedies Equitable remedies |
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Legal remedies
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Compensatory (expectation, consequential, incidental)
Nominal Punitive Liquidated |
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Compensatory
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1) causation
2) foreseeability 3) certainty 4) unavoidability |
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Restitutionary remedies
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Restitutionary damages
Replevin Ejectment Constructive trust Equitable lien |
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Equitable remedies
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Specific Performance
Recission Reformation |
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Specific Performance
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Cha Cha Is My Favorite Dance
Contract is valid Contract conditions met by plaintiff Inadequate legal remedy Mutuality of remedy Feasible to do Defenses |
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Torts
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Intentional
Negligence Strict Liability Products Liability General Considerations Remedies |
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Intentional Torts
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Battery
Assault False imprisonment IIED Trespass to Land Trespass to Chattel Conversion |
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Battery
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1) harmful or offensive contract
2) to the plaintiff's person 3) intent 4) causation |
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Assault
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1) an act by defendant
2) creating a reasonable apprehension in plaintiff 3) of immediate harmful or offensive contact 4) to plaintiff's person 5) intent 6) causation |
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False imprisonment
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1) an act or omission on defendant's part
2) that confines or restrains plaintiff 3) to a bounded area 4) causation 5) damages |
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Trespass to Land
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1) physical invasion
2) of plaintiff's real property 3) intent 4) causation |
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Trespass to Chattel
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1) an act by defendant
2) that interferes with defendant's right of possession in chattel 3) intent 4) causation 5) damages |
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Conversion
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Trespass to Chattel - more serious
1) an act by defenant 2) that interferes with plaintiff's right of possession in a chattel 3) interference is so serious it warrants requiring defendant to pay chattel's full value 4) intent 5) causation |
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Defenses to Intentional Torts
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Consent
Defense (self, others, property) Necessity |
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Defamation (basic)
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1) defammatory language
2) of or concerning the plaintiff 3) publication by defendant to third person 4) damage to plaintiff's reputation |
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Defamation (public official/concern)
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5) falsity of statement
6) fault on part of defendant (malice: knowledge or reckless disregard) |
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Privacy
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Misappropriation
Intrusion False light Disclosure of private facts |
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Misappropriation
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1) unauthorized use
2) of plaintiff's picture or name 3) for commercial advantage |
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Intrusion
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1) an act by defendant
2) objectionable to reasonable person 3) of prying or intruding into plaintiff's privacy |
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False Light
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1) an act by defendant
2) objectionable to reasonable person 3) of widespread dissemination of major misrepresentation about plaintiff. |
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Negligence
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Duty
Breach of duty Causation Damages |
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Duty of care
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Act like a reasonably prudent person would act under the circumstances
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Duty to anticipated trespassers
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1) known man-made hidden death traps
2) duty to warn and make safe if highly dangerous, artificial, not obvious |
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Duty to Licensees
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1) protect against known hidden traps
2) warn if dangerous, not obvious |
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Duty to Invitees
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1) protect reasonably knowable hidden traps
2) warn dangerous and not obvious 3) inspect |
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Duty to Child Trespassers (attractive nuisance)
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1) artificially dangerous condition
2) children likely to trespass 3) children will likely fail to appreciate the danger or realize the risks due to their youth, age, or immaturity 4) utility of maintaining the condition is slight compared to risks |
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Negligence - Cause
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Actual ("but for")
Proximate (foreseeable - Andrews: anyone, Cardozo: zone of danger) |
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Negligence - Defenses
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Contributory
Comparative Assumption of risk |
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Strict Liability - ultra hazardous or abnormally dangerous activities
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1) cannot be made safe
2) poses severe risk of harm 3) uncommon in area |
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Products Liability - basic case
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1) defendant must be a merchant
2) product must be defective 3) defect existed when left defendant's control 4) plaintiff was foreseeable user or making foreseeable use 5) damages |
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Products Liability - theories
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1) battery
2) strict products liability (commercial supplier) 3) negligence 4) breach of implied warranties 5) misrepresentation |
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Implied warranties
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Merchantability (good is generally fit for ordinary purpose for which such goods are used)
Fitness for a particular purpose (good for particular purpose for which goods are required) |
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Other considerations
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Vicarious liability (respondeat superior, independent contractor)
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Tort Remedies
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Compensatory remedies
Restitutionary remedies Equitable remedies |
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Tort - legal remedies
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Compensatory damages
Nominal damages Punitive damages |
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Tort - restitutionary remedies
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Restitutionary damages
Replevin Ejectment Constructive trust Equitable lien |
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Tort - equitable remedies
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Injunctive relief
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Injunctive relief
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I Put Five Bucks Down
Inadequate legal remedy Property right/Protectable interest Feasibility of enforcement Balancing of Hardships Defenses |
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Property
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Landlord-Tenant
Land Rights Conveyancing |
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Waste
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Affirmative
Permissive Ameliorative |
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Affirmative waste
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Prohibited unless PURGE
Prior Use Reasonable repairs Grant Exploitation |
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Landlord duties
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Duty to deliver possession
Implied covenant of quiet enjoyment Implied warranty of habitability |
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Constructive eviction
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SING
Substantial Interference Notice Good-bye (abandon) |
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Tenant remedies
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MR3
Move out and terminate lease Repair and deduct Reduce rent by FMV w/ defects Remain in possession, pay rent, sue for damages |
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Tenant duties
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Duty to repair
Duty to pay rent Duty to not use premises for illegal purpose |
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Joint tenancy - creation
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T-TIP
Time Title Interest Posession |
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Joint tenancy - severance
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SPaM
Severance and sale Partition, and Mortgage |
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Tenant rights and duties
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PP RRR IWAC
Possession Partition Repairs Rent from 3rd parties Rent from co-tenant in exclusive possession Improvements Waste Adverse possession Carrying costs (taxes, mortgage) |
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Adverse possession
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COAH
Continuous Open and notorious Actual and exclusive Hostile |
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Rights in another's land
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Easement
License Covenant Equitable servitude |
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Easement - creation
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PING
Prescription (adverse possession) Implication (quasi-easement) Necessity Grant |
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Easement - termination
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END CRAMP
Estoppel Necessity Desctruction Condemnation Release Abandonment Merger Prescription |
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Negative easements
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LASS
Light Air Support Stream of water |
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Covenant - burden to run
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WITHVN
Writing Intent Touches and concern land Horizontal privity Vertical Privity Notice |
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Covenant - benefit to run
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WITV
Writing Intent Touches and concern land Vertical privity |
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Termination of covenant and equitable servitude
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WMC
Written release Merger Condemnation |
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Notice
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AIR
Actual Inquiry Record |
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Equitable servitude - force burden to land
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WITN
Writing Intent Touches and concern land Notice |
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Equitable servitude - force benefit to land
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WIT
Writing Intent Touches and concern land |
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Covenants of title (land sale)
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RESt AGE
Covenant of Right to covey Covenant against Encumbrances Covenant of Seisin Covenant of further Assurances Covenant of Guarantee warranty Covenant of quiet Enjoyment |
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Criminal Procedure
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4th Amendment
5th Amendment 6th Amendment 14th Amendment |
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Exclusionary rule
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Prohibits introduction of evidence in violation of a defendant's 4th, 5th, and 6th amendment rights.
Under the rule, all illegally obtained evidence is inadmissible at trial as well as all "fruit from the poisonous tree" |
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Exclusionary Rule - exceptions
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III
1) independent of original illegality 2) inevitable discovery 3) intervening act of free will by defendant |
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Law of Search and Seizure - analysis
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1) government conduct
2) reasonable expectation of privacy 3) pursuant to valid warrant exception |
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Warrant - requirements
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MAD
1) issued by neutral and detached Magistrate 2) based on probable cause stated in Affidavit 3) Describe place to be searched and items seized |
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Warrant - defective grounds
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false statement material to probable cause
magistrate not neutral warrant not executed by police or with delay defective on its face |
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Warrant - exceptions
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PLACES
Plain view Lawful arrest, incident to Automobile Consent Evanescent exception Stop and frisk |
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Fifth Amendment
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privilege against self-incrimination
Miranda warning |
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Sixth Amendment
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right to counsel
ineffective assistance of counsel right to a speedy trial right to a jury trial |
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Fourteenth Amendment
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- confession must be voluntary (totality of circumstances)
- pre-trial ID cannot be unnecessarily suggestive |
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Problem of confessions
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General: exclusionary rule apply?
4th Amendment: probable cause w/ arrest? 5th Amendment: privilege against self-incrimination 6th Amendment: waiver of right to counsel? 14th Amendment: voluntary by totality of circumstances? |
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Contract terms - material
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QTPPS
Quantity Time Parties Price Subject matter |
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Deeds - action
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LEAD
Lawfully Executed And Delivered |
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Deeds - elements
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PIG ID
Parties Interest conveyed Grantors signature Intent to transfer Description of land |
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Criminal Law
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actus reus
mens rea concurrence causation |
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Accomplice Liability
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1) aid, encourage, counsel principal
2) with intent to encourage crime |
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Solicitation
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1) asking someone to commit felony
2) intent the solicited person commit the crime |
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Attempt
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1) specific intent to commit the crime
2) substantial step in direction |
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Conspiracy
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1) agreement between two persons
2) intent to enter into the agreement 3) intent at least two to achieve objective of agreement |
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Murder
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Unlawful killing of another with malice aforethought
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Malice aforethought - murder
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1) intent to kill
2) intent to inflict great bodily injury 3) reckless indifference to an unjustifiably high risk to human life 4) intent to commit a felony |
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Degrees of killings
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First murder (premeditation)
Second murder (no premeditation) Felony murder Voluntary manslaughter (provocation) Involuntary manslaughter |
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Assault
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1) attempted battery
2) intentional creation other than by words of a reasonable apprehension in the mind of the victim of imminent bodily harm |
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Battery
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1) unlawful application of force
2) to the person of another 3) resulting in bodily injury or offensive touching |
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Rape
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1) unlawful carnal knowledge of a woman by a man
2) without her consent |
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Kidnapping
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1) unlawful confinement of a person
2) that involves either some movement of victim or concealment in secret place |
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False Imprisonment
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1) unlawful confinement of person
2) without valid consent |
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Larceny
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1) a taking and carrying away
2) of tangible personal property of another 3) by trespass 4) with intent to permanently deprive |
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Embezzlement
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1) fraudulent conversion
2) of personal property of another 3) by a person in lawful possession 4) with intent to defraud |
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False pretenses
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1) obtaining title
2) to personal property of another 3) by an intentional false statement of past or existing fact 4) with intent to defraud |
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Receiving stolen property
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1) receiving possession or control
2) of stolen personal property 3) known to have been obtained by crime of another 4) with intent to permanently deprive the owner |
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Robbery
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(larceny + assault)
1) a taking of personal property of another 2) from the other person or presence 3) by force or threat of imminent death/physical harm to victim 4) with intent to permanently deprive |
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Extortion
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1) obtaining title
2) by threats of future harm |
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Burglary
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1) breaking and entering
2) of a dwelling of another at nightime 3) with intent to commit a felony inside |
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Arson
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1) malicious (intent or reckless disregard of risk)
2) burning of the dwelling of another |
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Specific Intent Crimes
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BAM ACTS
Burglary Assault Murder Attempt Conspiracy Theft (larceny, robbery, embezzlement, false pretenses, extortion) Solicitation |
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General Intent Crimes
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MBRIK
Murder (2nd degree) Battery Rape Imprisonment (false) Kidnapping |
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Defenses
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DIE IF MIS PIN
Duress Infancy Entrapment Insanity Fleeing felon danger Mistake Intoxication Self-defense Prevention of crime Impossibility Necessity (Infancy, Insanity, Intoxication, Impossibility) |
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Entrapment
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1) criminal design originated with law enforcement officer
2) defendant not predisposed to commit the crime prior to contact by the government |
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Insanity
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M'Naughten
Irresistible impulse MPC Durham |
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M'Naughten
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1) not know his act would be wrong
2) not understand the nature and quality of his actions |
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Irresistible impulse
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1) unable to control his actions or conform conduct to law
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MPC
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1) could not appreciate the criminality of his conduct, or
2) conform conduct to requirements of the law |
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Durham
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crime wouldn't have been committed but for the disease
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Constitutional Law - analysis
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Who is the Actor?
Congress (have authority to act? violated limit on its power?) President (exceeded scope of powers?) Federal courts (authority to hear?) State/Local government (violated limit on its power?) Private actor (state action? violate Constitution?) |
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Congress Power
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C-WEST
Commerce War Eminent domain Spending Taxing |
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Congress' Commerce Power
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CIA
Channels of interstate commerce Instrumentalities of interstate commerce Activities that have a substantial effect on interstate commerce |
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Congress' Police Power
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MILD
Military Indian reservations Federal land and territories District of Columbia |
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Substantive Due Process - basis
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Federal = 5th Amend
State/Local = 14th Amendment |
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Equal Protection - scrutiny
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Strict Scrutiny (necessary to compelling interest)
Intermediate Scrutiny (substantially related to important interest) Rational basis (rationally related to legitimate interest) |
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Freedom of Religion - establishment clause
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SEX
Secular purpose Effect eXcessive entanglement |
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Freedom of Religion - free exercise clause
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GNc
Generally applicable Neutral |
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Speech
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PUPS
Protected Unprotected Prior restraint Symbolic speech |
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Unprotected speech
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OF AID
Obscenity Fighting words Advertising, false Incitement imminent illegality Defamation |
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Preemption
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PUSH
Pervasiveness Uniform federal regulation Similarity between laws Historically left to state |
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Individual rights
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SSTRREPS
State action Speech Taking Religion Retroactive legislation Equal protection Procedural due process Substantive due process |
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Freedom of Speech - attack
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UP and OVer
Unfetter discretion Prior restraint Overbroad Vagueness |
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Obscenity
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1) appeals to prurient interest
2) must depict sex in patently offensive way 3) lack LAPS (literary, artistic, political, scientific value) |
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Content neutral
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1) advance important interest unrelated to speech
2) must not burden speech substantially more than necessary |
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Conduct-based regulation (time, place, manner)
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1) content neutral
2) narrowly tailored 3) leave open alternative channels of communication |
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Executive power - domestic
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Appointment
Removal power Veto power Pardon power Executive privilege Absolute immunity |
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Executive power - foreign
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Commander-in-chief
Broad emergency power Treaty power Executive agreement |
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Federal court - justiciability
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RAMPSE
Ripeness Abstention Mootness Political question Standing Eleventh amendment |
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Trust - elements
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B TRIPS
Beneficiaries Trustee Res (trust property) Intent Purpose Settlor |
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What kind of trust?
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TRISH STRIPS in DC
Testamentary turst Revocable trust Intervivos trust Secret trust Honorary trust Spendthrift trust Totten trust Resulting/constructive trusts life Insurance trust Pour over will Support trust |
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Duties of a trustee
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C LADIES
Care Loyalty Account Delegate (not) Invest Earmark Segregate Others: preserve and keep trust productive fairness to beneficiaries balance return with potential risk safeguard and maintain trust property |
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Wills - element
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FICkle
Formalities Intent Capacity |
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Formalities of will
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Formal:
1) writing 2) signed by testator in presence of two competent witnesses present at time Holographic 1) signature 2) material provisions |
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Defenses
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U MF
Undue Influence Mistake Fraud |
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Undue influence - will
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DO US
Disposition Opportunity Unnatural result Susceptible testator Rebuttable presumption (fiduciary, active participation, undue benefit) Statutory |
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Mistake - will
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C DICES
Content Description Inducement Children Execution Subsequent will or codicil |
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Fraud - will
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PRICE
Prevention Revoke failure Inducement Constructive trust Execution |
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Revocation - will
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ARSe SOAP
Advancement (no will) Restriction (homicide/abuse) Subsequent instrument Satisfaction Operation of law Ademption Physical act |
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Pretermitted issue - when not receive share
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1) on face of will
2) provided for outside of will 3) testator had other kids and estate goes to surviving spouse |
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Community Property - characterization of asset factors
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1) source of the item
2) actions of parties that may have altered the character of the item 3) any statutory presumptions affecting the item |
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Actions taken by spouses to alter character of property?
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Transmutations (after 1985, must be in writing)
Married Woman's Presumption (after 1975 no longer presumed SP) Joint title (death: CP, divorce: SP after 1984) |
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Methods to calculate community property enhancing value of separate property
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Pereira (spouse's Personal skills/labor)
- (Pay interest on value of business at time married) x (# of years married) = SP. Rest is CP Van Camp (Valuable Company's capital investment) - (value of spouse's services at market rate) - (family expenses paid) = CP. rest is SP |
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Education and training - equitable defense
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1) community already substantially benefited (more than 10 years)
2) other spouse received community-funded education, or 3) need for spousal support is reduced as result of education |
