Essay Review Mee

Front 1

TORTS FALSE IMPRISONMENT (FI)

Back 1

To establish a prima facie case for FI, the following elements must be proved: 1) an act or omission to act on the part of the defendant that CONFINES or RESTRAINS the plaintiff to a BOUNDED area; 2) INTENT on the part of the defendant to confine or restrain the plaintiff to a bounded area; and 3) CAUSATION.

Front 2

TORTS LEGAL REMEDIES in Tort

Back 2

Damages: D is ordered to pay money to P (compensatory, nominal, punitive). Damages are based on the harm to the P. REQUIREMENTS: 1) CAUSATION (Actual Cause) 2) FORESEEABILITY (Proximate Cause) 3) CERTAINTY (Damages cannot be too speculative) 4) UNAVOIDABILITY (P must take reasonable steps to mitigate damages).

Front 3

TORTS NEGLIGENCE

Back 3

The elements of a prima facie case for negligence include: 1) a DUTY on the part of the D to CONFORM TO A SPECIFIC STANDARD OF CONDUCT for protection of P against an unreasonable risk of injury; 2) a BREACH of that duty by D; 3) the breach is the ACTUAL AND PROXIMATE CAUSE of P's injury; and 4) DAMAGE.

Front 4

EVIDENCE RELEVANCE

Back 4

Evidence is RELEVANT if it tends to make the existence of any fact or consequence to the outcome of the action more probable than it would be without the evidence. All relevant evidence is admissible if it is offered in an unobjectionable form and manner.

Front 5

TORTS Negligence: DUTY OF CARE

Back 5

A duty of care is owed to all foreseeable plaintiffs. The extent of the duty is determined by the applicable standard of care. Therefore, when confronted with a negligence question, always ask: 1) was the P foreseeable? 2) If so, what is the applicable standard of care?

Front 6

WILLS & TRUSTS What is Undue influence - prima facia case?

Back 6

Testator has a weakness such that he is able to have his free will subjugated. 1) SUSCEPTIBILITY: Any weakness or predisposition 2) OPPORTUNITY: wrongdoer has access to testator 3) ACTIVE PARTICIPATION: or disposition to exert influence 4) UNNATURAL RESULT: i.e. wrongdoer taking devise were that person would ordinarily take nothing. Effect: only that part of the will affected by undue influence is invalid.

Front 7

CRIMES Specific Intent Crimes

Back 7

SOLICITATION: intent to have the person solicited commit the crime. ATTEMPT: Intent to complete the crime. CONSPIRACY: Intent to have the crime completed. 1ST DEGREE MURDER: premeditated intent to kill (defined by statute). ASSAULT: Intent to commit a battery. LARCENY/ROBBERY: Intent to permanently deprive another of his interest in the property taken. BURGLARY: Intent at the time of entry to commit a felony therein. FORGERY: Intent to defraud. FALSE PRETENSES: Intent to defraud. EMBEZZLEMENT: Intent to defraud.

Front 8

CRIMES 4TH AM

Back 8

The 4th Am provides that people should be free in their persons from UNREASONABLE searches and seizures.

Front 9

TORTS Negligence: BREACH OF DUTY

Back 9

Where D's conduct falls short of that level required by the applicable standard of care owed to the P, she has breached her duty. Whether the duty of care is breached in an individual case is a question for the trier of fact. The main problem relates to proof of the breach . P may use one of the following theories: 1. Custom or usage 2. Violation of Statute 3. Res Ipsa Loquitur (RIL)

Front 10

CONTRACTS Applicable Law: UCC v. Common Law

Back 10

UCC applies to sales of goods (moveable, tangible objects) while common law applies to all other types of contracts.

Front 11

REMEDIES Restitutionary Remedies

Back 11

These remedies are based on the theory that the D should not be UNJUSTY ENRICHED. Restitutionary remedies are based on the BENEFIT to the D, and the amount is calculated based on the value of the benefit. TYPES: LEGAL: a) Restitutionary Damages b) Replevin c) Ejectment EQUITABLE: d) Constructive Trusts e) Equitable Liens

Front 12

PROPERTY WASTE

Back 12

Life tenant MAINTAINS the estate--this expresses both the maximum and the minimum that the life tenant can do on the land. Three types of waste: 1. Voluntary waste 2. Permissive waste 3. Ameliorative waste

Front 13

CRIMES SEARCH

Back 13

A search is defined as a governmental intrusion into an area where a person has a REASONABLE and JUSTIFIABLE expectation of privacy.

Front 14

BUSINESS ASSOCIATIONS Liability of Corporations for actions by a Promoter

Back 14

The Corporation becomes liable on a promoter's pre-incorporation K when the corporation ADOPTS the K by: a) EXPRESS board of directors resolution; or b) IMPLIED adoption through knowledge of the K and acceptance of its benefits. The Promoter remains liable on pre-incorporation Ks until there has been a NOVATION (i.e., an agreement between the promoter, the corporation, and the other contracting party that the corporation will replace the promoter under the K).

Front 15

CRIMES ACCOMPLICE LIABILITY: Parties -- Principal

Back 15

A principal is one who, with the requisite mental state, ACTUALLY ENGAGES IN THE ACT OR OMISSION that causes the criminal result.

Front 16

CON LAW What are the 4 Justiciability Requirements (required at all levels)?

Back 16

(1) P must have standing; (2) Case must be ripe for review; (3) Case must not be moot AND (4) It must NOT be a political Q

Front 17

WILLS & TRUSTS What is incorporation by reference?

Back 17

Non-integrated writing given testamentary effect if incorporation by reference met. Requires: 1) Doc or writing 2) In EXISTENCE at execution 3) Clearly IDENTIFIED in the will 4) Testator INTENDED to incorporate the doc. NOTE: If 1-3 are met, 4 can be implied.

Front 18

PROPERTY FUTURE INTERESTS

Back 18

The INTEREST exists now but possession will not take place--if at all--until some time in the future. Future interests retained by GRANTOR: 1. REVERSION 2. POSSIBILITY OF REVERTER 3. RIGHT OF RE-ENTRY Future interests given to GRANTEE: 1. REMAINDER 2. EXECUTORY INTEREST

Front 19

WILLS & TRUSTS What are facts of independent significance?

Back 19

Identity of recipient beneficiary or what gift is intended may be given meaning by facts of significance INDEPENDENT FROM WILL - i.e., to my church. Or to all my employees at time of my death. 1) Must be a fact WOULD HAVE EXISTED even without the will. 2) Can be an event or fact before or after will is drafted Basically allows outside parole evidence to prove what stuff is; facts of independent significance allow us to fill in the blanks to T's will with parol evidence that is trustworthy.

Front 20

CRIMES ACCOMPLICE LIABILITY: Parties -- Accomplice

Back 20

An accomplice is one who, with the intent that the crime be committed, aids, counsels, or encourages the principal before or during the commission of the crime.

Front 21

TORTS NEGLIGENCE PER SE

Back 21

Negligence per se (aka "statutory negligence") is the legal doctrine whereby an act is considered negligent because it violates a statute (or regulation). In order to prove negligence per se, the plaintiff must show that: 1) the defendant violated the statute, 2) the statute is a safety statute, 3) the act caused the kind of harm the statute was designed to prevent, 4) the plaintiff was a member of the statute's protected class. In some jurisdictions, negligence per se creates merely a presumption of negligence.

Front 22

PROFESSIONAL RESPONSIBILITY DUTY OF LOYALTY: Duty to Avoid Conflicts of Interests

Back 22

“An attorney may not represent a client if the representation of the client may be materially limited by the lawyer's responsibilities to another client, or to a third person, or by the lawyer's own interests, unless:" (both must be present) i) the lawyer reasonably believes that the representation will not be adversely affected; and ii) the client consents. • must be informed consent • almost always now, consent must be in writing.

Front 23

CIV PRO In Personam Jxn: Statutory Limitations

Back 23

Each state may prescribe its own statutory bases for personal jxn, but must still satisfy constitutional requirements. Most states grant courts in personam jxn in 4 situations: (i) where the D is PRESENT in the forum state and is personally served with process; (ii) where the D is DOMICILED in the forum state; (iii) where the D CONSENTS to jxn; and (iv) where the D has committed acts bringing him within the forum state's LONG ARM STATUTES.

Front 24

CRIMES ACCOMPLICE LIABILITY: Accessory After the Fact

Back 24

An accessory after the fact is one who receives, relieves, comforts, or assists another, knowing that he has committed a felony, in order to HELP THE FELON ESCAPE ARREST, TRIAL, OR CONVICTION.

Front 25

CRIMES ARREST

Back 25

An arrest occurs when the police take a person into custody against her will for purposes of criminal prosecution or interrogation. An arrest must be based on probable cause (PC).

Front 26

WILLS & TRUSTS What are the requirements of a holographic will? What happens if it is undated?

Back 26

1) Must be signed by testator. Sig can be anywhere in will. 2) MATERIAL PROVISIONS must be in testator's own handwriting. (gifts made and the beneficiaries) NOTES: a) Testamentary can be preprinted. . .i) if there are issues extrinsic evidence as to intent is allowed. b) Series of letters may be will under integration. c) Date not required. . .i) If conflicts - Dated wins unless undated can be established as after . .ii) If both undated, then unresolved inconsistent is thrown out . .iii) If Testator may have been incapacitated during time will was drafted then invalid.

Front 27

TORTS Comparative Negligence

Back 27

A substantial MAJORITY of states now permit a contributory negligent P to recover a percentage of his damages under some type of comparative negligence system. In every case where contributory negligence is shown, the trier of fact weighs P's negligence against that of D and reduces P's damages accordingly.

Front 28

CONTRACTS K Formation In order to form a valid K, the following elements must be present:

Back 28

OFFER ACCEPTANCE CONSIDERATION

Front 29

What is a codicil? What is the major concern regarding one?

Back 29

Testamentary instrument executed with required formalities of the code, which modifies, amends, or revokes a will. A codicil REPUBLISHES A WILL. Important for: 1) Pour over wills; 2) Incorporation by reference: AND 3) Pretermission (for birth, marriage or domestic partnership) NOTE: codicil itself is a testamentary instrument thus pretermission analysis from date of codicil. (Discuss both on Bar)

Front 30

TORTS BATTERY

Back 30

Defendant commits a HARMFUL or OFFENSIVE contact; AND The contact is with the plaintiff’s PERSON. Requires INTENT and CAUSATION.

Front 31

TORTS Respondeat Superior / Vicarious Liability

Back 31

Issue: whether the principal will be vicariously liable for torts committed by agent. Two-part test: Principal will be liable for torts committed by agent if: (1) there must be a principal-agent relationship; and (2) the tort must occur within the scope of that relationship.

Front 32

TORTS ASSAULT

Back 32

D must place the plaintiff in REASONABLE APPREHENSION; That apprehension must be of IMMEDIATE HARMFUL OR OFFENSIVE CONTACT to plaintiff's person. Requires INTENT and CAUSATION.

Front 33

PROFESSIONAL RESPONSIBILITY DUTY OF LOYALTY: Conflict of Interest: Business Deals with Clients (MR 1.8(a))

Back 33

When an atty is both a party to the transaction and representing the other party to the transaction it is always suspect. Only if all of the following requirements are met will it be ok: 1) The terms of the transaction must be FAIR and reasonable; and 2) the terms must be DISCLOSED in writing in a manner the client can reasonably understand; and 3) the client is advised in writing to seek the OPINION of another lawyer, and give him the chance to do so; and 4) the client must CONSENT in writing. Mnemonic: "First Discuss Over Coffee."

Front 34

TORTS Intentional Infliction of Emotional Distress (IIED)

Back 34

∆ must engage in outrageous conduct; AND π must suffer severe emotional distress. Also requires INTENT (or recklessness) and CAUSATION. NOTE: For this intentional tort only, reckless conduct on the part of the ∆ will be adequate. Does not need actual intent.

Front 35

CRIMES SOLICITATION

Back 35

Solicitation consists of inciting, counseling, advising, inducing, urging, or commanding another to commit a felony with the specific INTENT THAT THE PERSON SOLICITED COMMIT THE CRIME.

Front 36

TORTS TRESPASS TO LAND

Back 36

Physical invasion of π’s real property. Requires INTENT and CAUSATION. o ∆ can enter on foot on in a vehicle. o Π need not know that ∆ crossed the boundary line; intent is satisfied simply by the ∆ stepping foot on the land. o Trespass can also be by throwing a tangible object onto the property (includes airspace and soil).

Front 37

PROFESSIONAL RESPONSIBILITY DUTY OF LOYALTY: Conflict of Interest

Back 37

A lawyer must not allow her personal interests, the interests of another client, or the interests of a third person to interfere with her loyalty to the client. RULE: If an interest of you, another client, or a third party MATERIALLY LIMITS OR IS ADVERSE to loyal representation, you have a conflict of interest. ***Flag and discuss ACTUAL and POTENTIAL conflicts.

Front 38

TORTS TRESPASS TO CHATTELS

Back 38

An act by Defendant that INTERFERES with PLAINTIFF'S RIGHT OF POSSESSION in a chattel. Requires INTENT, CAUSATION, and DAMAGES. o ∆ can damage the personal property item (bend, break, scratch, etc.) o Take it away. Owner has an exclusive right of possession, so if you take it away, it constitutes interference. What tort has been committed? o It depends on the degree of interference: if the interference is small, minor, or slight, then it is a TRESPASS TO CHATTELS. o By contrast, the big harm would be CONVERSION. Recovery: FMV of property for CONVERSION; Cost of repair for TRESPASS TO CHATTELS.

Front 39

REMEDIES Permanent Injunction Mnemonic

Back 39

"I'll Put Five Bucks Down" I -- Inadequate legal remedy P -- Property Right / Protectible Interest F -- Feasibility of Enforcement B -- Balancing of Hardships D -- Defenses

Front 40

CIV PRO PERSONAL JXN: Minimum Contacts

Back 40

International Shoe requires that the D have "such minimum contacts" with the forum that the exercise of jxn would be fair and reasonable. Look to 2 factors: purposeful availment and foreseeability. There must be a relevant tie between ∆ and the forum state.

Front 41

TORTS SELF-DEFENSE

Back 41

When a person REASONABLY BELIEVES that she is being (or is about to be) attacked, she may use such force as is reasonably necessary to protect against injury. DEGREE OF FORCE: must be a degree of force REASONABLY necessary to respond to the threat (rule of proportionality). Self-defense is usually not available to the initial aggressor. A reasonable MISTAKE as tot he existence of the danger is allowed.

Front 42

PROPERTY JOINT TENANCY (JT)

Back 42

The 4 UNITIES must be persent at the outset in order to create a JT (T-TIP Test): 1. Unity of TIME. All JT interests must have vested at the same time. 2. Unity of TITLE. The grant to all JTs must be the same instrument (e.g., one deed). 3. Unity of INTEREST. All JTs must take the same kind and the same amount of interest. 4. Unity of POSSESSION. All JTs must have identical rights of possession. General RULE: To create a JT, the language of conveyance must clearly reflect the grantor's INTENT to create a JT. Under the Majority Rule today, certain magic words must be used: --"as joint tenants, with right of survivorship" or "in joint tenancy with right of survivorship." The JT carries a RIGHT OF SURVIVORSHIP. The surviving tenants take automatically on the death of a JT.

Front 43

REMEDIES Remedies for Personal Property

Back 43

DESTROYED PROPERTY: --Compensatory Damages DAMAGED PROPERTY: --Compensatory Damages DISPOSSESSION (most common): --Compensatory Damages --Restitutionary Damages --Replevin --Mandatory Injunction --Constructive trusts/Equitable liens --Self-help (reasonable force to recapture)

Front 44

CRIMES CONSPIRACY

Back 44

1) An AGREEMENT BETWEEN 2 OR MORE persons; 2) An INTENT TO ENTER INTO AN AGREEMENT; and 3) An INTENT TO ACHIEVE THE OBJECTIVE of the agreement. Today, a MAJ of the states require an OVERT ACT in furtherance of the conspiracy, but mere preparation will usually suffice.

Front 45

REMEDIES Remedies for Real Property

Back 45

SIMPLE TRESPASS: --Nominal Damages --Restitutionary Damages --Injunction (avoiding multiplicity of actions DESTRUCTION/DAMAGE TO REALTY --Compensatory Damages --Injunction DISPOSSESSION: --Compensatory Damages --Restitutionary Damages --Ejectment --Constructive trusts/Equitable liens ENCROACHMENT (common): --Compensatory Damages --Injunction **No restitution NUISANCE (common): --Compensatory Damages --Injunction **No restitution

Front 46

CONTRACTS OFFER

Back 46

An offer is a manifestation of an INTENT TO CONTRACT (words or conduct showing commitment). An offer must also have DEFINITE AND CERTAIN TERMS and be COMMUNICATED to the offeree. An offer must create a REASONABLE EXPECTATION in the offeree that the offeror is willing to enter into a K on the basis of the offered terms.

Front 47

TORTS DEFAMATION

Back 47

ELEMENTS: (i) DEFAMATORY LANGUAGE; (ii) "OF OR CONCERNING" the plaintiff; (iii) PUBLICATION thereof by ∆ to a third person; and (iv) DAMAGE to π's reputation.

Front 48

REMEDIES Remedies for Personal Injury Torts

Back 48

COMPENSATORY DAMAGES: a) Economic Losses/Special Damages (certainty rules apply) b) Non-Economic Losses/General Damages (e.g., pain and suffering -- certainty rules do not apply) c) Lump Sum Payment: Discounted to present value. Inflation not taken into account under traditional view. INJUNCTION (only against prospective intentional tortious conduct).

Front 49

PROFESSIONAL RESPONSIBILITY Duty of Competence (MR 1.1; CA 3-110)

Back 49

In representing a client, a lawyer must act competently and with the legal knowledge, skill, thoroughness, and preparation that are reasonably necessary for the representation. Elements: o Legal knowledge and skill (In emergency situations, a lawyer may seek assistance, but the assistance should not exceed what is reasonably necessary to meet the emergency) o Thoroughness and preparation o Maintaining competence – continuing legal education (Be up to date with the laws). A lawyer may accept representation where the requisite level of competence can be achieved by reasonable preparation.

Front 50

REMEDIES Remedies for Fraud

Back 50

1) Damages 2) Constructive Trusts/Equitable Liens **Always consider whether (i) punitive damages should be awarded AND (ii) if it also could be analyzed as a Ks case.

Front 51

BUSINESS ASSOCIATIONS Corporate Formation

Back 51

Corporate formation is "A PAIN": 1) AUTHORIZED SHARES -- the maximum # of shares a corp is authorized to issue. 2) PURPOSE 3) AGENT and address of registered office (registered agent is the corporation's official legal representative). 4) INCORPORATORS (name and address of each) 5) NAME OF CORPORATION -- the name must contain some indicia of corporate stautus.

Front 52

BUSINESS ASSOCIATIONS The Principal-Agent Relationship In Tort

Back 52

The Principal-Agent relationship requires: (A) ASSENT -- an informal agreement between the principal and the agent; (B) BENEFIT -- the agent's conduct must be for the principal's benefit. (C) CONTROL -- Principal must have the right to control the agent by having the power to supervise the manner of the agent's performance.

Front 53

REMEDIES Specific Performance in K

Back 53

6 part checklist: 1) K is valid / certain & definite terms 2) K conditions of P must be satisfied (P must be able to show her K conditions have been fulfilled--already performed, ready and able to perform, or excused from performing). 3) Inadequate legal remedy alternative; 4 reasons: --Damages are speculative --D is insolvent --multiple suits are necessary --the thing bargained for is UNIQUE 4) Mutuality of Remedy 5) Feasibility of Enforcement 6) Defenses

Front 54

PROFESSIONAL RESPONSIBILITY Duty of Diligence (MR 1.3)

Back 54

(Duty to pay attention to your client): You have a duty to diligently, promptly, and ZEALOUSLY pursue your case to completion. Diligence is the timeliness aspect of competence. Lawyers are obligated to be diligent in their client’s behalf and are required to be in persistent pursuit of the client’s matter. Once a lawyer takes on a client’s matter, the lawyer must: (i) act on the client’s behalf with reasonable diligence and promptness; (ii) act with dedication and zeal, taking whatever lawful and ethical steps are available to vindicate the client’s cause; (iii) pursue the matter to completion; and (iv) either terminate the relationship or act with the required diligence if there is any doubt as to whether a lawyer-client relationship exists.

Front 55

TORTS Privacy Tort: INVASION OF PRIVACY

Back 55

Invasion of π’s physical seclusion in a way that would be highly offensive to the average person. • Warning: π has to be in a place where there is a reasonable expectation of privacy in order for the tort to be committed. • EX: Eavesdropping of your conversation while you are at a restaurant – no expectation of privacy.

Front 56

EVIDENCE EXAMINATION OF WITNESS: Improper Questions

Back 56

Misleading Compound Argumentative Conclusionary Assuming Facts Not in Evidence Harassing or embarrassing Calls for a Narrative Answer Calls for Speculation Lack of Coundation Nonresponsive Answer

Front 57

TORTS Privacy Tort: FALSE LIGHT

Back 57

The widespread dissemination of a material falsehood about the plaintiff that would be highly offensive to a reasonable person. • Essentially the tort of “gossip” • To proceed in false light, π must prove falsity. Damages are not limited to economic damages, which is why someone may assert it as a second claim to defamation. If it is a matter of public concern, π must show ∆ acted with actual MALICE. ***PRIVILEGES for defamation apply to false light and disclosure. • Ex: Misrepresenting a π’s political or religious beliefs. • Fault not required; reasonable belief is not a defense.

Front 58

CIV PRO PERSONAL JXN: Purposeful Availment

Back 58

D's contact with the forum must result from her purposeful availment with that forum. Contacts cannot be accidental. D must reach out to the forum in some way, such as to make $$ there or to use the roads there. The court must find that through these contacts the D PURPOSEFULLY AVAILED himself "of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws." ASK: Has the ∆ purposefully availed himself of the benefits of the State; aiming his behavior at the state? • Look to shipping goods, whether the ∆ makes money from the transactions, etc. • An interactive website CAN be purposeful availment.

Front 59

WILLS & TRUSTS What is the rule of Lapse?

Back 59

If beneficiary doesn't survive the testator, the gift lapses and returns the residuary of the estate.

Front 60

TORTS Privacy Tort: DISCLOSURE

Back 60

Widespread dissemination of confidential information about the π that is highly offensive to a reasonable person. EXCEPTIONS: • If it is newsworthy information, the media can publish it. • The duel-life fact pattern: stripping to pay law school tuition hypo. ***PRIVILEGES for defamation apply to false light and disclosure.

Front 61

WILLS & TRUSTS What is CA Anti-lapse statute?

Back 61

Anti-lapse statute applies where devisee is: 1) Kindred of testator or of testators spouse and devisee predeceases testator 2) Leaving issue. NOTE: The anti-lapse statute applies to both wills and revocable trusts. But the devisee CANNOT be the SPOUSE or domestic partner

Front 62

PROPERTY DUTIES OF THE TENANT

Back 62

1. DUTY TO PAY RENT 2. DUTY TO MAINTAIN PREMISES If the lease is silent, the T is still subject to the CL duty not to commit waste. If the lease includes a covenant to repair, an express covenant makes the tenant the absolute insurer of the property. The MAJORITY view is that once the tenant covenants to repair, he is liable for EVERYTHING--including ordinary wear and tear. BUT, if the premises are destroyed without the tenant's fault, the tenant will be under no duty to rebuild the structure. 3. DUTY not to use the premises for ILLEGAL PURPOSES 4. DUTY NOT TO ABANDON THE PREMISES

Front 63

TORTS ECONOMIC TORTS

Back 63

• FRAUD – misrepresentation of a material fact, coupled with scienter (∆ made the statement and knew π would rely on it) with the intent to induce the π to act or refrain from acting, that caused the π to rely on that statement, and that π’s reliance was justifiable; and π must suffer actual loss. • NEGLIGENT MISREPRESENTATION –carelessly misrepresenting a fact in a business relationship where someone relies on your expertise • INDUCING BREACH OF CONTRACT -- Persuading someone to walk away from a binding contractual deal. • MALICIOUS PROSECUTION – instituting a lawsuit without any probable cause, for an improper purpose. • ABUSE OF PROCESS – Using a judicial proceeding or judicial process for an illicit purpose.

Front 64

REMEDIES Specific Performance Mnemonic

Back 64

"Cha Cha Is My Favorite Dance" C -- Contract is Valid C -- Conditions of P satisfied I -- Inadequate legal remedy M -- Mutuality of remedy F -- Feasibility of enforcement D -- Defenses

Front 65

CRIMES ATTEMPT

Back 65

A criminal attempt is an act that, although done with the intention of committing a crime, falls short of completing the crime. Attempt requires: (1) A specific intent to commit the crime; and (2) An overt act in furtherance of that intent.

Front 66

TORTS CONVERSION

Back 66

(i) An act by D that INTERFERES WITH P'S RIGHT OF POSSESSION in a chattel; (ii) The interference is SO SERIOUS that it warrants requiring D to pay the chattel's full value; (iii) INTENT and (iv) CAUSATION. Acts of conversion include wrongful acquisition (theft), wrongful transfer, wrongful detention, and substantially changing, severely damaging, or misusing a chattel. The longer the withholding of the property, the more likely it is to be a conversion. P may recover DAMAGES (FMV at the time of conversion) or POSSESSION (replevin).

Front 67

PROPERTY DUTIES OF THE LANDLORD

Back 67

1. DUTY TO DELIVER POSSESSION OF THE LEASED PREMISES 2. IMPLIED WARRANTY OF HABITABILITY At CL, there was NO DUTY to deliver the leased premises in habitable condition. Today, there exists an implied warranty of habitability, but ONLY FOR RESIDENTIAL PROPERTIES. 3. IMPLIED COVENANT OF QUIET ENJOYMENT

Front 68

BUSINESS ASSOCIATIONS CORPORATE FORMATION: Ultra Vires Acts

Back 68

Activities beyond the scope of a stated business purpose are considered to be "ultra vires." At CL, ultra vires acts were void and unenforceable. But under the RMBCA, ultra vires acts are generally ENFORCEABLE, and the ultra vires nature of an act may be raised in only 3 situations: 1) A SHAREHOLDER may sue the corp to enjoin the proposed ultra vires act; 2) THE CORPORATION may sue an officer or director for damages for approving an ultra vires act; and 3) THE STATE may bring an action to dissolve a corporation for committing an ultra vires act.

Front 69

PROPERTY Tenant's Remedies for Breach of Implied Warranty of Habitability

Back 69

1) Tenant can move out AND end the lease (w/ no further lease obligation). OR 2) Tenant can stay on the property AND sue for damages. 3) A growing number of states also allow the T to make reasonable repairs and deduct this cost from future rent payments ("repair and deduct")

Front 70

PROFESSIONAL RESPONSIBILITY Confidentiality MR 1.6

Back 70

“A lawyer shall not reveal information relating to the representation of a client unless the client gives INFORMED CONSENT, the disclosure is IMPLIEDLY AUTHORIZED in order to carry out the representation or the disclosure is permitted [by an exception]:” Basically, no revealing client information without the client’s consent, unless: • To prevent death or bodily harm • To prevent the client from committing a crime or fraud (But not in CA) • To prevent substantial injury to another’s property (But not in CA) • To secure legal advice about compliance with the rules • To establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, or • To comply with other law or court order

Front 71

REMEDIES Rescission and Reformation Mnemonics

Back 71

RESCISSION: "Good Dog" G -- Grounds for Rescission D -- Defenses REFORMATION: "Very Good Dog" V -- Valid K G -- Grounds for Reformation D -- Defenses

Front 72

PROPERTY Implied Covenant of Quiet Enjoyment

Back 72

Every lease includes the LL's implied promise not to interfere with the tenant's QUIET ENJOYMENT of the leased premises. This implied promise is included in EVERY lease--residential, commercial, or otherwise. The LL may breach this implied promise in 3 ways: 1) TOTAL EVICTION 2) PARTIAL EVICTION 3) CONSTRUCTIVE EVICTION

Front 73

TORTS STRICT LIABILITY: Prima Facie Case

Back 73

For SL, the following elements must be shown: (i) the nature of the defendant's activity imposes an ABSOLUTE DUTY TO MAKE SAFE; (ii) the dangerous aspect of the activity was the ACTUAL and PROXIMATE CAUSE of the plaintiff's injury; and (iii) the plaintiff suffered DAMAGE to person or property.

Front 74

REMEDIES TORT Remedies

Back 74

LEGAL REMEDIES 1. Damages RESTITUTIONARY REMEDIES (Legal Restitutionary Remedies) 2. Restitutionary Damages 3. Replevin 4. Ejectment (Equitable Restitutionary Remedies) 5. Constructive Trusts 6. Equitable Liens EQUITABLE REMEDIES 7. Injunctive Relief

Front 75

TORTS PRODUCTS LIABILITY

Back 75

Products liability refers to the liability of a supplier of a defective product to someone injured by the product. There are 5 theories of liability that P may use: (i) intent; (ii) negligence; (iii) strict liability; (iv) implied warranties or merchantability and fitness for a particular purpose; and (v) representation theories (express warranty and misrepresentation).

Front 76

TORTS The Principal-Agent Relationship: SCOPE

Back 76

The principal is liable for its agent's acts within the SCOPE of agency. FACTORS: 1) Was the conduct "of the kind" the agent was hired to perform? 2) Did the tort occur "on the job"? Frolic vs. Detour 3) Did the agent intend to benefit the principal?

Front 77

TORTS PRODUCTS LIABILITY: Elements

Back 77

To find liability under ANY products liability theory, P must show: (i) a DEFECT; and (ii) existence of the defect WHEN THE PRODUCT LEFT D's CONTROL.

Front 78

REMEDIES CONTRACT Remedies

Back 78

LEGAL REMEDIES 1. Damages RESTITUTIONARY REMEDIES (Legal Restitutionary Remedies) 2. Restitutionary Damages 3. Replevin 4. Ejectment (Equitable Restitutionary Remedies) 5. Constructive Trusts 6. Equitable Liens EQUITABLE REMEDIES 7. Specific Performance* 8. Rescission* 9. Reformation* *Different from Tort remedies

Front 79

CIV PRO PERSONAL JXN: Stream of Commerce

Back 79

Asahi: four justices found that placing an item in the stream of commerce, with the knowledge that it would end up in a particular forum, constituted purposeful availment. Four other justices found that there would also have to be a showing that the D took some additional step to avail itself of the forum.

Front 80

BUSINESS ASSOCIATIONS Liability of Principle for Ks Entered by Agents

Back 80

Issue: whether the principal is liable for Ks entered into by its agent. TEST: Principal is liable for Ks entered into by its agent if the principal AUTHORIZED the agent to enter the K. There are 4 types of authority: 1) ACTUAL EXPRESS Authority 2) ACTUAL IMPLIED Authority 3) APPARENT Authority 4) RATIFICATION

Front 81

BUSINESS ASSOCIATIONS PIERCING THE CORPORATE VEIL

Back 81

As a general rule, shareholder is not liable for the debts of a corporation. Except: the court will pierce the corporate veil to avoid fraud or unfairness. Courts will pierce the corporate veil for: ALTER EGO (failure to observe sufficient corporate formalities); or UNDER-CAPITALIZATION (failure to maintain sufficient funds to cover foreseeable liabilities). Remember: Courts are generally more willing to PCV for a tort victim than for a K claimant.

Front 82

BUSINESS ASSOCIATIONS DUTIES of Agent to Principal

Back 82

In return for reasonable compensation and reimbursement of expenses, agents owe principals: 1) Duty of CARE; 2) Duty to OBEY instructions that are reasonable; and 3) Duty of LOYALTY. The agent may NEVER do any of the following: (i) engage in SELF-DEALING (agent cannot receive a benefit to the detriment of the principal); (ii) USURP the principal's opportunity; or (iii) make SECRET PROFITS at the principal's expense without disclosure.

Front 83

CONTRACTS ACCEPTANCE

Back 83

An acceptance must manifest an intent to contract to the terms of the offer and be communicated to the offeror. The offeree exercises the power given her by the offeror to create a contract.

Front 84

EVIDENCE HEARSAY

Back 84

Hearsay is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." If a statement is hearsay, and no exception is applicable, the evidence must be excluded upon appropriate objection to its admission.

Front 85

CRIMES FOTPT: Basic RULE

Back 85

Basic Rule: In addition to excluding all evidence which has been illegally obtained, any additional evidence acquired either directly or indirectly from the illegal arrest, search, or seizure must also be excluded as tainted "fruit of the poisonous tree." (Wong Sun v. US.)

Front 86

CIV PRO PERSONAL JXN: Fairness

Back 86

International Shoe also requires that the exercise of jxn not offend "traditional notions of fair play and substantial justice." FACTORS: --Relatedness of claim to contact -claim arising from activity in the state -systematic and continuous activity in the State --Convenience --Forum State's Interest (in providing redress for its citizens) --Other factors: (i) the P's interest in obtaining convenient and effective relief; (ii) the interstate judicial system's interest in obtaining the most efficient resolution of controversies; and (iii) the shared interest of the states in furthering fundamental substantive social policies.

Front 87

CRIMES Warrantless Search

Back 87

Warrantless search is presumptively unreasonable under the 4th Am. unless a SW exception may apply. Exceptions: 1) SITA 2) Auto Exception 3) Inventory/Impound Search (Inevitable Discovery) 4) "Pat Search" of Car

Front 88

EVIDENCE Statements that are NON-HEARSAY under the FRE

Back 88

FRE 801(d) provides that certain statements, when relevant, are not hearsay: 1) Prior Statements by a Witness 2) Admissions by Party-Opponent

Front 89

CONTRACTS Acceptance: The Mailbox Rule

Back 89

Acceptance by mail or similar menas creates a K at the MOMENT OF DISPATCH provided that the mail is properly addressed and stamped, UNLESS: (i) The OFFER STIPULATES that acceptance is not effective until received; or (ii) An OPTION K is involved (--> an acceptance under an option K is effective only upon RECEIPT). NOTE: because in most jxns a revocation is effective only upon receipt, under the mailbox rule if the offeree dispatches an acceptance BEFORE HE RECEIVES A REVOCATION sent by the offeror, a K is formed.

Front 90

CON LAW PRIVACY is a FUNDAMENTAL RIGHT - what are the 9 privacy categories that are protected by SDP & the 1 he highlighted as not being protected?

Back 90

(1) RT to marry (2) RT to procreate (3) RT to custody of one's children. (4) RT to keep the family together (housing) (5) RT to control the upbringing of one's children (6) RT to purchase & use contraceptives (7) RT to abortion (undue burden test) (8) RT to engage in private consensual homosexual activity (9) RT to refuse medical treatment BUT NO RT to physician - assisted suicide

Front 91

CONTRACTS CONSIDERATION

Back 91

Consideration is a BARGAINED FOR EXCHANGE whereby there is a DETRIMENT AND BENEFIT flowing from each party to the other. LONG RULE: Two elements are necessary to constitute consideration: (i) there must be a BARGAINED FOR EXCHANGE between the parties; and (ii) that which is bargained for must be considered of LEGAL VALUE or, put differently, it must constitute a benefit to the promisor OR a detriment to the promisee. Detriment is determined by whether an exchange contains legal value.

Front 92

COMMUNITY PROPERTY QUASI-COMMUNITY PROPERTY (QCP)

Back 92

Property that would have been community property if the parties had been CA domiciliaries at the time of acquisition.

Front 93

COMMUNITY PROPERTY QUASI-MARITAL PROPERTY (QMP)

Back 93

Applies to putative spouses. Putative spouses are spouses who think that they are legally married (and actually tried to get legally married) but for whatever reason they actually are not.

Front 94

CRIMES INSANITY: M'Naughten

Back 94

D is entitled to an acquittal if the proof establishes that: a) a DISEASE of the mind b) CAUSED A DEFECT of reason c) such that the defendant LACKED THE ABILITY AT THE TIME of his actions to either: (1) know the WRONGFULNESS of his actions; or (2) understand the NATURE AND QUALITY of his actions.

Front 95

PROPERTY 4 Requirements to Enforce a RESTRICTIVE COVENANT

Back 95

1) INTENT -- The parties must intend that the restriction run with the land. 2) NOTICE -- The person must have either actual, constructive or inquiry notice. 3) TOUCH AND CONCERN -- (RULE) If the performance of the covenant makes that land more valuable or more useful, the covenant touches and concerns the land. NOTE: covenants not to compete DO touch and concern the land. 4) PRIVITY -- Horizontal and Vertical.

Front 96

CONTRACTS DEFENSES to Consideration

Back 96

1. Absence of Mutual Assent 2. Absence of Consideration 3. Public Policy Defenses -- Illegality 4. Lack of Capacity 5. Defenses to Enforcement (i) Statute of Frauds (ii) Unconscionability

Front 97

PROPERTY Determining PRIVITY in a RESTRICTIVE COVENANT

Back 97

BURDEN: Successor-in-Interest is the DEFENDANT--requires both: a) VERTICAL PRIVITY -- refers to those who subsequently obtain the property subject to the covenant. They must take the FULL ESTATE. b) HORIZONTAL PRIVITY -- refers to the original parties to the peromise. They must share some interest in the land independent of the covenant. To establish horizontal privity, there must be a conveyance of the property between the original properties. BENEFIT: Successor-in-Interest is PLAINTIFF: a) VERTICAL PRIVITY -- On the benefit side, the general rule is that the holder of any succeeding possessory estate may enforce the benefit of the promise as a covenant at law. 2) NO horizontal privity is required to enforce the benefit of a restrictive covenant.

Front 98

WILLS & TRUSTS Dependent Relative Revocation (RULE)

Back 98

1) If testator revokes her will, or a portion thereof, 2) in the MISTAKEN belief that a substantially identical will or codicil effectuates her intent, 3) then, by operation of law, 4) the revocation of the first will be deemed conditional, dependent, and relative to the second effectuating testator's intent. 5) If the second does not effectuate testator's intent, the first (by pure legal fiction) was never revoked.

Front 99

CRIMES EXCLUSIONARY RULE

Back 99

The exclusionary rule prohibits the introduction, at criminal trial, of evidence obtained in violation of a D's 4th, 5th, or 6th Amendment rights.

Front 100

PROPERTY EQUITABLE SERVITUDES: 3 Requirements to Obtain an INJUNCTION to Enforce the Burden of the Promise

Back 100

1) INTENT that the restriction be enforceable by successors-in-interest; 2) The restriction must TOUCH and CONCERN the land; 3) NOTICE to the subsequent purchaser (actual, constructive, or inquiry). NO PRIVITY of any kind is required to enforce the promise in equity as an equitable servitude.

Front 101

WILLS & TRUSTS W&T Essay CHECKLIST

Back 101

WILLS: 1. Execution of wills 2. Revocation of wills 3. Components of wills (integration, republication by codicil, incorporation by reference, acts of independent significance) 4. Interpretation of wills 5. Intestate succession 6. Rights of surviving spouse and children (pretermitted) 7. Bars to succession (homicide, elder abuse, no contest clause) TRUSTS: 1. Creation of a valid trust (7 elements) 2. Types of Trusts (discretionary, mandatory, spendthrift, honorary, secret, semi-secret, revocable, totten, charitable) 3. Modification and termination of trusts 4. Trust administration and Trustees Duties

Front 102

COMMUNITY PROPERTY SEPARATE PROPERTY (SP)

Back 102

All property owned by a person before marriage All property acquired by gift, devise, bequest, or descent All property acquired by rent, issues, and profits of SP

Front 103

WILLS & TRUSTS Creation of a Valid Trust (7 elements)

Back 103

1. Settlor/trustor 2. Delivery 3. Trustee 4. Intent 5. Trust Property (Res) 6. Beneficiaries 7. Valid Trust Purpose (cannot violate law or public policy)

Front 104

PROPERTY EQUITABLE SERVITUDES: Requirements to Establish a Mutual Right of Enforcement

Back 104

1. An INTENT to impose a SERVITUDE (a restriction on use) on ALL land in the subdivision; 2. NOTICE (actual, constructive, or inquiry); DEFENSES: 1. Unclean hands 2. Acquiescence 3. Laches 4. Estoppel

Front 105

WILLS & TRUSTS Trustees Duties

Back 105

1) FIDUCIARY DUTY 2) DUTY OF CARE (Trustee must exercise degree of care, skill and caution of a reasonable person in managing her own property) DUTIES RELATING TO CARE OF TRUST PROPERTY: a) duty to collect and protect trust property b) duty to earmark property c) duty not to delegate investment decisions d) duty not to commingle trust funds e) duty to maintain marketability of trust property f) duty to keep trust property productive g) duty to diversify investments h) duty not to speculate i) duty to account do trust beneficiaries. 3) DUTY OF LOYALTY: a) Self-dealing b) Conflict of interest

Front 106

PROFESSIONAL RESPONSIBILITY Candor Toward the Tribunal MR 3.3

Back 106

(a) a lawyer shall not knowingly: (1) Make false statements, or fail to correct them (2) Fail to disclose legal authority (3) Offer evidence that the lawyer knows to be false

Front 107

PROPERTY ADVERSE POSSESSION

Back 107

Six Requirements: H-E-L-U-V-A 1. HOSTILE (X is on the land with no right to be there) 2. EXCLUSIVE (X must be excluding others from possessing the property) 3. LASTING (The possession must last for the statutory period; CL is 20 yrs) 4. UNINTERRUPTED USE (continuous use that an ordinary owner would make) 5. VISIBLE (open + notorious) 6. ACTUAL [POSSESSION] (X must actually possess the land to obtain title. --The true owner DOES NOT have to know what's going on. --The adverse possessor (X) DOES NOT have to think he owns it (GF/bad faith is irrelevant).

Front 108

COMMUNITY PROPERTY CP Presumption

Back 108

Property acquired during marriage is presumptively CP. Think possession vs. acquisition.

Front 109

Directors' Liability: DUTY TO MANAGE

Back 109

Directors have a DUTY TO MANAGE the corporation. Directors may delegate management functions to a committee of one or more directors that recommends action to the board.

Front 110

PROFESSIONAL RESPONSIBILITY Advertising

Back 110

A lawyer is allowed to advertise their services through written, recorded, or electronic communication, subject to limitations: • Lawyer CANNOT make false or misleading communication about the lawyer or lawyer’s services. “False or misleading” = 1) If it contains a material misrepresentation of fact or law, OR 2) Omits a fact necessary to make the statement considered as a whole not materially misleading EVERY written, recorded, or electronic communication MUST include the words “Advertising Material” on the outside envelope (if any), AND at the beginning and ending of any recorded or electronic communication, UNLESS they fit either of the previous exceptions (lawyer, past relationship. Lawyer MAY advertise online IF lawyer is licensed to practice in the state where the ad is initially placed. MUST specify jurisdiction where lawyer can practice.

Front 111

CIV PRO DIVERSITY OF CITIZENSHIP JXN

Back 111

Section 1332: Diversity of Citizenship; Amount in Controversy: (a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between— (1) citizens of different States; (2) citizens of a State and citizens or subjects of a foreign state; (3) citizens of different States and in which citizens or subjects of a foreign state are additional parties; and (4) a foreign state, defined in section 1603 (a) of this title, as plaintiff and citizens of a State or of different States. [aliens are deemed to be a citizen of the state in which such alien is domiciled] (b) [...] (c) For the purposes of this section and section 1441 of this title— (1) a corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business... [and] (2) the legal representative of the estate of a decedent shall be deemed to be a citizen only of the same State as the decedent, and the legal representative of an infant or incompetent shall be deemed to be a citizen only of the same State as the infant or incompetent. (d) [...] (e) The word “States”, as used in this section, includes the Territories, the District of Columbia, and the Commonwealth of Puerto Rico.

Front 112

CRIMES 6th Am RIGHT TO COUNSEL

Back 112

The 6th Am provides that in all criminal prosecutions, the D has a right to the assistance of counsel. It applies at all CRITICAL STAGES of a criminal prosecution after formal proceedings have begun. The right is violated when the police deliberately elicit an incriminating statement from a D without first obtaining a waiver of the D's right to have counsel present. The 6th Am right has been limited to cases where ADVERSARY JUDICIAL PROCEEDINGS have begun (e.g., formal charges have been filed). Thus, the right DOES NOT APPLY TO PRE-CHARGE CUSTODIAL INTERROGATIONS.

Front 113

PROPERTY PRESENT and FUTURE COVENANTS

Back 113

PRESENT: 1. Covenant of Seisin 2. Covenant of Right to Convey 3. Covenant Against Encumbrances FUTURE: 1. Covenant of Quiet Enjoyment 2. Covenant of Warranty 3. Covenant of Further Assurances--The "Mop-Up" Covenant BREACH of a Covenant of Title: Where there is a breach of warranty, plaintiff's damages will be limited to the amount of purchase price received by the warrantor plus any incidental damages.

Front 114

BUSINESS ASSOCIATIONS Directors' Liability: BUSINESS JUDGMENT RULE (BJR)

Back 114

In managing the corporation, the directors are protected from liability by the BJR. The BJR is a presumption that the directors manage the corporation in good faith and int he best interests of the corporation and its shareholders. As such, directors will not be liable for INNOCENT MISTAKES of business judgment.

Front 115

CRIMES ENTRAPMENT

Back 115

Entrapment occurs if the intent to commit the crime originated not with the D, but rather with the creative activities of law enforcement officers. The defense of entrapment consists of 2 elements: 1) the CRIMINAL DESIGN must have ORIGINATED WITH LAW ENFORCEMENT officers; and 2) the D must NOT have been PREDISPOSED to commit the crime prior to the initial contact by the government. If D offers evidence to show these two elements, then the gov't must show predisposition beyond a reasonable doubt.

Front 116

COMMUNITY PROPERTY Basic CP Essay INTRO Paragraph 1

Back 116

"California is a community property state. All property acquired during the course of a marriage is presumed to be community property. All property acquired before marriage or after permanent separation is presumed to be separate property. In addition, any property acquired by gift, bequest, devise or descent is presumed to be separate property."

Front 117

CRIMES BATTERY

Back 117

Battery is an unlawful application of force to the person of another resulting in either bodily injury or an offensive touching. Need not be intentional; force need not be applied directly. Consent is a defense only to simple battery (e.g., medical operation).

Front 118

CRIMES 5TH AM (MIRANDA)

Back 118

The 5th Am provides that no person shall be compelled to be a witness against himself. Interpreted to mean that a person shall not be compelled to give self-incriminating testimony

Front 119

BUSINESS ASSOCIATIONS Directors' Liability: FIDUCIARY DUTY

Back 119

Despite protection presumed from the business judgment rule, directors are FIDUCIARIES who owe duties of CARE and LOYALTY.

Front 120

CRIMES ASSAULT

Back 120

An assault is either: (i) an ATTEMPT TO COMMIT A BATTERY; or (ii) the INTENTIONAL CREATION--other than by mere words--of a REASONABLE APPREHENSION in the mind of the victim of imminent bodily harm.

Front 121

CRIMES MIRANDA: When Required

Back 121

Anyone in police CUSTODY and accused of a crime, no matter how minor a crime, must be given Miranda warnings PRIOR TO INTERROGATION by the police.

Front 122

CON LAW What is the 3 part test for determining whether something qualifies as OBSCENE?

Back 122

MUST meet ALL of these requirements: (1) The material must appeal to the prurient interest (= shameful or morbid interest in sex) (2) Material must be patently offensive under the law prohibiting obscenity (ANY law must delineate which depictions would qualify as patently offensive) (3) Taken as a whole, the material must lack serious redeeming artistic, literary, political or scientific value (= value determined by a NATIONAL standard & NOT a local value)

Front 123

BUSINESS ASSOCIATIONS Directors' Liability: DUTY OF CARE

Back 123

RULE: A director owes the corporation a duty of care. She must act with the care that a PRUDENT person would use with regard to her own business, unless the Articles have limited director liability for a breach of the duty of care. EXAM ANSWER: Directors have a duty to manage. They are protected by the BJR, but they are fiduciaries who have duties of care and loyalty. Directors must act with prudence unless the articles have limited liability or a duty of care.

Front 124

COMMUNITY PROPERTY Basic CP Essay INTRO Paragraph 2

Back 124

"In order to determine the character of any asset, courts will trace back to the source of funds used to acquire the asset. A mere change in form of an asset does not change its characterization. With these basic principles in mind, we can now turn to the specific items of property involved in this instance."

Front 125

CRIMES MURDER

Back 125

Murder is the unlawful killing of another human being with malice aforethought. Malice aforethought may be express or implied.

Front 126

BUSINESS ASSOCIATIONS Directors' Liability: DUTY OF LOYALTY

Back 126

RULE: A director owes the corporation a duty of loyalty. A director may not receive an UNFAIR benefit to the detriment of the corporation or its shareholders, UNLESS there has been material DISCLOSURE and INDEPENDENT RATIFICATION. Types: A. SELF-DEALING B. USURPING CORPORATE OPPORTUNITIES C. RATIFICATION EXAM ANSWER: Directors have a duty to manage. They are protected by the BJR, but they are fiduciaries who have duties of care and loyalty. Directors may not receive an unfair benefit unless there has been disclosure, plus independent ratification.

Front 127

EVIDENCE HEARSAY EXCEPTIONS -- Residual "Catch All" Exception

Back 127

The FRE provides a general catch-all exception of hearsay statements not covered by specific exceptions. There are 3 requirements: 1) "TRUSTWORTHINESS" -- Statement must have "circumstantial guarantees of trustworthiness'" that are equivalent to those of statements admitted under other hearsay exceptions. 2) "NECESSITY" -- The statement must be offered on a MATERIAL FACT, and must be MORE PROBATIVE as to that fact than any other evidence which the proponent can reasonably produce so that the "INTERESTS OF JUSTICE" will be served by its admission. 3) NOTICE TO ADVERSARY -- the proponent must give notice in advance of trial to the adverse party as to the nature of the statement so that the adversary has an opportunity to prepare to meet it.

Front 128

CRIMES MURDER: Malice Aforethought

Back 128

In the absence of facts excusing the homicide or reducing it to VM, malice aforethought exists if the D has any of the following states of mind: (i) Intent to kill (express malice); (ii) Intent to inflict GBI; (iii) Reckless indifference to an unjustifiably high risk to human life ("abandoned and malignant heart"); or (iv) Intent to commit a felony (FMR) In the case of (i), (iii), or (iv), the malice is IMPLIED.

Front 129

COMMUNITY PROPERTY Distribution of CP at DIVORCE

Back 129

"The basic rule at divorce is to divide each community asset equally in kind. Thus, each spouse is given one-half of each community asset."

Front 130

CRIMES VOLUNTARY MANSLAUGHTER (VM)

Back 130

VM is an intentional killing distinguishable from murder by the existence of adequate provocation, i.e., a killing in the heat of passion. ELEMENTS: a) the provocation must have been one that would arouse SUDDEN AND INTENSE PASSION in the mind of an ORDINARY PERSON such as to cause him to lose his self-control; b) the D must have IN FACT BEEN PROVOKED; c) there MUST NOT HAVE BEEN A SUFFICIENT TIME to cool; and d) the defendant IN FACT did not cool off between the provocation and the killing.

Front 131

COMMUNITY PROPERTY Distribution of CP at DEATH

Back 131

If the spouse dies with a will, the spouse is entitled to dispose of all of his or her separate property and one-half of the community property. If the spouse dies withotu a will, the community property is awarded entirely to the surviving spouse. Between 1/3 and all of the decedent's separate property will be awarded to the surviving spouse depending on whether there are issue or parents surviving.

Front 132

COMMUNITY PROPERTY QCP: At DEATH and DIVORCE

Back 132

"At DEATH, the surviving spouse has a 1/2 interest in the QCP titled in the decedent's name. The decedent does not have an interest in the QCP titled in the survivor's name." "At DIVORCE, QCP is treated exactly like CP."

Front 133

CRIMES INVOLUNTARY MANSLAUGHTER (IVM)

Back 133

There are two types of IVM: 1) Criminal Negligence 2) "Unlawful Act" Manslaughter

Front 134

CONTRACTS BREACH

Back 134

When a party fails to perform materially by the terms of the K he is in breach. The nonbreaching party may seek damages.

Front 135

CON LAW What are the boundaries of congressional action under the Commerce Clause after Lopez? (3 rules)

Back 135

1. Congress may regulate the CHANNELS of interstate commerce 2. Congress may regulate the INSTRUMENTALITIES of interstate commerce, and persons or things in interstate commerce; OR 3. Congress may regulate ECONOMIC ACTIVITIES that have a SUBSTANTIAL EFFECT on interstate commerce In area of non-economic activity, a substantial effect cannot be based on cumulative impact – Morrison (VAWA) Wickard v. Filburn – cumulative impact of economic activity, even if it’s for individual use, falls under the Commerce Clause

Front 136

CRIMES FALSE IMPRISONMENT (FI)

Back 136

The CL misdemeanor of FI consisted of: (i) unlawful (ii) confinement of a person (iii) without his valid consent.

Front 137

COMMUNITY PROPERTY Treatment of QCP at DEATH

Back 137

For every asset of QCP, there is an acquiring spouse and a non-acquiring spouse, and QCP is treated like the acquiring spouse's SP during marriage. When one spouse dies, he does not have any rights to the surviving spouse's SP. Thus, when a non-acquiring spouse dies, he has no rights to the acquiring spouse's QCP.

Front 138

PROFESSIONAL RESPONSIBILITY PR Essay Checklist Mnemonic

Back 138

"Clients Love Fierce Counsel: Courts Feel Differently." DUTIES OWED TO CLIENTS: --Confidentiality --Loyalty --Financial Responsibility --Competence --(and other reasonable things) DUTIES TO ENTITIES OTHER THAN YOUR CLIENT: --Candor/Truthfulness --Fairness --Dignity/Decorum --(and other reasonable things)

Front 139

CRIMES KIDNAPPING

Back 139

At CL, the misdemeanor of kidnapping was the forcible abduction or stealing away of a person from his own country and sending him to another. Modern statutes and the MPC extends far beyond this definition. Kidnapping is defined as confinement of a person that involved either: (a) some movement (i.e., asportation) of the victim; or (b) concealment of the victim in a "secret" place.

Front 140

PROFESSIONAL RESPONSIBILITY CONFIDENTIALITY: General Rule

Back 140

You can't reveal anything RELATED TO THE REPRESENTATION of a client without her consent. The rationale is to maximize candor and trust, allowing the adversarial system to work.

Front 141

CIV PRO ERIE DOCTRINE

Back 141

A federal court, in the exercise of its diversity jxn, is required to apply the SUBSTANTIVE LAW OF THE STATE in which it is sitting, including that state's conflict of law rules. However, the federal courts apply FEDERAL PROCEDURAL LAW in diversity cases. First, ask if there is a federal law directive on point (if so, use that). If there is no federal directive on point, ask whether the issue is substantive or procedural. --Substantive --> fed judge must follow state law in a diversity case --Procedural --> fed judge may ignore state law.

Front 142

CONTRACTS Article 2: WARRANTIES

Back 142

Ks for the sale of goods automatically include a warranty of title (in most cases). They may also include certain implied warranties and express warranties. WARRANTY OF TITLE & WARRANTY AGAINST INFRINGEMENT: Any seller of goods warrants that the title transferred is good (free of liens or encumbrances). This arises automatically and need not be mentioned in the K. A merchant seller regularly dealing in goods of that kind automatically warrants that the goods are delivered free of any patent, trademark, copyright, or similar claims. But a buyer who furnishes specifications for the goods to the seller must hold the seller harmless against such claims. IMPLIED WARRANTY OF MERCHANTABILITY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE EXPRESS WARRANTIES

Front 143

CRIMES RAPE

Back 143

Rape is the unlawful carnal knowledge of a woman by a man, not her husband, without her effective consent. Requires only penetration of the female sex organ by the male sex organ. Today, most states have abolished the marriage exception. Must be without the victim's effective consent.

Front 144

CIV PRO FEDERAL QUESTION JXN (Section 1331)

Back 144

The district courts shall have original jxn of all civil actions ARISING UNDER THE CONSTITUTION, LAWS OR TREATIES OF THE UNITED STATES... --fed Q must appear as part of the P's cause of action as set out in a well-pleaded complaint.

Front 145

CIV PRO VENUE -- In General

Back 145

Venue in civil actions in the federal courts is proper in: (i) a judicial district where ANY D RESIDES, if all Ds reside in the same state; (ii) a judicial district in which a substantial par to f the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or (iii) if there is no district anywhere in the US which satisfies (i) or (ii), (a) for actions based SOLELY ON DIVERSITY, a judicial district in which any D is subject to personal jxn at the time the action is commenced; or (b) for actions NOT BASED SOLELY ON DIVERSITY, a judicial district in which any D may be found.

Front 146

CRIMES LARCENY

Back 146

(Basic CL property offense) Larceny consists of: (i) A taking (caption); (ii) and carrying away (asportation); (iii) of tangible personal property; (iv) of another (v) by trespass; (vi) with intent to permanently (or for a reasonable time) deprive the person of his interest in the property. (e.g., intent to borrow not larceny).

Front 147

PROFESSIONAL RESPONSIBILITY Duty of CANDOR to the court and FAIRNESS to your adversary

Back 147

A lawyer is prohibited from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. You must refuse to make a false statement of material fact, or offer evidence you know is false to a tribunal, or fail to correct a false statement of material fact or law that you previously made or presented to the tribunal.

Front 148

CIV PRO CA Long-Arm Statute (§ 410.10)

Back 148

“A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States.” o CA Statutory analysis: Easy to meet, because the statute reaches the constitutional limit.

Front 149

CRIMES EMBEZZLEMENT

Back 149

Embezzlement, variously defined in different jxns, generally requires: (i) the fraudulent; (ii) conversion; (iii) of property; (iv) of another; (v) by a person in lawful possession of that property. Embezzlement did not exist at CL; Modern statutes distinguish between grand embezzlement (a felony) and petit embezzlement (a misdemeanor).

Front 150

CON LAW What is the Privileges & Immunities clause of Article IV?

Back 150

No state may deprive citizens of other states of the Privileges & Immunities that it affords its own citizens. An anti-discrimination provision - limits ability of a state to discriminate against out-of-staters. Only FUNDAMENTAL RIGHTS (those involving important commercial activities, like the pursuit of livelihood) and CIVIL LIBERTIES are protected.

Front 151

PROFESSIONAL RESPONSIBILITY Duty to state the law truthfully

Back 151

An attorney who knowingly makes a false statement of law to the court is subject to discipline. An attorney has an obligation to be candid about the law and to cite to adverse authority if it is from a controlling jurisdiction and directly on point.

Front 152

CRIMES FALSE PRETENSES

Back 152

False pretenses generally consists of: (i) obtaining title; (ii) to the property of another; (iii) by an intentional (or knowing) false statement of past or existing fact; (iv) with the intent to defraud the other. False pretenses did not exist at CL; Modern statutes distinguish between grand false pretenses (a felony) and petit false pretenses (a misdemeanor). Distinguishable from "Larceny by Trick" by WHAT is obtained. If only possession --> larceny by trick. If title is obtained --> false pretenses.

Front 153

CIV PRO PERSONAL JXN: Foreseeability

Back 153

It must be foreseeable that the ∆ could get sued in this forum. • Does the ∆ know or should know that its products could reach the forum state?

Front 154

PROFESSIONAL RESPONSIBILITY PR Essay CHECKLIST

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I. ATTORNEY'S DUTY TO THE CLIENT: a) The duty of LOYALTY b) The duty of CONFIDENTIALITY c) The duty of COMPETENCE d) The duty of FINANCIAL INTEGRITY (i.e., fees, client property) II. ATTORNEY'S DUTY TO 3RD PARTIES: a) The duty to OPPOSING PARTIES in litigation b) The duty to ACCEPT REPRESENTATION c) The special duty of PROSECUTORS III. ATTORNEY'S DUTY TO THE COURT: a) The duty of CANDOR b) The duty of HONESTY c) The duty to WITNESSES and JURORS IV. ATTORNEY'S DUTY TO THE PROFESSION: a) The duty to avoid UNAUTHORIZED PRACTICE OF LAW b) The duty to avoid false or misleading ADVERTISEMENTS c) The duty to not improperly SOLICIT clients

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CRIMES ROBBERY

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Robbery is a felony in all jxns and consists of: (i) a taking; (ii) of personal property of another; (iii) from the other's person or presence; (iv) by force or intimidation; (v) with the intent to permanently deprive him of it.

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CON LAW When does a state law violate the DORMANT COMMERCE CLAUSE? Exceptions?

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If a law burdens interstate commerce, it violates dormant commerce clause UNLESS that law is necessary to achieve an important government purpose. Helping in-staters at out-of-staters expense is NEVER an important government purpose State has to show the law is necessary: has to show there is no less discriminatory way to achieve the objective. EXCEPTION 1: Congressional approval EXCEPTION 2: the market participant exception. (A state or local government may prefer its own citizens in receiving benefits from government programs or in dealing w/ government-owned businesses)

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PROFESSIONAL RESPONSIBILITY CONFLICT OF INTEREST: Actual Conflict

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When two clients’ interests are in present and actual conflict, the attorney cannot continue to represent both parties.

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CRIMES BURGLARY (CL)

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CL burglary is: (i) a breaking; (ii) and entering; (iii) of the dwelling; (iv) of another; (v) at nighttime; (vi) with the intent of committing a felony therein.

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PROFESSIONAL RESPONSIBILITY CONFLICT OF INTEREST: Potential Conflict

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A lawyer may represent two clients in a civil litigation if their interests are only potentially in conflict, provided the lawyer reasonably believes that he can represent both clients effectively and obtains the consent of both clients after consultation.

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CONTRACTS Ks Essay Checklist

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"Armadillos From Texas Play Rap, Eating Tacos." A -- Applicable Law F -- Formation of Ks T -- Terms of the K P -- Performance R -- Remedies for Unexcused Nonperformance E -- Excuse of Nonperformance T -- Third-Party Problems

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CIV PRO PERSONAL JXN: Relatedness

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Relatedness between the contact and the π’s claim. Quality of D’s contact with the forum. Ask: Does the π’s claim arise from the ∆’s contact with the forum? --Where the claim is related to the ∆’s contact with the forum, it is called specific jurisdiction. --If the claim does not arise from the ∆’s contact with the forum, then jurisdiction is ONLY OK if the court has general personal jurisdiction. To have this, ∆ must have CONTINUOUS AND SYSTEMATIC TIES with the forum state. --Examples of systematic ties: domicile, incorporation, major facilities there, etc.

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CRIMES ARSON

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At CL, arson consists of: (i) the malicious; (ii) burning; (iii) of the dwelling; (iv) of another. Burning = blackening or charring of structure; mere blackening by smoke or discoloration by heat is not sufficient. Modernly, expanded to include things like exposions. Malice required.

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CIV PRO PERSONAL JXN: Convenience

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Convenience: ∆ may complain that the forum makes it tough to litigate because it is far from the ∆’s home and it may be tough to get ∆’s witnesses and evidence to the forum. Standard: the forum is OK unless it puts ∆ at a SEVERE DISADVANTAGE IN THE LITIGATION • Relative wealth of the parties is not relevant.

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CIV PRO PERSONAL JXN: State's Interest

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State's interest is often to provide a forum for its citizens. Ex: The forum state might have an interest in providing a courtroom for its people who are harmed by allegedly careless out-of-state manufacturers.

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CRIMES FELONY MURDER RULE (FMR)

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A killing during the course of a felony--even an accidental one--is murder. Malice is implied from the intent to commit the underlying felony. Under the CL, the felonies included are BARRK To convict a D of FM, the prosecution must prove that he committed the underlying felony. So, if he has a substantive defense to the underlying felony, he has a defense to FM. CAUSATION required. D's conduct must he the cause-in-fact of the result; i.e., the result would not have occurred BUT FOR the D's conduct. Year and a day rule (CL) Remember, Intervening acts break the chain of causation.

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CON LAW What is the SUPREMACY CLAUSE?

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Constitution, and laws and treaties made pursuant to it, are the supreme law of the land. (eg, Federal law WINS every time)

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CIV PRO PERSONAL JXN: Summary of Constitutional Test

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“My Parents Frequently Forgot to Read Children’s Stories” • Minimum Contacts o Purposeful Availment o Foreseeability • Fair Play & Substantial Justice o Relatedness of contact and claim o Convenience o State’s Interest

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CIV PRO The CLASS ACTION

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Representative(s) sues on behalf of class members. Must initially demonstrate ALL of these: (1) NUMEROSITY: too many class members for practicable joinder; (2) COMMONALITY: There are some question of law or fact in common to class; (3) TYPICALITY: Rep's claims/defenses typical of those of the class; and (4) REPRESENTATIVE IS ADEQUATE: Rep will fairly and adequately represent class.

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CON LAW RATIONAL BASIS TEST

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RATIONALLY RELATED to a LEGITIMATE government interest. (actual purpose need not be legitimate; must only be conceivable). Gov. usually wins. The law us usually valid unless it is ARBITRARY or IRRATIONAL. Challenger has the burden of proof.

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CON LAW INTERMEDIATE SCRUTINY

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SUBSTANTIALLY related to an IMPORTANT government interest. --Court looks to government's ACTUAL purpose. --Burden is on the government.

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CON LAW STRICT SCRUTINY

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Must be NECESSARY to achieve a COMPELLING government purpose. You must find that NO less restrictive alternative could be used to achieve the government purpose. --Court looks to government's ACTUAL purpose. --Burden is on the government.

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CON LAW FREEDOM OF ASSOCIATION

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Laws that prohibit or punish group membership must meet strict scrutiny. To punish membership in a group it must be proven that the person: (i) actively affiliated with the group; (ii) knowing of its illegal activities; and (iii) with the specific intent of furthering those illegal activities.

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CON LAW EPC: Proving a Discriminatory Classification

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For strict or intermediate scrutiny to be applied, there must be INTENT on the part of the government to discriminate. Intent may be shown by: (i) A law that is DISCRIMINATORY ON ITS FACE; (ii) A DISCRIMINATORY APPLICATION of a facially neutral law; or (iii) A DISCRIMINATORY MOTIVE behind the law. NOTE: The third is the most difficult to prove. A discriminatory EFFECT alone is not enough. The legislature's discriminatory motive must be shown (e.g., by evidence of a history of discrimination).

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CON LAW Restrictions on Speech in Limited Public Forums and Non-Public Forums

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Speech and assembly can be more broadly regulated in limited public forums (e.g., military bases and schools when classes are in session) and nonpublic forums. The Gov't can regulate speech in such a forum to reserve the forum for its intended use. Regulations are valid if they are: (i) VIEWPOINT NEUTRAL; and (ii) REASONABLY RELATED TO A LEGITIMATE government purpose (rational basis).

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BUSINESS ASSOCIATIONS Rule 10b-5 Elements

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1) FRAUDULENT CONDUCT: a) SCIENTER -- an intent to deceive; b) DECEPTION -- an intent to defraud by: (i) Lying (misrepresentation of a material fact or failure to disclose a material fact in breach of a fiduciary duty to disclose) or (ii) Insider Trading (misappropriator, tipper, or tippee) 3) In connection with the ACTUAL purchase or sale of securities; 4) the fraudulent conduct involved the use of some means of INTERSTATE COMMERCE (something as simple as the use of the telephone or mail will suffice); 5) with RELIANCE and 6) LOSS CAUSATION.

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CON LAW Speech: Validity for Prior Restraints

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To be valid, a system for prior restraint must provide the following procedural safeguards: (i) The standards must be NARROWLY DRAWN, REASONABLE, AND DEFINITE; (ii) Injunction must PROMPTLY be sought; and (iii) There must be PROMPT AND FINAL DETERMINATION of the validity of the restraint. Prior restraints are very rarely allowed. The government has the heavy burden of justifying the prior restraint by showing that some SPECIAL SOCIAL HARM will otherwise result.

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BUSINESS ASSOCIATIONS RULE 16(b)

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16(b) applies to BIG CORPORATIONS: Reporting corporation (1) listed on a national exchange or (2) with at least 500 shareholders AND $10m in assets); and Applies to BIG SHOT DEFENDANTS (Officer, director, or more than 10% shareholder. Provides that a ∆ (officer, directer, or more than 10% shareholder) may NEVER buy or sell stock within a single 6 month period (short-swing trading). Fraud is not required. All "profits" from such "short-swing trading" are recoverable by the corporation. If, within 6 months before or after any sale, there was a purchase at a lower price than the sale price, there is a profit.

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CON LAW The ESTABLISHMENT CLAUSE: The "LEMON Test"

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The Establishment Clause prohibits laws respecting the establishment of religion. If government action includes a preference for one religious sect over antother, it is INVALID unless it meets STRICT SCRUTINY. If government action does NOT involve sect preference, it is VALID under the Establishment Clause if: (SEX) 1) There must be a SECULAR purpose for the law; 2) The EFFECT must be neither to advance nor inhibit religion; and 3) There must not be EXCESSIVE entanglement with religion.

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BUSINESS ASSOCIATIONS Sarbanes-Oxley Act of 2002 (SOX)

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SOX provides for the creation of the Public Company Accounting Oversight Board to register public accounting firms that prepare audit reports for companies registered under the 1934 Act. The Board establishes rules for auditing, quality control, ethics, and independence relating to preparation of audit reports. Covers reporting corporations either (1) listed on a national exchange or (2) with at least 500 shareholders AND $10m in assets). CEO and CFO must CERTIFY that based on the officer's KNOWLEDGE, reports filed with the SEC do not contain falsehoods. Gen. Rule: No knowingly false filings and no benefits during falsehoods or blackout periods. Can be punishable by up to 25 years imprisonment.

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TORTS FALSE IMPRISONMENT (FI)

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To establish a prima facie case for FI, the following elements must be proved: 1) an act or omission to act on the part of the defendant that CONFINES or RESTRAINS the plaintiff to a BOUNDED area; 2) INTENT on the part of the defendant to confine or restrain the plaintiff to a bounded area; and 3) CAUSATION.

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TORTS LEGAL REMEDIES in Tort

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Damages: D is ordered to pay money to P (compensatory, nominal, punitive). Damages are based on the harm to the P. REQUIREMENTS: 1) CAUSATION (Actual Cause) 2) FORESEEABILITY (Proximate Cause) 3) CERTAINTY (Damages cannot be too speculative) 4) UNAVOIDABILITY (P must take reasonable steps to mitigate damages).

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TORTS NEGLIGENCE

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The elements of a prima facie case for negligence include: 1) a DUTY on the part of the D to CONFORM TO A SPECIFIC STANDARD OF CONDUCT for protection of P against an unreasonable risk of injury; 2) a BREACH of that duty by D; 3) the breach is the ACTUAL AND PROXIMATE CAUSE of P's injury; and 4) DAMAGE.

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EVIDENCE RELEVANCE

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Evidence is RELEVANT if it tends to make the existence of any fact or consequence to the outcome of the action more probable than it would be without the evidence. All relevant evidence is admissible if it is offered in an unobjectionable form and manner.

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TORTS Negligence: DUTY OF CARE

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A duty of care is owed to all foreseeable plaintiffs. The extent of the duty is determined by the applicable standard of care. Therefore, when confronted with a negligence question, always ask: 1) was the P foreseeable? 2) If so, what is the applicable standard of care?

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WILLS & TRUSTS What is Undue influence - prima facia case?

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Testator has a weakness such that he is able to have his free will subjugated. 1) SUSCEPTIBILITY: Any weakness or predisposition 2) OPPORTUNITY: wrongdoer has access to testator 3) ACTIVE PARTICIPATION: or disposition to exert influence 4) UNNATURAL RESULT: i.e. wrongdoer taking devise were that person would ordinarily take nothing. Effect: only that part of the will affected by undue influence is invalid.

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CRIMES Specific Intent Crimes

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SOLICITATION: intent to have the person solicited commit the crime. ATTEMPT: Intent to complete the crime. CONSPIRACY: Intent to have the crime completed. 1ST DEGREE MURDER: premeditated intent to kill (defined by statute). ASSAULT: Intent to commit a battery. LARCENY/ROBBERY: Intent to permanently deprive another of his interest in the property taken. BURGLARY: Intent at the time of entry to commit a felony therein. FORGERY: Intent to defraud. FALSE PRETENSES: Intent to defraud. EMBEZZLEMENT: Intent to defraud.

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CRIMES 4TH AM

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The 4th Am provides that people should be free in their persons from UNREASONABLE searches and seizures.

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TORTS Negligence: BREACH OF DUTY

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Where D's conduct falls short of that level required by the applicable standard of care owed to the P, she has breached her duty. Whether the duty of care is breached in an individual case is a question for the trier of fact. The main problem relates to proof of the breach . P may use one of the following theories: 1. Custom or usage 2. Violation of Statute 3. Res Ipsa Loquitur (RIL)

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CONTRACTS Applicable Law: UCC v. Common Law

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UCC applies to sales of goods (moveable, tangible objects) while common law applies to all other types of contracts.

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REMEDIES Restitutionary Remedies

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These remedies are based on the theory that the D should not be UNJUSTY ENRICHED. Restitutionary remedies are based on the BENEFIT to the D, and the amount is calculated based on the value of the benefit. TYPES: LEGAL: a) Restitutionary Damages b) Replevin c) Ejectment EQUITABLE: d) Constructive Trusts e) Equitable Liens

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PROPERTY WASTE

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Life tenant MAINTAINS the estate--this expresses both the maximum and the minimum that the life tenant can do on the land. Three types of waste: 1. Voluntary waste 2. Permissive waste 3. Ameliorative waste

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CRIMES SEARCH

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A search is defined as a governmental intrusion into an area where a person has a REASONABLE and JUSTIFIABLE expectation of privacy.

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BUSINESS ASSOCIATIONS Liability of Corporations for actions by a Promoter

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The Corporation becomes liable on a promoter's pre-incorporation K when the corporation ADOPTS the K by: a) EXPRESS board of directors resolution; or b) IMPLIED adoption through knowledge of the K and acceptance of its benefits. The Promoter remains liable on pre-incorporation Ks until there has been a NOVATION (i.e., an agreement between the promoter, the corporation, and the other contracting party that the corporation will replace the promoter under the K).

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CRIMES ACCOMPLICE LIABILITY: Parties -- Principal

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A principal is one who, with the requisite mental state, ACTUALLY ENGAGES IN THE ACT OR OMISSION that causes the criminal result.

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CON LAW What are the 4 Justiciability Requirements (required at all levels)?

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(1) P must have standing; (2) Case must be ripe for review; (3) Case must not be moot AND (4) It must NOT be a political Q

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WILLS & TRUSTS What is incorporation by reference?

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Non-integrated writing given testamentary effect if incorporation by reference met. Requires: 1) Doc or writing 2) In EXISTENCE at execution 3) Clearly IDENTIFIED in the will 4) Testator INTENDED to incorporate the doc. NOTE: If 1-3 are met, 4 can be implied.

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PROPERTY FUTURE INTERESTS

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The INTEREST exists now but possession will not take place--if at all--until some time in the future. Future interests retained by GRANTOR: 1. REVERSION 2. POSSIBILITY OF REVERTER 3. RIGHT OF RE-ENTRY Future interests given to GRANTEE: 1. REMAINDER 2. EXECUTORY INTEREST

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WILLS & TRUSTS What are facts of independent significance?

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Identity of recipient beneficiary or what gift is intended may be given meaning by facts of significance INDEPENDENT FROM WILL - i.e., to my church. Or to all my employees at time of my death. 1) Must be a fact WOULD HAVE EXISTED even without the will. 2) Can be an event or fact before or after will is drafted Basically allows outside parole evidence to prove what stuff is; facts of independent significance allow us to fill in the blanks to T's will with parol evidence that is trustworthy.

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CRIMES ACCOMPLICE LIABILITY: Parties -- Accomplice

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An accomplice is one who, with the intent that the crime be committed, aids, counsels, or encourages the principal before or during the commission of the crime.

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TORTS NEGLIGENCE PER SE

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Negligence per se (aka "statutory negligence") is the legal doctrine whereby an act is considered negligent because it violates a statute (or regulation). In order to prove negligence per se, the plaintiff must show that: 1) the defendant violated the statute, 2) the statute is a safety statute, 3) the act caused the kind of harm the statute was designed to prevent, 4) the plaintiff was a member of the statute's protected class. In some jurisdictions, negligence per se creates merely a presumption of negligence.

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PROFESSIONAL RESPONSIBILITY DUTY OF LOYALTY: Duty to Avoid Conflicts of Interests

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“An attorney may not represent a client if the representation of the client may be materially limited by the lawyer's responsibilities to another client, or to a third person, or by the lawyer's own interests, unless:" (both must be present) i) the lawyer reasonably believes that the representation will not be adversely affected; and ii) the client consents. • must be informed consent • almost always now, consent must be in writing.

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CIV PRO In Personam Jxn: Statutory Limitations

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Each state may prescribe its own statutory bases for personal jxn, but must still satisfy constitutional requirements. Most states grant courts in personam jxn in 4 situations: (i) where the D is PRESENT in the forum state and is personally served with process; (ii) where the D is DOMICILED in the forum state; (iii) where the D CONSENTS to jxn; and (iv) where the D has committed acts bringing him within the forum state's LONG ARM STATUTES.

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CRIMES ACCOMPLICE LIABILITY: Accessory After the Fact

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An accessory after the fact is one who receives, relieves, comforts, or assists another, knowing that he has committed a felony, in order to HELP THE FELON ESCAPE ARREST, TRIAL, OR CONVICTION.

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CRIMES ARREST

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An arrest occurs when the police take a person into custody against her will for purposes of criminal prosecution or interrogation. An arrest must be based on probable cause (PC).

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WILLS & TRUSTS What are the requirements of a holographic will? What happens if it is undated?

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1) Must be signed by testator. Sig can be anywhere in will. 2) MATERIAL PROVISIONS must be in testator's own handwriting. (gifts made and the beneficiaries) NOTES: a) Testamentary can be preprinted. . .i) if there are issues extrinsic evidence as to intent is allowed. b) Series of letters may be will under integration. c) Date not required. . .i) If conflicts - Dated wins unless undated can be established as after . .ii) If both undated, then unresolved inconsistent is thrown out . .iii) If Testator may have been incapacitated during time will was drafted then invalid.

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TORTS Comparative Negligence

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A substantial MAJORITY of states now permit a contributory negligent P to recover a percentage of his damages under some type of comparative negligence system. In every case where contributory negligence is shown, the trier of fact weighs P's negligence against that of D and reduces P's damages accordingly.

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CONTRACTS K Formation In order to form a valid K, the following elements must be present:

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OFFER ACCEPTANCE CONSIDERATION

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What is a codicil? What is the major concern regarding one?

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Testamentary instrument executed with required formalities of the code, which modifies, amends, or revokes a will. A codicil REPUBLISHES A WILL. Important for: 1) Pour over wills; 2) Incorporation by reference: AND 3) Pretermission (for birth, marriage or domestic partnership) NOTE: codicil itself is a testamentary instrument thus pretermission analysis from date of codicil. (Discuss both on Bar)

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TORTS BATTERY

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Defendant commits a HARMFUL or OFFENSIVE contact; AND The contact is with the plaintiff’s PERSON. Requires INTENT and CAUSATION.

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TORTS Respondeat Superior / Vicarious Liability

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Issue: whether the principal will be vicariously liable for torts committed by agent. Two-part test: Principal will be liable for torts committed by agent if: (1) there must be a principal-agent relationship; and (2) the tort must occur within the scope of that relationship.

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TORTS ASSAULT

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D must place the plaintiff in REASONABLE APPREHENSION; That apprehension must be of IMMEDIATE HARMFUL OR OFFENSIVE CONTACT to plaintiff's person. Requires INTENT and CAUSATION.

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PROFESSIONAL RESPONSIBILITY DUTY OF LOYALTY: Conflict of Interest: Business Deals with Clients (MR 1.8(a))

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When an atty is both a party to the transaction and representing the other party to the transaction it is always suspect. Only if all of the following requirements are met will it be ok: 1) The terms of the transaction must be FAIR and reasonable; and 2) the terms must be DISCLOSED in writing in a manner the client can reasonably understand; and 3) the client is advised in writing to seek the OPINION of another lawyer, and give him the chance to do so; and 4) the client must CONSENT in writing. Mnemonic: "First Discuss Over Coffee."

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TORTS Intentional Infliction of Emotional Distress (IIED)

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∆ must engage in outrageous conduct; AND π must suffer severe emotional distress. Also requires INTENT (or recklessness) and CAUSATION. NOTE: For this intentional tort only, reckless conduct on the part of the ∆ will be adequate. Does not need actual intent.

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CRIMES SOLICITATION

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Solicitation consists of inciting, counseling, advising, inducing, urging, or commanding another to commit a felony with the specific INTENT THAT THE PERSON SOLICITED COMMIT THE CRIME.

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TORTS TRESPASS TO LAND

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Physical invasion of π’s real property. Requires INTENT and CAUSATION. o ∆ can enter on foot on in a vehicle. o Π need not know that ∆ crossed the boundary line; intent is satisfied simply by the ∆ stepping foot on the land. o Trespass can also be by throwing a tangible object onto the property (includes airspace and soil).

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PROFESSIONAL RESPONSIBILITY DUTY OF LOYALTY: Conflict of Interest

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A lawyer must not allow her personal interests, the interests of another client, or the interests of a third person to interfere with her loyalty to the client. RULE: If an interest of you, another client, or a third party MATERIALLY LIMITS OR IS ADVERSE to loyal representation, you have a conflict of interest. ***Flag and discuss ACTUAL and POTENTIAL conflicts.

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TORTS TRESPASS TO CHATTELS

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An act by Defendant that INTERFERES with PLAINTIFF'S RIGHT OF POSSESSION in a chattel. Requires INTENT, CAUSATION, and DAMAGES. o ∆ can damage the personal property item (bend, break, scratch, etc.) o Take it away. Owner has an exclusive right of possession, so if you take it away, it constitutes interference. What tort has been committed? o It depends on the degree of interference: if the interference is small, minor, or slight, then it is a TRESPASS TO CHATTELS. o By contrast, the big harm would be CONVERSION. Recovery: FMV of property for CONVERSION; Cost of repair for TRESPASS TO CHATTELS.

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REMEDIES Permanent Injunction Mnemonic

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"I'll Put Five Bucks Down" I -- Inadequate legal remedy P -- Property Right / Protectible Interest F -- Feasibility of Enforcement B -- Balancing of Hardships D -- Defenses

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CIV PRO PERSONAL JXN: Minimum Contacts

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International Shoe requires that the D have "such minimum contacts" with the forum that the exercise of jxn would be fair and reasonable. Look to 2 factors: purposeful availment and foreseeability. There must be a relevant tie between ∆ and the forum state.

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TORTS SELF-DEFENSE

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When a person REASONABLY BELIEVES that she is being (or is about to be) attacked, she may use such force as is reasonably necessary to protect against injury. DEGREE OF FORCE: must be a degree of force REASONABLY necessary to respond to the threat (rule of proportionality). Self-defense is usually not available to the initial aggressor. A reasonable MISTAKE as tot he existence of the danger is allowed.

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PROPERTY JOINT TENANCY (JT)

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The 4 UNITIES must be persent at the outset in order to create a JT (T-TIP Test): 1. Unity of TIME. All JT interests must have vested at the same time. 2. Unity of TITLE. The grant to all JTs must be the same instrument (e.g., one deed). 3. Unity of INTEREST. All JTs must take the same kind and the same amount of interest. 4. Unity of POSSESSION. All JTs must have identical rights of possession. General RULE: To create a JT, the language of conveyance must clearly reflect the grantor's INTENT to create a JT. Under the Majority Rule today, certain magic words must be used: --"as joint tenants, with right of survivorship" or "in joint tenancy with right of survivorship." The JT carries a RIGHT OF SURVIVORSHIP. The surviving tenants take automatically on the death of a JT.

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REMEDIES Remedies for Personal Property

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DESTROYED PROPERTY: --Compensatory Damages DAMAGED PROPERTY: --Compensatory Damages DISPOSSESSION (most common): --Compensatory Damages --Restitutionary Damages --Replevin --Mandatory Injunction --Constructive trusts/Equitable liens --Self-help (reasonable force to recapture)

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CRIMES CONSPIRACY

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1) An AGREEMENT BETWEEN 2 OR MORE persons; 2) An INTENT TO ENTER INTO AN AGREEMENT; and 3) An INTENT TO ACHIEVE THE OBJECTIVE of the agreement. Today, a MAJ of the states require an OVERT ACT in furtherance of the conspiracy, but mere preparation will usually suffice.

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REMEDIES Remedies for Real Property

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SIMPLE TRESPASS: --Nominal Damages --Restitutionary Damages --Injunction (avoiding multiplicity of actions DESTRUCTION/DAMAGE TO REALTY --Compensatory Damages --Injunction DISPOSSESSION: --Compensatory Damages --Restitutionary Damages --Ejectment --Constructive trusts/Equitable liens ENCROACHMENT (common): --Compensatory Damages --Injunction **No restitution NUISANCE (common): --Compensatory Damages --Injunction **No restitution

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CONTRACTS OFFER

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An offer is a manifestation of an INTENT TO CONTRACT (words or conduct showing commitment). An offer must also have DEFINITE AND CERTAIN TERMS and be COMMUNICATED to the offeree. An offer must create a REASONABLE EXPECTATION in the offeree that the offeror is willing to enter into a K on the basis of the offered terms.

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TORTS DEFAMATION

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ELEMENTS: (i) DEFAMATORY LANGUAGE; (ii) "OF OR CONCERNING" the plaintiff; (iii) PUBLICATION thereof by ∆ to a third person; and (iv) DAMAGE to π's reputation.

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REMEDIES Remedies for Personal Injury Torts

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COMPENSATORY DAMAGES: a) Economic Losses/Special Damages (certainty rules apply) b) Non-Economic Losses/General Damages (e.g., pain and suffering -- certainty rules do not apply) c) Lump Sum Payment: Discounted to present value. Inflation not taken into account under traditional view. INJUNCTION (only against prospective intentional tortious conduct).

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PROFESSIONAL RESPONSIBILITY Duty of Competence (MR 1.1; CA 3-110)

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In representing a client, a lawyer must act competently and with the legal knowledge, skill, thoroughness, and preparation that are reasonably necessary for the representation. Elements: o Legal knowledge and skill (In emergency situations, a lawyer may seek assistance, but the assistance should not exceed what is reasonably necessary to meet the emergency) o Thoroughness and preparation o Maintaining competence – continuing legal education (Be up to date with the laws). A lawyer may accept representation where the requisite level of competence can be achieved by reasonable preparation.

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REMEDIES Remedies for Fraud

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1) Damages 2) Constructive Trusts/Equitable Liens **Always consider whether (i) punitive damages should be awarded AND (ii) if it also could be analyzed as a Ks case.

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BUSINESS ASSOCIATIONS Corporate Formation

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Corporate formation is "A PAIN": 1) AUTHORIZED SHARES -- the maximum # of shares a corp is authorized to issue. 2) PURPOSE 3) AGENT and address of registered office (registered agent is the corporation's official legal representative). 4) INCORPORATORS (name and address of each) 5) NAME OF CORPORATION -- the name must contain some indicia of corporate stautus.

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BUSINESS ASSOCIATIONS The Principal-Agent Relationship In Tort

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The Principal-Agent relationship requires: (A) ASSENT -- an informal agreement between the principal and the agent; (B) BENEFIT -- the agent's conduct must be for the principal's benefit. (C) CONTROL -- Principal must have the right to control the agent by having the power to supervise the manner of the agent's performance.

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REMEDIES Specific Performance in K

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6 part checklist: 1) K is valid / certain & definite terms 2) K conditions of P must be satisfied (P must be able to show her K conditions have been fulfilled--already performed, ready and able to perform, or excused from performing). 3) Inadequate legal remedy alternative; 4 reasons: --Damages are speculative --D is insolvent --multiple suits are necessary --the thing bargained for is UNIQUE 4) Mutuality of Remedy 5) Feasibility of Enforcement 6) Defenses

Front 233

PROFESSIONAL RESPONSIBILITY Duty of Diligence (MR 1.3)

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(Duty to pay attention to your client): You have a duty to diligently, promptly, and ZEALOUSLY pursue your case to completion. Diligence is the timeliness aspect of competence. Lawyers are obligated to be diligent in their client’s behalf and are required to be in persistent pursuit of the client’s matter. Once a lawyer takes on a client’s matter, the lawyer must: (i) act on the client’s behalf with reasonable diligence and promptness; (ii) act with dedication and zeal, taking whatever lawful and ethical steps are available to vindicate the client’s cause; (iii) pursue the matter to completion; and (iv) either terminate the relationship or act with the required diligence if there is any doubt as to whether a lawyer-client relationship exists.

Front 234

TORTS Privacy Tort: INVASION OF PRIVACY

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Invasion of π’s physical seclusion in a way that would be highly offensive to the average person. • Warning: π has to be in a place where there is a reasonable expectation of privacy in order for the tort to be committed. • EX: Eavesdropping of your conversation while you are at a restaurant – no expectation of privacy.

Front 235

EVIDENCE EXAMINATION OF WITNESS: Improper Questions

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Misleading Compound Argumentative Conclusionary Assuming Facts Not in Evidence Harassing or embarrassing Calls for a Narrative Answer Calls for Speculation Lack of Coundation Nonresponsive Answer

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TORTS Privacy Tort: FALSE LIGHT

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The widespread dissemination of a material falsehood about the plaintiff that would be highly offensive to a reasonable person. • Essentially the tort of “gossip” • To proceed in false light, π must prove falsity. Damages are not limited to economic damages, which is why someone may assert it as a second claim to defamation. If it is a matter of public concern, π must show ∆ acted with actual MALICE. ***PRIVILEGES for defamation apply to false light and disclosure. • Ex: Misrepresenting a π’s political or religious beliefs. • Fault not required; reasonable belief is not a defense.

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CIV PRO PERSONAL JXN: Purposeful Availment

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D's contact with the forum must result from her purposeful availment with that forum. Contacts cannot be accidental. D must reach out to the forum in some way, such as to make $$ there or to use the roads there. The court must find that through these contacts the D PURPOSEFULLY AVAILED himself "of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws." ASK: Has the ∆ purposefully availed himself of the benefits of the State; aiming his behavior at the state? • Look to shipping goods, whether the ∆ makes money from the transactions, etc. • An interactive website CAN be purposeful availment.

Front 238

WILLS & TRUSTS What is the rule of Lapse?

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If beneficiary doesn't survive the testator, the gift lapses and returns the residuary of the estate.

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TORTS Privacy Tort: DISCLOSURE

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Widespread dissemination of confidential information about the π that is highly offensive to a reasonable person. EXCEPTIONS: • If it is newsworthy information, the media can publish it. • The duel-life fact pattern: stripping to pay law school tuition hypo. ***PRIVILEGES for defamation apply to false light and disclosure.

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WILLS & TRUSTS What is CA Anti-lapse statute?

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Anti-lapse statute applies where devisee is: 1) Kindred of testator or of testators spouse and devisee predeceases testator 2) Leaving issue. NOTE: The anti-lapse statute applies to both wills and revocable trusts. But the devisee CANNOT be the SPOUSE or domestic partner

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PROPERTY DUTIES OF THE TENANT

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1. DUTY TO PAY RENT 2. DUTY TO MAINTAIN PREMISES If the lease is silent, the T is still subject to the CL duty not to commit waste. If the lease includes a covenant to repair, an express covenant makes the tenant the absolute insurer of the property. The MAJORITY view is that once the tenant covenants to repair, he is liable for EVERYTHING--including ordinary wear and tear. BUT, if the premises are destroyed without the tenant's fault, the tenant will be under no duty to rebuild the structure. 3. DUTY not to use the premises for ILLEGAL PURPOSES 4. DUTY NOT TO ABANDON THE PREMISES

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TORTS ECONOMIC TORTS

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• FRAUD – misrepresentation of a material fact, coupled with scienter (∆ made the statement and knew π would rely on it) with the intent to induce the π to act or refrain from acting, that caused the π to rely on that statement, and that π’s reliance was justifiable; and π must suffer actual loss. • NEGLIGENT MISREPRESENTATION –carelessly misrepresenting a fact in a business relationship where someone relies on your expertise • INDUCING BREACH OF CONTRACT -- Persuading someone to walk away from a binding contractual deal. • MALICIOUS PROSECUTION – instituting a lawsuit without any probable cause, for an improper purpose. • ABUSE OF PROCESS – Using a judicial proceeding or judicial process for an illicit purpose.

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REMEDIES Specific Performance Mnemonic

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"Cha Cha Is My Favorite Dance" C -- Contract is Valid C -- Conditions of P satisfied I -- Inadequate legal remedy M -- Mutuality of remedy F -- Feasibility of enforcement D -- Defenses

Front 244

CRIMES ATTEMPT

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A criminal attempt is an act that, although done with the intention of committing a crime, falls short of completing the crime. Attempt requires: (1) A specific intent to commit the crime; and (2) An overt act in furtherance of that intent.

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TORTS CONVERSION

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(i) An act by D that INTERFERES WITH P'S RIGHT OF POSSESSION in a chattel; (ii) The interference is SO SERIOUS that it warrants requiring D to pay the chattel's full value; (iii) INTENT and (iv) CAUSATION. Acts of conversion include wrongful acquisition (theft), wrongful transfer, wrongful detention, and substantially changing, severely damaging, or misusing a chattel. The longer the withholding of the property, the more likely it is to be a conversion. P may recover DAMAGES (FMV at the time of conversion) or POSSESSION (replevin).

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PROPERTY DUTIES OF THE LANDLORD

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1. DUTY TO DELIVER POSSESSION OF THE LEASED PREMISES 2. IMPLIED WARRANTY OF HABITABILITY At CL, there was NO DUTY to deliver the leased premises in habitable condition. Today, there exists an implied warranty of habitability, but ONLY FOR RESIDENTIAL PROPERTIES. 3. IMPLIED COVENANT OF QUIET ENJOYMENT

Front 247

BUSINESS ASSOCIATIONS CORPORATE FORMATION: Ultra Vires Acts

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Activities beyond the scope of a stated business purpose are considered to be "ultra vires." At CL, ultra vires acts were void and unenforceable. But under the RMBCA, ultra vires acts are generally ENFORCEABLE, and the ultra vires nature of an act may be raised in only 3 situations: 1) A SHAREHOLDER may sue the corp to enjoin the proposed ultra vires act; 2) THE CORPORATION may sue an officer or director for damages for approving an ultra vires act; and 3) THE STATE may bring an action to dissolve a corporation for committing an ultra vires act.

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PROPERTY Tenant's Remedies for Breach of Implied Warranty of Habitability

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1) Tenant can move out AND end the lease (w/ no further lease obligation). OR 2) Tenant can stay on the property AND sue for damages. 3) A growing number of states also allow the T to make reasonable repairs and deduct this cost from future rent payments ("repair and deduct")

Front 249

PROFESSIONAL RESPONSIBILITY Confidentiality MR 1.6

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“A lawyer shall not reveal information relating to the representation of a client unless the client gives INFORMED CONSENT, the disclosure is IMPLIEDLY AUTHORIZED in order to carry out the representation or the disclosure is permitted [by an exception]:” Basically, no revealing client information without the client’s consent, unless: • To prevent death or bodily harm • To prevent the client from committing a crime or fraud (But not in CA) • To prevent substantial injury to another’s property (But not in CA) • To secure legal advice about compliance with the rules • To establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, or • To comply with other law or court order

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REMEDIES Rescission and Reformation Mnemonics

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RESCISSION: "Good Dog" G -- Grounds for Rescission D -- Defenses REFORMATION: "Very Good Dog" V -- Valid K G -- Grounds for Reformation D -- Defenses

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PROPERTY Implied Covenant of Quiet Enjoyment

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Every lease includes the LL's implied promise not to interfere with the tenant's QUIET ENJOYMENT of the leased premises. This implied promise is included in EVERY lease--residential, commercial, or otherwise. The LL may breach this implied promise in 3 ways: 1) TOTAL EVICTION 2) PARTIAL EVICTION 3) CONSTRUCTIVE EVICTION

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TORTS STRICT LIABILITY: Prima Facie Case

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For SL, the following elements must be shown: (i) the nature of the defendant's activity imposes an ABSOLUTE DUTY TO MAKE SAFE; (ii) the dangerous aspect of the activity was the ACTUAL and PROXIMATE CAUSE of the plaintiff's injury; and (iii) the plaintiff suffered DAMAGE to person or property.

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REMEDIES TORT Remedies

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LEGAL REMEDIES 1. Damages RESTITUTIONARY REMEDIES (Legal Restitutionary Remedies) 2. Restitutionary Damages 3. Replevin 4. Ejectment (Equitable Restitutionary Remedies) 5. Constructive Trusts 6. Equitable Liens EQUITABLE REMEDIES 7. Injunctive Relief

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TORTS PRODUCTS LIABILITY

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Products liability refers to the liability of a supplier of a defective product to someone injured by the product. There are 5 theories of liability that P may use: (i) intent; (ii) negligence; (iii) strict liability; (iv) implied warranties or merchantability and fitness for a particular purpose; and (v) representation theories (express warranty and misrepresentation).

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TORTS The Principal-Agent Relationship: SCOPE

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The principal is liable for its agent's acts within the SCOPE of agency. FACTORS: 1) Was the conduct "of the kind" the agent was hired to perform? 2) Did the tort occur "on the job"? Frolic vs. Detour 3) Did the agent intend to benefit the principal?

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TORTS PRODUCTS LIABILITY: Elements

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To find liability under ANY products liability theory, P must show: (i) a DEFECT; and (ii) existence of the defect WHEN THE PRODUCT LEFT D's CONTROL.

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REMEDIES CONTRACT Remedies

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LEGAL REMEDIES 1. Damages RESTITUTIONARY REMEDIES (Legal Restitutionary Remedies) 2. Restitutionary Damages 3. Replevin 4. Ejectment (Equitable Restitutionary Remedies) 5. Constructive Trusts 6. Equitable Liens EQUITABLE REMEDIES 7. Specific Performance* 8. Rescission* 9. Reformation* *Different from Tort remedies

Front 258

CIV PRO PERSONAL JXN: Stream of Commerce

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Asahi: four justices found that placing an item in the stream of commerce, with the knowledge that it would end up in a particular forum, constituted purposeful availment. Four other justices found that there would also have to be a showing that the D took some additional step to avail itself of the forum.

Front 259

BUSINESS ASSOCIATIONS Liability of Principle for Ks Entered by Agents

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Issue: whether the principal is liable for Ks entered into by its agent. TEST: Principal is liable for Ks entered into by its agent if the principal AUTHORIZED the agent to enter the K. There are 4 types of authority: 1) ACTUAL EXPRESS Authority 2) ACTUAL IMPLIED Authority 3) APPARENT Authority 4) RATIFICATION

Front 260

BUSINESS ASSOCIATIONS PIERCING THE CORPORATE VEIL

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As a general rule, shareholder is not liable for the debts of a corporation. Except: the court will pierce the corporate veil to avoid fraud or unfairness. Courts will pierce the corporate veil for: ALTER EGO (failure to observe sufficient corporate formalities); or UNDER-CAPITALIZATION (failure to maintain sufficient funds to cover foreseeable liabilities). Remember: Courts are generally more willing to PCV for a tort victim than for a K claimant.

Front 261

BUSINESS ASSOCIATIONS DUTIES of Agent to Principal

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In return for reasonable compensation and reimbursement of expenses, agents owe principals: 1) Duty of CARE; 2) Duty to OBEY instructions that are reasonable; and 3) Duty of LOYALTY. The agent may NEVER do any of the following: (i) engage in SELF-DEALING (agent cannot receive a benefit to the detriment of the principal); (ii) USURP the principal's opportunity; or (iii) make SECRET PROFITS at the principal's expense without disclosure.

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CONTRACTS ACCEPTANCE

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An acceptance must manifest an intent to contract to the terms of the offer and be communicated to the offeror. The offeree exercises the power given her by the offeror to create a contract.

Front 263

EVIDENCE HEARSAY

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Hearsay is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." If a statement is hearsay, and no exception is applicable, the evidence must be excluded upon appropriate objection to its admission.

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CRIMES FOTPT: Basic RULE

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Basic Rule: In addition to excluding all evidence which has been illegally obtained, any additional evidence acquired either directly or indirectly from the illegal arrest, search, or seizure must also be excluded as tainted "fruit of the poisonous tree." (Wong Sun v. US.)

Front 265

CIV PRO PERSONAL JXN: Fairness

Back 265

International Shoe also requires that the exercise of jxn not offend "traditional notions of fair play and substantial justice." FACTORS: --Relatedness of claim to contact -claim arising from activity in the state -systematic and continuous activity in the State --Convenience --Forum State's Interest (in providing redress for its citizens) --Other factors: (i) the P's interest in obtaining convenient and effective relief; (ii) the interstate judicial system's interest in obtaining the most efficient resolution of controversies; and (iii) the shared interest of the states in furthering fundamental substantive social policies.

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CRIMES Warrantless Search

Back 266

Warrantless search is presumptively unreasonable under the 4th Am. unless a SW exception may apply. Exceptions: 1) SITA 2) Auto Exception 3) Inventory/Impound Search (Inevitable Discovery) 4) "Pat Search" of Car

Front 267

EVIDENCE Statements that are NON-HEARSAY under the FRE

Back 267

FRE 801(d) provides that certain statements, when relevant, are not hearsay: 1) Prior Statements by a Witness 2) Admissions by Party-Opponent

Front 268

CONTRACTS Acceptance: The Mailbox Rule

Back 268

Acceptance by mail or similar menas creates a K at the MOMENT OF DISPATCH provided that the mail is properly addressed and stamped, UNLESS: (i) The OFFER STIPULATES that acceptance is not effective until received; or (ii) An OPTION K is involved (--> an acceptance under an option K is effective only upon RECEIPT). NOTE: because in most jxns a revocation is effective only upon receipt, under the mailbox rule if the offeree dispatches an acceptance BEFORE HE RECEIVES A REVOCATION sent by the offeror, a K is formed.

Front 269

CON LAW PRIVACY is a FUNDAMENTAL RIGHT - what are the 9 privacy categories that are protected by SDP & the 1 he highlighted as not being protected?

Back 269

(1) RT to marry (2) RT to procreate (3) RT to custody of one's children. (4) RT to keep the family together (housing) (5) RT to control the upbringing of one's children (6) RT to purchase & use contraceptives (7) RT to abortion (undue burden test) (8) RT to engage in private consensual homosexual activity (9) RT to refuse medical treatment BUT NO RT to physician - assisted suicide

Front 270

CONTRACTS CONSIDERATION

Back 270

Consideration is a BARGAINED FOR EXCHANGE whereby there is a DETRIMENT AND BENEFIT flowing from each party to the other. LONG RULE: Two elements are necessary to constitute consideration: (i) there must be a BARGAINED FOR EXCHANGE between the parties; and (ii) that which is bargained for must be considered of LEGAL VALUE or, put differently, it must constitute a benefit to the promisor OR a detriment to the promisee. Detriment is determined by whether an exchange contains legal value.

Front 271

COMMUNITY PROPERTY QUASI-COMMUNITY PROPERTY (QCP)

Back 271

Property that would have been community property if the parties had been CA domiciliaries at the time of acquisition.

Front 272

COMMUNITY PROPERTY QUASI-MARITAL PROPERTY (QMP)

Back 272

Applies to putative spouses. Putative spouses are spouses who think that they are legally married (and actually tried to get legally married) but for whatever reason they actually are not.

Front 273

CRIMES INSANITY: M'Naughten

Back 273

D is entitled to an acquittal if the proof establishes that: a) a DISEASE of the mind b) CAUSED A DEFECT of reason c) such that the defendant LACKED THE ABILITY AT THE TIME of his actions to either: (1) know the WRONGFULNESS of his actions; or (2) understand the NATURE AND QUALITY of his actions.

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PROPERTY 4 Requirements to Enforce a RESTRICTIVE COVENANT

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1) INTENT -- The parties must intend that the restriction run with the land. 2) NOTICE -- The person must have either actual, constructive or inquiry notice. 3) TOUCH AND CONCERN -- (RULE) If the performance of the covenant makes that land more valuable or more useful, the covenant touches and concerns the land. NOTE: covenants not to compete DO touch and concern the land. 4) PRIVITY -- Horizontal and Vertical.

Front 275

CONTRACTS DEFENSES to Consideration

Back 275

1. Absence of Mutual Assent 2. Absence of Consideration 3. Public Policy Defenses -- Illegality 4. Lack of Capacity 5. Defenses to Enforcement (i) Statute of Frauds (ii) Unconscionability

Front 276

PROPERTY Determining PRIVITY in a RESTRICTIVE COVENANT

Back 276

BURDEN: Successor-in-Interest is the DEFENDANT--requires both: a) VERTICAL PRIVITY -- refers to those who subsequently obtain the property subject to the covenant. They must take the FULL ESTATE. b) HORIZONTAL PRIVITY -- refers to the original parties to the peromise. They must share some interest in the land independent of the covenant. To establish horizontal privity, there must be a conveyance of the property between the original properties. BENEFIT: Successor-in-Interest is PLAINTIFF: a) VERTICAL PRIVITY -- On the benefit side, the general rule is that the holder of any succeeding possessory estate may enforce the benefit of the promise as a covenant at law. 2) NO horizontal privity is required to enforce the benefit of a restrictive covenant.

Front 277

WILLS & TRUSTS Dependent Relative Revocation (RULE)

Back 277

1) If testator revokes her will, or a portion thereof, 2) in the MISTAKEN belief that a substantially identical will or codicil effectuates her intent, 3) then, by operation of law, 4) the revocation of the first will be deemed conditional, dependent, and relative to the second effectuating testator's intent. 5) If the second does not effectuate testator's intent, the first (by pure legal fiction) was never revoked.

Front 278

CRIMES EXCLUSIONARY RULE

Back 278

The exclusionary rule prohibits the introduction, at criminal trial, of evidence obtained in violation of a D's 4th, 5th, or 6th Amendment rights.

Front 279

PROPERTY EQUITABLE SERVITUDES: 3 Requirements to Obtain an INJUNCTION to Enforce the Burden of the Promise

Back 279

1) INTENT that the restriction be enforceable by successors-in-interest; 2) The restriction must TOUCH and CONCERN the land; 3) NOTICE to the subsequent purchaser (actual, constructive, or inquiry). NO PRIVITY of any kind is required to enforce the promise in equity as an equitable servitude.

Front 280

WILLS & TRUSTS W&T Essay CHECKLIST

Back 280

WILLS: 1. Execution of wills 2. Revocation of wills 3. Components of wills (integration, republication by codicil, incorporation by reference, acts of independent significance) 4. Interpretation of wills 5. Intestate succession 6. Rights of surviving spouse and children (pretermitted) 7. Bars to succession (homicide, elder abuse, no contest clause) TRUSTS: 1. Creation of a valid trust (7 elements) 2. Types of Trusts (discretionary, mandatory, spendthrift, honorary, secret, semi-secret, revocable, totten, charitable) 3. Modification and termination of trusts 4. Trust administration and Trustees Duties

Front 281

COMMUNITY PROPERTY SEPARATE PROPERTY (SP)

Back 281

All property owned by a person before marriage All property acquired by gift, devise, bequest, or descent All property acquired by rent, issues, and profits of SP

Front 282

WILLS & TRUSTS Creation of a Valid Trust (7 elements)

Back 282

1. Settlor/trustor 2. Delivery 3. Trustee 4. Intent 5. Trust Property (Res) 6. Beneficiaries 7. Valid Trust Purpose (cannot violate law or public policy)

Front 283

PROPERTY EQUITABLE SERVITUDES: Requirements to Establish a Mutual Right of Enforcement

Back 283

1. An INTENT to impose a SERVITUDE (a restriction on use) on ALL land in the subdivision; 2. NOTICE (actual, constructive, or inquiry); DEFENSES: 1. Unclean hands 2. Acquiescence 3. Laches 4. Estoppel

Front 284

WILLS & TRUSTS Trustees Duties

Back 284

1) FIDUCIARY DUTY 2) DUTY OF CARE (Trustee must exercise degree of care, skill and caution of a reasonable person in managing her own property) DUTIES RELATING TO CARE OF TRUST PROPERTY: a) duty to collect and protect trust property b) duty to earmark property c) duty not to delegate investment decisions d) duty not to commingle trust funds e) duty to maintain marketability of trust property f) duty to keep trust property productive g) duty to diversify investments h) duty not to speculate i) duty to account do trust beneficiaries. 3) DUTY OF LOYALTY: a) Self-dealing b) Conflict of interest

Front 285

PROFESSIONAL RESPONSIBILITY Candor Toward the Tribunal MR 3.3

Back 285

(a) a lawyer shall not knowingly: (1) Make false statements, or fail to correct them (2) Fail to disclose legal authority (3) Offer evidence that the lawyer knows to be false

Front 286

PROPERTY ADVERSE POSSESSION

Back 286

Six Requirements: H-E-L-U-V-A 1. HOSTILE (X is on the land with no right to be there) 2. EXCLUSIVE (X must be excluding others from possessing the property) 3. LASTING (The possession must last for the statutory period; CL is 20 yrs) 4. UNINTERRUPTED USE (continuous use that an ordinary owner would make) 5. VISIBLE (open + notorious) 6. ACTUAL [POSSESSION] (X must actually possess the land to obtain title. --The true owner DOES NOT have to know what's going on. --The adverse possessor (X) DOES NOT have to think he owns it (GF/bad faith is irrelevant).

Front 287

COMMUNITY PROPERTY CP Presumption

Back 287

Property acquired during marriage is presumptively CP. Think possession vs. acquisition.

Front 288

Directors' Liability: DUTY TO MANAGE

Back 288

Directors have a DUTY TO MANAGE the corporation. Directors may delegate management functions to a committee of one or more directors that recommends action to the board.

Front 289

PROFESSIONAL RESPONSIBILITY Advertising

Back 289

A lawyer is allowed to advertise their services through written, recorded, or electronic communication, subject to limitations: • Lawyer CANNOT make false or misleading communication about the lawyer or lawyer’s services. “False or misleading” = 1) If it contains a material misrepresentation of fact or law, OR 2) Omits a fact necessary to make the statement considered as a whole not materially misleading EVERY written, recorded, or electronic communication MUST include the words “Advertising Material” on the outside envelope (if any), AND at the beginning and ending of any recorded or electronic communication, UNLESS they fit either of the previous exceptions (lawyer, past relationship. Lawyer MAY advertise online IF lawyer is licensed to practice in the state where the ad is initially placed. MUST specify jurisdiction where lawyer can practice.

Front 290

CIV PRO DIVERSITY OF CITIZENSHIP JXN

Back 290

Section 1332: Diversity of Citizenship; Amount in Controversy: (a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between— (1) citizens of different States; (2) citizens of a State and citizens or subjects of a foreign state; (3) citizens of different States and in which citizens or subjects of a foreign state are additional parties; and (4) a foreign state, defined in section 1603 (a) of this title, as plaintiff and citizens of a State or of different States. [aliens are deemed to be a citizen of the state in which such alien is domiciled] (b) [...] (c) For the purposes of this section and section 1441 of this title— (1) a corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business... [and] (2) the legal representative of the estate of a decedent shall be deemed to be a citizen only of the same State as the decedent, and the legal representative of an infant or incompetent shall be deemed to be a citizen only of the same State as the infant or incompetent. (d) [...] (e) The word “States”, as used in this section, includes the Territories, the District of Columbia, and the Commonwealth of Puerto Rico.

Front 291

CRIMES 6th Am RIGHT TO COUNSEL

Back 291

The 6th Am provides that in all criminal prosecutions, the D has a right to the assistance of counsel. It applies at all CRITICAL STAGES of a criminal prosecution after formal proceedings have begun. The right is violated when the police deliberately elicit an incriminating statement from a D without first obtaining a waiver of the D's right to have counsel present. The 6th Am right has been limited to cases where ADVERSARY JUDICIAL PROCEEDINGS have begun (e.g., formal charges have been filed). Thus, the right DOES NOT APPLY TO PRE-CHARGE CUSTODIAL INTERROGATIONS.

Front 292

PROPERTY PRESENT and FUTURE COVENANTS

Back 292

PRESENT: 1. Covenant of Seisin 2. Covenant of Right to Convey 3. Covenant Against Encumbrances FUTURE: 1. Covenant of Quiet Enjoyment 2. Covenant of Warranty 3. Covenant of Further Assurances--The "Mop-Up" Covenant BREACH of a Covenant of Title: Where there is a breach of warranty, plaintiff's damages will be limited to the amount of purchase price received by the warrantor plus any incidental damages.

Front 293

BUSINESS ASSOCIATIONS Directors' Liability: BUSINESS JUDGMENT RULE (BJR)

Back 293

In managing the corporation, the directors are protected from liability by the BJR. The BJR is a presumption that the directors manage the corporation in good faith and int he best interests of the corporation and its shareholders. As such, directors will not be liable for INNOCENT MISTAKES of business judgment.

Front 294

CRIMES ENTRAPMENT

Back 294

Entrapment occurs if the intent to commit the crime originated not with the D, but rather with the creative activities of law enforcement officers. The defense of entrapment consists of 2 elements: 1) the CRIMINAL DESIGN must have ORIGINATED WITH LAW ENFORCEMENT officers; and 2) the D must NOT have been PREDISPOSED to commit the crime prior to the initial contact by the government. If D offers evidence to show these two elements, then the gov't must show predisposition beyond a reasonable doubt.

Front 295

COMMUNITY PROPERTY Basic CP Essay INTRO Paragraph 1

Back 295

"California is a community property state. All property acquired during the course of a marriage is presumed to be community property. All property acquired before marriage or after permanent separation is presumed to be separate property. In addition, any property acquired by gift, bequest, devise or descent is presumed to be separate property."

Front 296

CRIMES BATTERY

Back 296

Battery is an unlawful application of force to the person of another resulting in either bodily injury or an offensive touching. Need not be intentional; force need not be applied directly. Consent is a defense only to simple battery (e.g., medical operation).

Front 297

CRIMES 5TH AM (MIRANDA)

Back 297

The 5th Am provides that no person shall be compelled to be a witness against himself. Interpreted to mean that a person shall not be compelled to give self-incriminating testimony

Front 298

BUSINESS ASSOCIATIONS Directors' Liability: FIDUCIARY DUTY

Back 298

Despite protection presumed from the business judgment rule, directors are FIDUCIARIES who owe duties of CARE and LOYALTY.

Front 299

CRIMES ASSAULT

Back 299

An assault is either: (i) an ATTEMPT TO COMMIT A BATTERY; or (ii) the INTENTIONAL CREATION--other than by mere words--of a REASONABLE APPREHENSION in the mind of the victim of imminent bodily harm.

Front 300

CRIMES MIRANDA: When Required

Back 300

Anyone in police CUSTODY and accused of a crime, no matter how minor a crime, must be given Miranda warnings PRIOR TO INTERROGATION by the police.

Front 301

CON LAW What is the 3 part test for determining whether something qualifies as OBSCENE?

Back 301

MUST meet ALL of these requirements: (1) The material must appeal to the prurient interest (= shameful or morbid interest in sex) (2) Material must be patently offensive under the law prohibiting obscenity (ANY law must delineate which depictions would qualify as patently offensive) (3) Taken as a whole, the material must lack serious redeeming artistic, literary, political or scientific value (= value determined by a NATIONAL standard & NOT a local value)

Front 302

BUSINESS ASSOCIATIONS Directors' Liability: DUTY OF CARE

Back 302

RULE: A director owes the corporation a duty of care. She must act with the care that a PRUDENT person would use with regard to her own business, unless the Articles have limited director liability for a breach of the duty of care. EXAM ANSWER: Directors have a duty to manage. They are protected by the BJR, but they are fiduciaries who have duties of care and loyalty. Directors must act with prudence unless the articles have limited liability or a duty of care.

Front 303

COMMUNITY PROPERTY Basic CP Essay INTRO Paragraph 2

Back 303

"In order to determine the character of any asset, courts will trace back to the source of funds used to acquire the asset. A mere change in form of an asset does not change its characterization. With these basic principles in mind, we can now turn to the specific items of property involved in this instance."

Front 304

CRIMES MURDER

Back 304

Murder is the unlawful killing of another human being with malice aforethought. Malice aforethought may be express or implied.

Front 305

BUSINESS ASSOCIATIONS Directors' Liability: DUTY OF LOYALTY

Back 305

RULE: A director owes the corporation a duty of loyalty. A director may not receive an UNFAIR benefit to the detriment of the corporation or its shareholders, UNLESS there has been material DISCLOSURE and INDEPENDENT RATIFICATION. Types: A. SELF-DEALING B. USURPING CORPORATE OPPORTUNITIES C. RATIFICATION EXAM ANSWER: Directors have a duty to manage. They are protected by the BJR, but they are fiduciaries who have duties of care and loyalty. Directors may not receive an unfair benefit unless there has been disclosure, plus independent ratification.

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EVIDENCE HEARSAY EXCEPTIONS -- Residual "Catch All" Exception

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The FRE provides a general catch-all exception of hearsay statements not covered by specific exceptions. There are 3 requirements: 1) "TRUSTWORTHINESS" -- Statement must have "circumstantial guarantees of trustworthiness'" that are equivalent to those of statements admitted under other hearsay exceptions. 2) "NECESSITY" -- The statement must be offered on a MATERIAL FACT, and must be MORE PROBATIVE as to that fact than any other evidence which the proponent can reasonably produce so that the "INTERESTS OF JUSTICE" will be served by its admission. 3) NOTICE TO ADVERSARY -- the proponent must give notice in advance of trial to the adverse party as to the nature of the statement so that the adversary has an opportunity to prepare to meet it.

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CRIMES MURDER: Malice Aforethought

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In the absence of facts excusing the homicide or reducing it to VM, malice aforethought exists if the D has any of the following states of mind: (i) Intent to kill (express malice); (ii) Intent to inflict GBI; (iii) Reckless indifference to an unjustifiably high risk to human life ("abandoned and malignant heart"); or (iv) Intent to commit a felony (FMR) In the case of (i), (iii), or (iv), the malice is IMPLIED.

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COMMUNITY PROPERTY Distribution of CP at DIVORCE

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"The basic rule at divorce is to divide each community asset equally in kind. Thus, each spouse is given one-half of each community asset."

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CRIMES VOLUNTARY MANSLAUGHTER (VM)

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VM is an intentional killing distinguishable from murder by the existence of adequate provocation, i.e., a killing in the heat of passion. ELEMENTS: a) the provocation must have been one that would arouse SUDDEN AND INTENSE PASSION in the mind of an ORDINARY PERSON such as to cause him to lose his self-control; b) the D must have IN FACT BEEN PROVOKED; c) there MUST NOT HAVE BEEN A SUFFICIENT TIME to cool; and d) the defendant IN FACT did not cool off between the provocation and the killing.

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COMMUNITY PROPERTY Distribution of CP at DEATH

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If the spouse dies with a will, the spouse is entitled to dispose of all of his or her separate property and one-half of the community property. If the spouse dies withotu a will, the community property is awarded entirely to the surviving spouse. Between 1/3 and all of the decedent's separate property will be awarded to the surviving spouse depending on whether there are issue or parents surviving.

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COMMUNITY PROPERTY QCP: At DEATH and DIVORCE

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"At DEATH, the surviving spouse has a 1/2 interest in the QCP titled in the decedent's name. The decedent does not have an interest in the QCP titled in the survivor's name." "At DIVORCE, QCP is treated exactly like CP."

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CRIMES INVOLUNTARY MANSLAUGHTER (IVM)

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There are two types of IVM: 1) Criminal Negligence 2) "Unlawful Act" Manslaughter

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CONTRACTS BREACH

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When a party fails to perform materially by the terms of the K he is in breach. The nonbreaching party may seek damages.

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CON LAW What are the boundaries of congressional action under the Commerce Clause after Lopez? (3 rules)

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1. Congress may regulate the CHANNELS of interstate commerce 2. Congress may regulate the INSTRUMENTALITIES of interstate commerce, and persons or things in interstate commerce; OR 3. Congress may regulate ECONOMIC ACTIVITIES that have a SUBSTANTIAL EFFECT on interstate commerce In area of non-economic activity, a substantial effect cannot be based on cumulative impact – Morrison (VAWA) Wickard v. Filburn – cumulative impact of economic activity, even if it’s for individual use, falls under the Commerce Clause

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CRIMES FALSE IMPRISONMENT (FI)

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The CL misdemeanor of FI consisted of: (i) unlawful (ii) confinement of a person (iii) without his valid consent.

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COMMUNITY PROPERTY Treatment of QCP at DEATH

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For every asset of QCP, there is an acquiring spouse and a non-acquiring spouse, and QCP is treated like the acquiring spouse's SP during marriage. When one spouse dies, he does not have any rights to the surviving spouse's SP. Thus, when a non-acquiring spouse dies, he has no rights to the acquiring spouse's QCP.

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PROFESSIONAL RESPONSIBILITY PR Essay Checklist Mnemonic

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"Clients Love Fierce Counsel: Courts Feel Differently." DUTIES OWED TO CLIENTS: --Confidentiality --Loyalty --Financial Responsibility --Competence --(and other reasonable things) DUTIES TO ENTITIES OTHER THAN YOUR CLIENT: --Candor/Truthfulness --Fairness --Dignity/Decorum --(and other reasonable things)

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CRIMES KIDNAPPING

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At CL, the misdemeanor of kidnapping was the forcible abduction or stealing away of a person from his own country and sending him to another. Modern statutes and the MPC extends far beyond this definition. Kidnapping is defined as confinement of a person that involved either: (a) some movement (i.e., asportation) of the victim; or (b) concealment of the victim in a "secret" place.

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PROFESSIONAL RESPONSIBILITY CONFIDENTIALITY: General Rule

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You can't reveal anything RELATED TO THE REPRESENTATION of a client without her consent. The rationale is to maximize candor and trust, allowing the adversarial system to work.

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CIV PRO ERIE DOCTRINE

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A federal court, in the exercise of its diversity jxn, is required to apply the SUBSTANTIVE LAW OF THE STATE in which it is sitting, including that state's conflict of law rules. However, the federal courts apply FEDERAL PROCEDURAL LAW in diversity cases. First, ask if there is a federal law directive on point (if so, use that). If there is no federal directive on point, ask whether the issue is substantive or procedural. --Substantive --> fed judge must follow state law in a diversity case --Procedural --> fed judge may ignore state law.

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CONTRACTS Article 2: WARRANTIES

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Ks for the sale of goods automatically include a warranty of title (in most cases). They may also include certain implied warranties and express warranties. WARRANTY OF TITLE & WARRANTY AGAINST INFRINGEMENT: Any seller of goods warrants that the title transferred is good (free of liens or encumbrances). This arises automatically and need not be mentioned in the K. A merchant seller regularly dealing in goods of that kind automatically warrants that the goods are delivered free of any patent, trademark, copyright, or similar claims. But a buyer who furnishes specifications for the goods to the seller must hold the seller harmless against such claims. IMPLIED WARRANTY OF MERCHANTABILITY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE EXPRESS WARRANTIES

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CRIMES RAPE

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Rape is the unlawful carnal knowledge of a woman by a man, not her husband, without her effective consent. Requires only penetration of the female sex organ by the male sex organ. Today, most states have abolished the marriage exception. Must be without the victim's effective consent.

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CIV PRO FEDERAL QUESTION JXN (Section 1331)

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The district courts shall have original jxn of all civil actions ARISING UNDER THE CONSTITUTION, LAWS OR TREATIES OF THE UNITED STATES... --fed Q must appear as part of the P's cause of action as set out in a well-pleaded complaint.

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CIV PRO VENUE -- In General

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Venue in civil actions in the federal courts is proper in: (i) a judicial district where ANY D RESIDES, if all Ds reside in the same state; (ii) a judicial district in which a substantial par to f the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or (iii) if there is no district anywhere in the US which satisfies (i) or (ii), (a) for actions based SOLELY ON DIVERSITY, a judicial district in which any D is subject to personal jxn at the time the action is commenced; or (b) for actions NOT BASED SOLELY ON DIVERSITY, a judicial district in which any D may be found.

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CRIMES LARCENY

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(Basic CL property offense) Larceny consists of: (i) A taking (caption); (ii) and carrying away (asportation); (iii) of tangible personal property; (iv) of another (v) by trespass; (vi) with intent to permanently (or for a reasonable time) deprive the person of his interest in the property. (e.g., intent to borrow not larceny).

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PROFESSIONAL RESPONSIBILITY Duty of CANDOR to the court and FAIRNESS to your adversary

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A lawyer is prohibited from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. You must refuse to make a false statement of material fact, or offer evidence you know is false to a tribunal, or fail to correct a false statement of material fact or law that you previously made or presented to the tribunal.

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CIV PRO CA Long-Arm Statute (§ 410.10)

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“A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States.” o CA Statutory analysis: Easy to meet, because the statute reaches the constitutional limit.

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CRIMES EMBEZZLEMENT

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Embezzlement, variously defined in different jxns, generally requires: (i) the fraudulent; (ii) conversion; (iii) of property; (iv) of another; (v) by a person in lawful possession of that property. Embezzlement did not exist at CL; Modern statutes distinguish between grand embezzlement (a felony) and petit embezzlement (a misdemeanor).

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CON LAW What is the Privileges & Immunities clause of Article IV?

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No state may deprive citizens of other states of the Privileges & Immunities that it affords its own citizens. An anti-discrimination provision - limits ability of a state to discriminate against out-of-staters. Only FUNDAMENTAL RIGHTS (those involving important commercial activities, like the pursuit of livelihood) and CIVIL LIBERTIES are protected.

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PROFESSIONAL RESPONSIBILITY Duty to state the law truthfully

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An attorney who knowingly makes a false statement of law to the court is subject to discipline. An attorney has an obligation to be candid about the law and to cite to adverse authority if it is from a controlling jurisdiction and directly on point.

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CRIMES FALSE PRETENSES

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False pretenses generally consists of: (i) obtaining title; (ii) to the property of another; (iii) by an intentional (or knowing) false statement of past or existing fact; (iv) with the intent to defraud the other. False pretenses did not exist at CL; Modern statutes distinguish between grand false pretenses (a felony) and petit false pretenses (a misdemeanor). Distinguishable from "Larceny by Trick" by WHAT is obtained. If only possession --> larceny by trick. If title is obtained --> false pretenses.

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CIV PRO PERSONAL JXN: Foreseeability

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It must be foreseeable that the ∆ could get sued in this forum. • Does the ∆ know or should know that its products could reach the forum state?

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PROFESSIONAL RESPONSIBILITY PR Essay CHECKLIST

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I. ATTORNEY'S DUTY TO THE CLIENT: a) The duty of LOYALTY b) The duty of CONFIDENTIALITY c) The duty of COMPETENCE d) The duty of FINANCIAL INTEGRITY (i.e., fees, client property) II. ATTORNEY'S DUTY TO 3RD PARTIES: a) The duty to OPPOSING PARTIES in litigation b) The duty to ACCEPT REPRESENTATION c) The special duty of PROSECUTORS III. ATTORNEY'S DUTY TO THE COURT: a) The duty of CANDOR b) The duty of HONESTY c) The duty to WITNESSES and JURORS IV. ATTORNEY'S DUTY TO THE PROFESSION: a) The duty to avoid UNAUTHORIZED PRACTICE OF LAW b) The duty to avoid false or misleading ADVERTISEMENTS c) The duty to not improperly SOLICIT clients

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CRIMES ROBBERY

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Robbery is a felony in all jxns and consists of: (i) a taking; (ii) of personal property of another; (iii) from the other's person or presence; (iv) by force or intimidation; (v) with the intent to permanently deprive him of it.

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CON LAW When does a state law violate the DORMANT COMMERCE CLAUSE? Exceptions?

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If a law burdens interstate commerce, it violates dormant commerce clause UNLESS that law is necessary to achieve an important government purpose. Helping in-staters at out-of-staters expense is NEVER an important government purpose State has to show the law is necessary: has to show there is no less discriminatory way to achieve the objective. EXCEPTION 1: Congressional approval EXCEPTION 2: the market participant exception. (A state or local government may prefer its own citizens in receiving benefits from government programs or in dealing w/ government-owned businesses)

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PROFESSIONAL RESPONSIBILITY CONFLICT OF INTEREST: Actual Conflict

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When two clients’ interests are in present and actual conflict, the attorney cannot continue to represent both parties.

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CRIMES BURGLARY (CL)

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CL burglary is: (i) a breaking; (ii) and entering; (iii) of the dwelling; (iv) of another; (v) at nighttime; (vi) with the intent of committing a felony therein.

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PROFESSIONAL RESPONSIBILITY CONFLICT OF INTEREST: Potential Conflict

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A lawyer may represent two clients in a civil litigation if their interests are only potentially in conflict, provided the lawyer reasonably believes that he can represent both clients effectively and obtains the consent of both clients after consultation.

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CONTRACTS Ks Essay Checklist

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"Armadillos From Texas Play Rap, Eating Tacos." A -- Applicable Law F -- Formation of Ks T -- Terms of the K P -- Performance R -- Remedies for Unexcused Nonperformance E -- Excuse of Nonperformance T -- Third-Party Problems

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CIV PRO PERSONAL JXN: Relatedness

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Relatedness between the contact and the π’s claim. Quality of D’s contact with the forum. Ask: Does the π’s claim arise from the ∆’s contact with the forum? --Where the claim is related to the ∆’s contact with the forum, it is called specific jurisdiction. --If the claim does not arise from the ∆’s contact with the forum, then jurisdiction is ONLY OK if the court has general personal jurisdiction. To have this, ∆ must have CONTINUOUS AND SYSTEMATIC TIES with the forum state. --Examples of systematic ties: domicile, incorporation, major facilities there, etc.

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CRIMES ARSON

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At CL, arson consists of: (i) the malicious; (ii) burning; (iii) of the dwelling; (iv) of another. Burning = blackening or charring of structure; mere blackening by smoke or discoloration by heat is not sufficient. Modernly, expanded to include things like exposions. Malice required.

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CIV PRO PERSONAL JXN: Convenience

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Convenience: ∆ may complain that the forum makes it tough to litigate because it is far from the ∆’s home and it may be tough to get ∆’s witnesses and evidence to the forum. Standard: the forum is OK unless it puts ∆ at a SEVERE DISADVANTAGE IN THE LITIGATION • Relative wealth of the parties is not relevant.

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CIV PRO PERSONAL JXN: State's Interest

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State's interest is often to provide a forum for its citizens. Ex: The forum state might have an interest in providing a courtroom for its people who are harmed by allegedly careless out-of-state manufacturers.

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CRIMES FELONY MURDER RULE (FMR)

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A killing during the course of a felony--even an accidental one--is murder. Malice is implied from the intent to commit the underlying felony. Under the CL, the felonies included are BARRK To convict a D of FM, the prosecution must prove that he committed the underlying felony. So, if he has a substantive defense to the underlying felony, he has a defense to FM. CAUSATION required. D's conduct must he the cause-in-fact of the result; i.e., the result would not have occurred BUT FOR the D's conduct. Year and a day rule (CL) Remember, Intervening acts break the chain of causation.

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CON LAW What is the SUPREMACY CLAUSE?

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Constitution, and laws and treaties made pursuant to it, are the supreme law of the land. (eg, Federal law WINS every time)

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CIV PRO PERSONAL JXN: Summary of Constitutional Test

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“My Parents Frequently Forgot to Read Children’s Stories” • Minimum Contacts o Purposeful Availment o Foreseeability • Fair Play & Substantial Justice o Relatedness of contact and claim o Convenience o State’s Interest

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CIV PRO The CLASS ACTION

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Representative(s) sues on behalf of class members. Must initially demonstrate ALL of these: (1) NUMEROSITY: too many class members for practicable joinder; (2) COMMONALITY: There are some question of law or fact in common to class; (3) TYPICALITY: Rep's claims/defenses typical of those of the class; and (4) REPRESENTATIVE IS ADEQUATE: Rep will fairly and adequately represent class.

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CON LAW RATIONAL BASIS TEST

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RATIONALLY RELATED to a LEGITIMATE government interest. (actual purpose need not be legitimate; must only be conceivable). Gov. usually wins. The law us usually valid unless it is ARBITRARY or IRRATIONAL. Challenger has the burden of proof.

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CON LAW INTERMEDIATE SCRUTINY

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SUBSTANTIALLY related to an IMPORTANT government interest. --Court looks to government's ACTUAL purpose. --Burden is on the government.

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CON LAW STRICT SCRUTINY

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Must be NECESSARY to achieve a COMPELLING government purpose. You must find that NO less restrictive alternative could be used to achieve the government purpose. --Court looks to government's ACTUAL purpose. --Burden is on the government.

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CON LAW FREEDOM OF ASSOCIATION

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Laws that prohibit or punish group membership must meet strict scrutiny. To punish membership in a group it must be proven that the person: (i) actively affiliated with the group; (ii) knowing of its illegal activities; and (iii) with the specific intent of furthering those illegal activities.

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CON LAW EPC: Proving a Discriminatory Classification

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For strict or intermediate scrutiny to be applied, there must be INTENT on the part of the government to discriminate. Intent may be shown by: (i) A law that is DISCRIMINATORY ON ITS FACE; (ii) A DISCRIMINATORY APPLICATION of a facially neutral law; or (iii) A DISCRIMINATORY MOTIVE behind the law. NOTE: The third is the most difficult to prove. A discriminatory EFFECT alone is not enough. The legislature's discriminatory motive must be shown (e.g., by evidence of a history of discrimination).

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CON LAW Restrictions on Speech in Limited Public Forums and Non-Public Forums

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Speech and assembly can be more broadly regulated in limited public forums (e.g., military bases and schools when classes are in session) and nonpublic forums. The Gov't can regulate speech in such a forum to reserve the forum for its intended use. Regulations are valid if they are: (i) VIEWPOINT NEUTRAL; and (ii) REASONABLY RELATED TO A LEGITIMATE government purpose (rational basis).

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BUSINESS ASSOCIATIONS Rule 10b-5 Elements

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1) FRAUDULENT CONDUCT: a) SCIENTER -- an intent to deceive; b) DECEPTION -- an intent to defraud by: (i) Lying (misrepresentation of a material fact or failure to disclose a material fact in breach of a fiduciary duty to disclose) or (ii) Insider Trading (misappropriator, tipper, or tippee) 3) In connection with the ACTUAL purchase or sale of securities; 4) the fraudulent conduct involved the use of some means of INTERSTATE COMMERCE (something as simple as the use of the telephone or mail will suffice); 5) with RELIANCE and 6) LOSS CAUSATION.

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CON LAW Speech: Validity for Prior Restraints

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To be valid, a system for prior restraint must provide the following procedural safeguards: (i) The standards must be NARROWLY DRAWN, REASONABLE, AND DEFINITE; (ii) Injunction must PROMPTLY be sought; and (iii) There must be PROMPT AND FINAL DETERMINATION of the validity of the restraint. Prior restraints are very rarely allowed. The government has the heavy burden of justifying the prior restraint by showing that some SPECIAL SOCIAL HARM will otherwise result.

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BUSINESS ASSOCIATIONS RULE 16(b)

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16(b) applies to BIG CORPORATIONS: Reporting corporation (1) listed on a national exchange or (2) with at least 500 shareholders AND $10m in assets); and Applies to BIG SHOT DEFENDANTS (Officer, director, or more than 10% shareholder. Provides that a ∆ (officer, directer, or more than 10% shareholder) may NEVER buy or sell stock within a single 6 month period (short-swing trading). Fraud is not required. All "profits" from such "short-swing trading" are recoverable by the corporation. If, within 6 months before or after any sale, there was a purchase at a lower price than the sale price, there is a profit.

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CON LAW The ESTABLISHMENT CLAUSE: The "LEMON Test"

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The Establishment Clause prohibits laws respecting the establishment of religion. If government action includes a preference for one religious sect over antother, it is INVALID unless it meets STRICT SCRUTINY. If government action does NOT involve sect preference, it is VALID under the Establishment Clause if: (SEX) 1) There must be a SECULAR purpose for the law; 2) The EFFECT must be neither to advance nor inhibit religion; and 3) There must not be EXCESSIVE entanglement with religion.

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BUSINESS ASSOCIATIONS Sarbanes-Oxley Act of 2002 (SOX)

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SOX provides for the creation of the Public Company Accounting Oversight Board to register public accounting firms that prepare audit reports for companies registered under the 1934 Act. The Board establishes rules for auditing, quality control, ethics, and independence relating to preparation of audit reports. Covers reporting corporations either (1) listed on a national exchange or (2) with at least 500 shareholders AND $10m in assets). CEO and CFO must CERTIFY that based on the officer's KNOWLEDGE, reports filed with the SEC do not contain falsehoods. Gen. Rule: No knowingly false filings and no benefits during falsehoods or blackout periods. Can be punishable by up to 25 years imprisonment.