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918 Cards in this Set
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- Back
- 3rd side (hint)
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When does Common Law govern contracts? |
When the contract does not involve the sale fo goods.
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Real estate, service contracts
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When does UCC Article 2 govern contracts?
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When the contract is primarily for the sale goods.
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Tangible, personal property
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Must a price be included in a valid offer?
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Common Law: Yes, price and description reqiured.|UCC: No.
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Under both the Common Law and UCC, an offer cannot be based on vague or ambiguous material terms.
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What is the main limitation on requirement contracts?
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Demand during one period cannot be unreasonably disproportionate to demands from preceding periods.
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Requirements contract/output contracts are not invalid for vagueness or ambiguity.
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When can an offer not be revoked?
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1. Acceptance;|2. Option;|3. UCC Firm Offer;|4. Reasonably foreseeable detrimental reliance;|5. Reasonable time after start of performance on a unilateral contract
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The last four categories are irrevocable offers.
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What are the three methods of rejecting an offer?
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1. Counteroffer;|2. Conditional acceptance; and|3. Additional terms
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The first two apply to all contracts; additional terms rule does not apply to contracts for sale of goods.
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On the bar exam, how can you differentiate counteroffers from mere bargaining?
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Counteroffers will be declaratory, bargaining will be interrogatory.
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Bargaining does not terminate an offer.
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How is a conditional acceptance recognized?
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Look for an acceptance, followed by "if," "only if," "so long as," "but," or "on condition that."
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A conditional acceptance always operates the same way as a counteroffer: it terminates the offer and becomes a new offer.
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What is the effect of additional terms under the UCC?
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As long as the response does not make the new terms a condition of acceptance, it is treated as a seasonal expression of acceptance and there is a contract.
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Whether the parties are merchants is irrelevant.
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How is start of performance treated regarding acceptance?
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Start of performance is acceptance of an offer to enter into a bilateral contract but is not acceptance of an offer to enter into a unilateral contract.
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Starting to perform is treated as an implied promise to perform and so there is a bilateral contract. Further, since start of performance is a promise to perform, it cannot constitute acceptance of a unilateral contract because a unilateral contract requires performance for acceptance, which means completion of performance.
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What is the mailbox rule?
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1. All commincations other than acceptance are effective only when received;|2. Acceptance is generally effective when mailed;|3. If a rejection is mailed before an acceptance is mailed, then the first to arrive is effective; and|4. The mailbox rule cannot be used to meet an option deadline.
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An acceptance is effective when mailed, unless a rejection has been sent first. Then the first to arrive is effective.
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How is the shipment of nonconforming goods treated regarding acceptance?
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Acceptance and breach.
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If there is an explanation, then there has been an accommodation, which is treated as a counteroffer and no breach.
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When will someone who lacks capacity be liable on the contract under quasi-contract?
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When the contract is for necessaries. However, since this exception is based on quasi-contract, the incapable person will only be required to pay as much as is equitable.
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Necessaries include such things as food, clothing, medical care, or shelter.
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What contracts are within the Statute of Frauds?
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1. Promises in consideration of marriage; |2. Promises by executors to pay an estate's obligation from his own funds; |3. Promises gauranteeing another's debt; |4. Contracts for which full performance cannot be completed within one year from date of contract; |5. Transfers of real estate interests more than a year;|6. Sale of goods $500 or more.
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1. Marriage;|2. Year;3.|Land;|4.Executor;|5. Gaurantees of suretyship;|6. Sales of goods $500 or more
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Other than a signed writing, how can the Statute of Frauds be satisfied in service contract?
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Full performance by either party.
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Part performance of a services contract does not satisfy the Statute of Frauds.
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What is the effect of part performance on a sale of goods contract?
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The general rule is that part performance of a contract for the sale of goods satisfies the Statute of Frauds, but only to the extent of the part performance.
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If the contract is for the sale of goods that are to be specially manufactured, then the Statute of Frauds is satisfied as soon as the seller makes a substantial beginning, which means that the seller has done enough work that it is clear that what she is working on is specially manufactured.
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For contracts that are under the UCC, how is the Statute of Frauds satisfied through a writing?
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1. The writing must indicate that there is a contract for the sale of goods and contain the quantity term; and|2. The writing must be signed by the person asserting the Statute of Frauds defense.
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There is an exception to the signing requirement: If both parties are merchants and the person who receives a signed writing with a quantity term fails to respond within ten days, then that merchant cannot claim there is no contract.
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When will a contract be unenforceable because of a misrepresentation?
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When one party made a false assertion of fact that induced the other to contract.
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No wrongdoing is required for misrepresentations.
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When will a contract be unenforceable because of non-disclosure?
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When the non-disclosure was wrongful.
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Usually requires some affirmative act.
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When may a court refuse to enforce a contract for unconscionability?
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1. Unfair surprise (procedural); and|2. Oppressive terms (substantive)
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Unconscionability is test at the time the agreement was made and allows the court to refuse to enforce all or part of the agreement.
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When may a court refuse to enforce a contract for ambiguity?
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1. Parties use a material term that is open to at least two reasonable interpretation;|2. Each party attaches a different meaning to the term; and|3. Neither party knows or has reason to know the term is open to at least two reasonable interpretations.
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If one party has reason to know that the material term is open to more than one reasonable interpretation, then there is a contract based on the understanding of the other party.
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When will a contract be unenforceable because of a mutual mistake?
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A mutual mistake will render a contract unenforceable if both parties are mistaken as to an assumption of fact which materially affects the agreed upon exchange.
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Mistake as to value is not sufficient
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When will a contract be unenforceable because of a unilateral mistake of material fact?
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Generally, courts have been reluctant to allow a party to avoid a contract for a mistake made by only one party.
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Look for situations in which the other party had reason to know of the mistake.
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What is the parol evidence rule?
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Extrinsic evidence of prior or contemporaneous agreement not admissible to prove inconsistent or additional terms in a fully-integrated written contract.
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A court may consider such terms for the limited purpose of determining whether there was a mistake in integration, i.e., a mistake in reducing the agreement to writing.||A court may also consider earlier statements for determing if there was a misrepresentation, fraud, or duress.
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How can a seller disclaim implied warranties?
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1. By using conspicuous language of disclaimer which mentions merchantability; or|2. Using language like "as is" or "with all faults."
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Express warranties cannot be disclaimed.
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What is the general test of whether a seller's limitation of warranties is effective?
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It is effective if it isn't unconscionable. It is prima facie unconscionable if breach of warranty on consumer goods causes personal injury.
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It is possible to limit remedies, even for express warranties.
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Under UCC, when may a buyer reject goods?
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If the seller does not meet the perfect tender standard, the buyer has the option to retain the goods and sue for damages, or reject all or any commercial unit and sue for damages (rejection is limited by cure, installment contract, and acceptance).
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Perfect tender only applies to the sale of goods, it means perfect goods and perfect delivery, and a less than perfect tender by the seller generally gives the buyer the option of rejecting the delivered goods.
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When does a seller have the right to cure under UCC?
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1. Seller has reasonable grounds to believe that imperfect tender would be acceptable; or|2. The time for performance has not yet expired.
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The reasonable grounds acception applies even after the performance date has passed.
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What is an effective acceptance of goods?
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1. Express acceptance;|2. Implied acceptance when buyer retains the goods without objection after an opportunity for inspection.
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Payment without opportunity for inspection is not acceptance.
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When is specific performance an appropriate remedy for breach?
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When damages would be inadequate, as in the case of real estate or unique goods, and judical administration of the injunction would not be overly burdensome.
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Specific performance is an equitable remedy, so look first for an adequate remedy at law or unclean hands or other parties' equities.
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When does a seller have the right to reclaim delivered goods?
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1. Buyer must have been insolvent at the time that it received the goods;|2. The seller demands return of goods within 10 days of receipt; and|3. The buyer still has goods at time of demand.
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The 10 day rule becomes a reaonable time rule if before delivery there had been an express representation of solvency by the buyer.
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What duty does the non-breaking party have regarding damages?
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Duty to mitigate: No recovery for damages that could have been avoided without undue burden on non-breaching party.
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Burdens of pleading and proof on breaching party.
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What burden of proof does non-breaching party have regarding damages?
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Must prove damages with reasonable certainty.
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Hard to recover damages if new business or new business activity. Here, consider damages based on reliance instead of expectation interest.
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When is a liquidated damages provision enforceable?
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1. Damages were difficulat to forecast at time contract was made; and|2. Provision is a reasonable forecast.
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Liquidated damages provision cannot constitute a penalty. Fixed numbers are presumptively invalid as a penalty.
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Under Common Law, what are the four rules regarding excuse due to other party's improper performance?
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1. Damages can be recovered for any breach;|2. Only a material breach by one party excuses the other party from performing;|3. Whether a breach is material is a question of fact; and|4. If there is substantial performance, then the breach is not matieral (if the breach is material, then the performance was not substantial).
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Divisible contract exception: In a divisible contract, there can be a contract law recovery for substantial performance of a divisible part even though there has been a material breach of the entire contract (look at whether price is stated as a lump sum or on a per performance basis).
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What is the general rule and the exception to excuse from performance due to failure of an express condition.
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Express conditions are normally enforced srictly, but when performance is subject to a party's "approval," the performance will be demmed approved if a reasonable person would approve (excluding matters of personal taste).
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An express condition is a mutually agreed upon promise modifier. Most contracts on the bar are not subject to express conditions (and don't confuse this with a counteroffer).
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When can anticipatory repudiation be retracted?
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When the other party has not materially changed his position.
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Performance is then reimposed, but can be delayed until the non-repudiating party receives adequate assurance that the repudiating party will perform.
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What is the difference between accord and satisfaction and modification?
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Accord and satisfaction allows a party to satisfy his obligation with a different performance; modification is an agreement by the parties to an existing obligation to accept a differetn agreement in satsifaction of the existing obligation
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The distinction is different performance vs. different agreement.
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When is a party's performance excused due to impossiblity because of someone's death?
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Only when that person was a "special" part of the contract.
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Generally, death does not make a party's contract obligations disappear.
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How does a third party beneficiary's interest in a contract vest?
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1. Knowledge of the contract; and|2. Reliance on or assent as requested to the contract.
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If so, third party's rights have vested and the contract cannot be cancelled or modified without her consent unless the contract otherwise provides.
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What's important to look for when a contract limits assignments?
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Whether the contract prohibits or, alternatively, invalidates assignments.
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Courts favor assignability of contract rights and so they are reluctant to read contract language as preventing an assignment.
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Even when not mentioned in the contract, when how does Common Law limit assignments?
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Even if a contract does not limit the right to assign, Common Law bars an assignment that substantially changes the duties of the obligor.
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Assignment of right to payment is never a substantial change.||Assignment of right to contract performance other than right to payment is usually a substantial change.
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What implied warranties accompany an assignment for consideration?
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Assignor warrants:1.|The right assigned actually exists;|2. The right assigned is not subject to any defenses by the obligor; and|3. The assignor will do nothing to impair the value of the assignment.
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Assignor, however, does not warrant what the obligo will do.
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What is kidnapping?
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Unlawful confinement of a person that involves either: 1) some movement of the victim, or 2) concealment of the victim in a “secret” place.NY: Abducting someone (2 degrees)
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What mnemonic should you use to help you remember contracts analysis?
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Armadillos From Texas Play Rap, Eating Tacos = 1. applicable law; |2. formation; |3. terms; |4. performance; |5. remedies; |6. excuse for nonperformance, 7. third-party problems.
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What is a bilateral contract?
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One that is open as to method of acceptance.
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What is a unilateral contract?
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one that expressly requires performance as the only possible method of acceptance.
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When does Common Law govern contracts?
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When the contract does not involve the sale fo goods.
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When does UCC Article 2 govern contracts?
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When the contract is primarily for the sale goods.
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What are goods for UCC purposes?
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Movable chattel
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When a contract involves both sale of goods and other provisions, what law applies?
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The law governing the more important part of the contract, unless the contract itself divides payment between goods and non-goods. Then, UUC 2 applies to goods part and Common Law to other parts.
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What is the basic definition of a contract?
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A legally enforceable agreement
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Based on the basic definition of a contract, what should you look for in determining whether whether a contract exists?
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Look first for an agreement. Then, second, determine whether the agreement is legally enforceable.
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In looking for an agreement, what general analysis should be followed?
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1. Was there an offer?|2. Has the offer terminated?|3. If not, has there been acceptance?
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What is the general test for whether an offer has been made?
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Manifestation of commitment: Based on words or conduct, would a reasonable person in the position of the offeree believe that his assent creates a contract?
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What must the content of an offer generally contain?
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An offer does not have to contain all meterial terms; there must simply be enough, between the offer and acceptance, to determine the existence of a contract and a breach.
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Must a price be included in a valid offer?
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Common Law: Yes, price and description reqiured.|UCC: No.
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What is the main limitation on requirement contracts?
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Demand during one period cannot be unreasonably disproportionate to demands from preceding periods.
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When can an advertisement be an offer?
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Generally, an advertisement is not an offer.||However, an advertisement can be an offer if it specifies quantity and expressly indicates who can accept, or if it is in the nature of a reward.
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What are the four methods of terminating an offer?
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1. Lapse of time;|2. Revocation by offeror;|3. Rejection/Counteroffer by offeree;|4. Death of a party prior to acceptance
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Under what circumstances does a contract terminate due to lapse of time?
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Offer expires after a reasonable amount of time or at the time stated.
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How does an offeror revoke an offer?
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1. Unambiguous statement by offeror to offeree of unwillingness or inability to contract; or|2. Unambiguous conduct by offeror indicating unwillingness or inability to contract that the offeree is aware of.
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When does a revocation of an offer sent through the mail become effective?
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When it is received.
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When can an offer not be revoked?
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1. Acceptance;|2. Option;|3. UCC Firm Offer;|4. Reasonably foreseeable detrimental reliance;|5. Reasonable time after start of performance on a unilateral contract
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How is an option created?
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1. Offer;|2. Promise to not revoke or to keep the offer open; and|3. This promise is supported by consideration.
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What is the UCC Firm Offer Rule?
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An offer cannot be revoked for up to three months if:|1. Offer to buy or sells goods;|2. Signed, written promise to keep the offer open; and|3. Party is a merchant.
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What are the three methods of rejecting an offer?
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1. Counteroffer;|2. Conditional acceptance; and|3. Additional terms
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On the bar exam, how can you differentiate counteroffers from mere bargaining?
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Counteroffers will be declaratory, bargaining will be interrogatory.
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How is a conditional acceptance recognized?
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Look for an acceptance, followed by "if," "only if," "so long as," "but," or "on condition that."
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What is the mirror image rule?
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Under Common Law, a response to an offer that adds new terms is treated like a counteroffer rather than an acceptance.
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What is the effect of additional terms under the UCC?
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As long as the response does not make the new terms a condition of acceptance, it is treated as a seasonal expression of acceptance and there is a contract.
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If there is a seasonal expression of acceptance, are the additional terms part of the contract?
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If at least one party is not a merchant, the additional term is merely a proposal that is to be separetly accepted or rejected.||If both parties are merchants, the general rule is that the additional term is a part of the contract.
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What are the exceptions to the rule that additional terms are part of a contract between merchants?
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1. The additional term materially changes the offer; or|2. The offeror objects to the change.
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What is the general rule about death terminating an offer?
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Death or incapacity of either party after the offer but before acceptance terminates the offer.
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What is the exception to the rule that death terminates an offer?
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Irrevocable offers.
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How is an improper verbal response (i.e., counteroffer or conditional acceptance) followed by later conduct indicating a contract treated regarding acceptance?
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Common Law: The conditional acceptance is treated as a counteroffer and the later conduct is treated as acceptance of that counteroffer. Thus, all the terms of the conditional acceptance are part of the contract.||UCC: The contract is based solely on the conduct. The conditional acceptance is not treated as a counteroffer and is not part of the contract. The terms appearing only in the conditional acceptance are not part of the contract.
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How is full performance treated regarding acceptance?
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Full performance is acceptance, but there may be an issue as to notice to the offeror.||Notice turns on:|1. What the offer requires; or|2. Whether the offeree has reason to believe that offeror will not learn of the acceptance.
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How is start of performance treated regarding acceptance?
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Start of performance is acceptance of an offer to enter into a bilateral contract but is not acceptance of an offer to enter into a unilateral contract.
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How is a promise to perform treated regarding acceptance?
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A promise to perform is acceptance for bilateral contracts, unless the offer states otherwise.
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What is the mailbox rule?
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1. All commincations other than acceptance are effective only when received;|2. Acceptance is generally effective when mailed;|3. If a rejection is mailed before an acceptance is mailed, then the first to arrive is effective; and|4. The mailbox rule cannot be used to meet an option deadline.
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How is the shipment of nonconforming goods treated regarding acceptance?
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Acceptance and breach.
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Who may accept an offer?
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A person who knows about the offer who is the person to whom it was made.
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Can offers be assigned by the offeree?
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No, unless there's an option contract that does not restrict the right to assign.
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When is silence effective acceptance?
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When custom indicates that silence is effective acceptance or offeree agrees that silence is effective acceptance by his words or conduct.
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What are the eleven legal reasons for not enforcing an agreement?
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1. Lack of consideration or a consideration substitute;|2. Lack of capacity;|3. Statute of Frauds;|4. Illegality;|5. Public policy;|6. Misrepresentations;|7. Nondisclosure;|8. Duress;|9. Unconscionability;|10. Ambiguity; and|11. Mistake.
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What is consideration?
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A bargained-for legal detriment.
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What four forms does consideration gernally take?
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1. Doing something not legally obligated to do;|2. Not doing something legally entitled to do;|3. Promise to perform; and|Promise to forbear.
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When is a contractual promise illusory and, therefore, innefective as consideration?
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When the promisor alone fully controls whether she will actually be require to perform.
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When is past consideration sufficient to form a contract?
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When the consideration was expressly requested by promisor and promisee knew that payment for performance was expected.
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Under Common Law, when can doing something you already have a legal duty to do serve as consideration?
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Generally, doing what you are already legally obligated to do is not new consideration for a new promise to pay more, unless:|1. Addition to or change in performance; |2. Unforeseen difficulty so severe as to excuse performance; and|3. Third party promise to pay.
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Under the UCC, can a preexisting legal duty serve as effective consideration?
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Yes. Article 2 does not have a pre-existing legal duty rule. New consideration is not required to modify sale of goods contract. Good faith is the test for changes in an existing slae of goods contract.
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When may partial payment serve as cosideration for release of a debt?
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When payment is not yet due or is disputed.
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When is a promise legally enforceable even though there is no consideration (what are the types of consideration substitutes)?
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1. Written promise to satify an obligation for which there is a legal defense; |2. Promissory estoppel
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What are the elements of prmissory estoppel?
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1. Promise;|2. Reliance that is reasonable, detrimental, and foreseeable; and|3. Enforcement necessary to avoid injustice.
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Who lacks capacity to contract?
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1. Minors (under 18);|2. Mental incompetents (lack ability to understand agreement); and|3. Intoxicated persons (if the other party has reason to know of intoxication).
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What is the risk of entering into a contract with someone who lacks capacity?
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The incapable party may disaffirm the contract.
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When may a person who entered a contract while incapable no longer disaffirm?
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When they expressly or impliedly affirm the contract after obtaining capacity (ratification after obtaining capacity).
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When will someone who lacks capacity be liable on the contract under quasi-contract?
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When the contract is for necessaries. However, since this exception is based on quasi-contract, the incapable person will only be required to pay as much as is equitable.
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What contracts are within the Statute of Frauds?
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1. Promises in consideration of marriage; |2. Promises by executors to pay an estate's obligation from his own funds; |3. Promises gauranteeing another's debt; |4. Contracts for which full performance cannot be completed within one year from date of contract; |5. Transfers of real estate interests more than a year;|6. Sale of goods $500 or more.
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When does the Statute of Frauds not apply to promises gauranteeing the debts of another?
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When the main purpose for the guarantee was to benefit the promisor.
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Does a contract for the duration of someone's life fall under the Statute of Frauds?
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No, the person could die within a year.
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How is the Statute of Frauds generally satisfied?
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Performance or a writing.
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Other than a signed writing, how can the Statute of Frauds be satisfied in service contract?
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Full performance by either party.
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What is the effect of part performance on a sale of goods contract?
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The general rule is that part performance of a contract for the sale of goods satisfies the Statute of Frauds, but only to the extent of the part performance.
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What is the effect of part performance on a contract to transfer real estate?
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Part performance can satisfy the Statute of Frauds if the buyer has done any two of the following three:|1.Payment;|2. Improvements; or|3. Possession
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For contracts not under the UCC, how is the Statute of Frauds satisfied through a writing?
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1. Look to see if all material terms are included: who and what; and|2. The writing must be signed by the person asserting the Statute of Frauds defense.
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For contracts that are under the UCC, how is the Statute of Frauds satisfied through a writing?
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1. The writing must indicate that there is a contract for the sale of goods and contain the quantity term; and|2. The writing must be signed by the person asserting the Statute of Frauds defense.
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What is the effect of a judicial admission of the existence of a contract on a Statute of Frauds defense?
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If the defendant asserting a Statute of Frauds defense admits in a pleading or testimony that he had entered into an agreement with the plaintiff, the purpose of the Statute of Frauds, is fulfilled and there is no defense.
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What is the equal dignity rule?
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Authorization to enter into a contract for someone else must be in writing only if the contract to be signed is within the Statute of Frauds.
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When must a contract modification be in writing?
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If the deeal with the alleged change would be within the Statute of Frauds, then the alleged modiciation agreement must be in writing.
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Are contracts requiring written modification of a contract effective?
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Common Law: Contract provisions requiring written modifications are not effective.||UCC: Contract provisions requiring written modifications are effective unless waived.
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Is a contract with illegal subject matter enforceable?
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If the subject matter is illegal, the agreement is not enforceable?
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Is a contract with illegal purpose enforceable?
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If the subject matter is legal, but the purpose is illegal, the agreement is enforceable only by the person who did not know of the illegal purpose.
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When may a court refuse to enforce an agreement on public policy grounds?
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If, for example, there is an exculpatory agreement that exempts intentional or reckless conduct from liability or there is a convenant not to compete without a reasonable need or reasonable time and place limits.
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When will a contract be unenforceable because of a misrepresentation?
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When one party made a false assertion of fact that induced the other to contract.
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When will a contract be unenforceable because of non-disclosure?
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When the non-disclosure was wrongful.
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When will a contract be unenforceable because of duress?
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1. When a party is induced to contract by improper threat; and|2. The vulnerable party is taken advantage of because he had no reasonable alternative.
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When may a court refuse to enforce a contract for unconscionability?
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1. Unfair surprise (procedural); and|2. Oppressive terms (substantive)
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When may a court refuse to enforce a contract for ambiguity?
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1. Parties use a material term that is open to at least two reasonable interpretation;|2. Each party attaches a different meaning to the term; and|3. Neither party knows or has reason to know the term is open to at least two reasonable interpretations.
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When will a contract be unenforceable because of a mutual mistake?
|
A mutual mistake will render a contract unenforceable if both parties are mistaken as to an assumption of fact which materially affects the agreed upon exchange.
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When will a contract be unenforceable because of a unilateral mistake of material fact?
|
Generally, courts have been reluctant to allow a party to avoid a contract for a mistake made by only one party.
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What is the parol evidence rule?
|
Extrinsic evidence of prior or contemporaneous agreement not admissible to prove inconsistent or additional terms in a fully-integrated written contract.
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What evidence does the court use to explain contract terms or fill gaps, and what priority does it give to each?
|
1. Course of performance (same people, same contract);|2. Course of dealing (same people, different but similar contract);|3. Custom and usage (different but similar people, different but similar contract
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Under the UCC, if goods are to be delivered by a common carrier under a shipment contract, what is the obligation of the seller?
|
The seller completes his delivery obligation when he|1. Gets the goods to a common carrier;|2. Makes reasonable arrangements for delivery; and|3. Notifies the buyer.
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Under the UCC, if goods are to be delivered by a common carrier under a destination contract, what is the obligation of the seller?
|
The seller completes his delivery obligation when the goods arrive where the buyer is.
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How can you identify a shipment contract versus a delivery contract?
|
Most contracts with delivery obligations are shipment contracts (FOB [seller's/good's city]); FOB [any other city] is a destination contract).
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When does a risk of loss issue arise?
|
1. After contract has been formed and before buyer has received goods, the goods are damaged through no fault of either party.
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Who bears the risk of loss?
|
1. Agreement.|2. The breaching party, even if breach is unrelated to loss.|3. If delivery by common carrier other than seller, risk of loss shifts from seller to buyer at the time that the seller completes its delivery obligation.|4. If no agreement, no breach, no delivery by carrier, and seller is a merchant, risk of loss shifts from the merchant-seller to the buyer on the buyer's receipt of the goods (risk of loss shifts from a non-merchant seller when he tenders the goods).
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When does an express warranty exist?
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When seller has made a promise, description, or other factual assertion. (Not "sales talk.")
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When does an implied warranty of merchantability exist and what is warranted?
|
When seller deals of goods in the kind, there's an implied warranty that the goods are fit for the ordinary purpose for which such goods are used.
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When does an implied warranty of fitness for a particular purpose exist?
|
When buyer relies on selle to select suitable goods for a particular purpose and seller has a reason to know of that purpose.
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How can a seller disclaim implied warranties?
|
1. By using conspicuous language of disclaimer which mentions merchantability; or|2. Using language like "as is" or "with all faults."
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What is the general test of whether a seller's limitation of warranties is effective?
|
It is effective if it isn't unconscionable. It is prima facie unconscionable if breach of warranty on consumer goods causes personal injury.
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Under Common Law, when is a party's performance adequate?
|
If one party substanitally performs then the other party must pay or otherwise perform.
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Under UCC, when may a buyer reject goods?
|
If the seller does not meet the perfect tender standard, the buyer has the option to retain the goods and sue for damages, or reject all or any commercial unit and sue for damages (rejection is limited by cure, installment contract, and acceptance).
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When does a seller have the right to cure under UCC?
|
1. Seller has reasonable grounds to believe that imperfect tender would be acceptable; or|2. The time for performance has not yet expired.
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What is required for an installment contract?
|
1. Delivery of the goods in separate lots;|2. The separate lots are to be separately accepted.
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When does a buyer have the right to reject an installment?
|
Only where there is a substanital impairment in that installment that can't be cured.
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What is an effective acceptance of goods?
|
1. Express acceptance;|2. Implied acceptance when buyer retains the goods without objection after an opportunity for inspection.
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When can a buyer of goods revoke acceptance?
|
1. Nonconformity substantially impairs the value of the goods;|2. Excusable ignorance of grounds for revocation or reasonable reliance on seller's assurance of satisfaction; and|3. Revocation within a reasonable time after discovery of nonconformity.
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What other requirements are there for rejection and revocation?
|
1. Seasonably notify seller;|2. Hold goods for seller; and|3. Follow reasonable seller instructions.
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What are the three things to remember about payment?
|
1. Open price term means reasonable price at time of delivery;|2. Price to be fixed by buyer or seller means that the price must be so fixed in good faith; and|3. Price payable in goods means that each party is seller of goods it provides.
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When is specific performance an appropriate remedy for breach?
|
When damages would be inadequate, as in the case of real estate or unique goods, and judical administration of the injunction would not be overly burdensome.
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Is specific performance available for personal service contracts?
|
No specific performance, but possible injunctive relief.
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When might the courts reform a contract?
|
1. when there was a mistake in the writing of an agreement (such as a clerical error), or |2. there was fraudulent misrepresentation as tow hat was included in an agreement.
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When does a seller have the right to reclaim delivered goods?
|
1. Buyer must have been insolvent at the time that it received the goods;|2. The seller demands return of goods within 10 days of receipt; and|3. The buyer still has goods at time of demand.
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What is the risk of entrusting goods to a seller?
|
If owner leaves goods with seller of like kind and that seller wrongfully sells the goods, a good faith purchaser for value gains superior rights to the property.
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What measure of damages is the non-breaching party normally entitled to?
|
Expectation damages: Put non-breaching party whaere it would have been if contract had been performed.
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Explain damages based on reliance interest?
|
Puts non-breaching party in the position it was in before the contract (as if the contract never happened).
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Explain damages based on restitution interest?
|
Prevents unjust enrichment to breaching party.
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Appropriate damages when seller breaches and buyer keeps the goods?
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FMV if goods were perfect - FMV as delivered.
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Appropriate damages where seller breaches and seller keeps the goods.
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Market price at time of discovery of breach - contract price; or|Replacement price - contract price.
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Appropriate damages where buyer breaches and buyer has the goods.
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Contract price.
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Appropriate damages where buyer breaches, seller has the goods.
|
Contract price - market price at time and place of delivery; or|Contract price - resale price;|In some cases, add on provable lost profits.
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What are incidental damages?
|
Costs incurred in dealing with the breach.
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When are incidental damages recoverable?
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Always
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What are consequential damages?
|
Damages arising from non-breaching party's special circumstances.
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When are consequential damages recoverable?
|
When breaching party had reason to know of the special circumstances at the time of the contract.
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What duty does the non-breaking party have regarding damages?
|
Duty to mitigate: No recovery for damages that could have been avoided without undue burden on non-breaching party.
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What burden of proof does non-breaching party have regarding damages?
|
Must prove damages with reasonable certainty.
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When is a liquidated damages provision enforceable?
|
1. Damages were difficulat to forecast at time contract was made; and|2. Provision is a reasonable forecast.
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When will limitations on remedies be unenforceable?
|
When unconscionable at time of contract.
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Under Common Law, what are the four rules regarding excuse due to other party's improper performance?
|
1. Damages can be recovered for any breach;|2. Only a material breach by one party excuses the other party from performing;|3. Whether a breach is material is a question of fact; and|4. If there is substantial performance, then the breach is not matieral (if the breach is material, then the performance was not substantial).
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Generally, when will a party's performance be excused under the UCC?
|
1. The other party's tender was not perfect; or|2. Something happened after formation that excuses nonperformance.
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What is the general rule and the exception to excuse from performance due to failure of an express condition.
|
Express conditions are normally enforced srictly, but when performance is subject to a party's "approval," the performance will be demmed approved if a reasonable person would approve (excluding matters of personal taste).
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How can failure of an express condition be excused, requiring the other party to perform?
|
1. Estoppel: Party gives up the condition before performance by the other party;|2. Waiver: Party gives up condition after the other party has performed;|3. Prevention: The party protected by the express condition hinders or prevents the occurrence of the express condition; and|4. Avoidance of forfeiture: Court excuses the non-occurrence of the express condition to avoid excessive harm to the party not protected by the express condition.
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When is failure to perform excused by the other party's anticipatory repudiation?
|
Prior to the time that performance is due, the repudiating party makes an unambiguous statement or engages in conduct indicating that the repudiating party will not perform.
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What other effect does anticipatory repudiation have aside from excusing performance?
|
Allows an immediate action for damages.
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When can anticipatory repudiation be retracted?
|
When the other party has not materially changed his position.
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When can a contract be rescinded?
|
When neither party has fully performed.
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What is accord and satisfaction?
|
Parties to an existing contract agree to accept a different performance in satisfaction of the existing obligation.
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How is an accord satisfied?
|
By the different performance.
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What happens if an accord is not satisfied?
|
The other party may sue for the original obligtion or the accord.
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What is the difference between accord and satisfaction and modification?
|
Accord and satisfaction allows a party to satisfy his obligation with a different performance; modification is an agreement by the parties to an existing obligation to accept a differetn agreement in satsifaction of the existing obligation
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What is a novation?
|
An agreement by both parties to the original contract to substitute an original party with a new third party. Novation excuses the person replaced from any liability for non-performance.
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What is delegation?
|
A unilateral decision by one party to have a third party perform his obligation under the contract. Delegation does not excuse the person replaced from liability for non-performance.
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When is performance excused due to imposibility, impracticability, or frustration of purpose?
|
After the contract was formed but before performance, some unforeseen event makes performance impossible, commercially impracticable, or frustrates the original purpose for entering into the contract.
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When is a party's performance excused due to impossiblity because of someone's death?
|
Only when that person was a "special" part of the contract.
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When does a third party beneficiary have the right to sue to enfoce a contract?
|
1. the third party was intended to be a beneficiary of the contract, and |2. that party's interest in the contract has vested.
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What is a third party beneficiary?
|
1. Not a party to the contract;|2. Able to enforce contract others made for her benefit
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Who is the promisor?
|
The person who is making the promise that benefits the third party.
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Who is the promisee?
|
The person who obtains the promise that benefits the third party.
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How does a third party beneficiary's interest in a contract vest?
|
1. Knowledge of the contract; and|2. Reliance on or assent as requested to the contract.
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What defenses are available on a third party beneficiary contract?
|
If the beneficiary sues the promisor, the promisor can assert any defense he would have had against the promisee.
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Who can sue whom on a third party contract?
|
1. Beneficiary can recover from promisor;|2. Promisee can recover from promisor; and|3. Beneficiary can recover from promisee if beneficiary is a creditor on a pre-existing debt.
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What is an assignment?
|
A transfer of rights under a contract in two separate steps:|1. Contract between two parties; and|2. One of the parties later transferes rights under that contract to a third party.
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|
What's important to look for when a contract limits assignments?
|
Whether the contract prohibits or, alternatively, invalidates assignments.
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What is the effect of a prohibition on assignment?
|
Language of prohibition takes away the right to assign, but not the power to assign. This means that the assignor is liable for breach of contract, but an assignee who does not know of the prohibition can still enforce the assignment.
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What is the effect of an invalidation on assignment?
|
Language of invalidation takes away both the right to assign and the power to assign so that there is a breach by the assignor and no rights in the assignee.
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|
Even when not mentioned in the contract, when how does Common Law limit assignments?
|
Even if a contract does not limit the right to assign, Common Law bars an assignment that substantially changes the duties of the obligor.
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|
May assignee sue obligor for performance?
|
Yes, however, performance by obligor to assignor is still effective unless obligor knows of the assignment.
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|
Is consideration required for an assignment?
|
Generally, no. But gratuitous assignments may be revoked.
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|
What implied warranties accompany an assignment for consideration?
|
Assignor warrants:1.|The right assigned actually exists;|2. The right assigned is not subject to any defenses by the obligor; and|3. The assignor will do nothing to impair the value of the assignment.
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|
What is the general rule for priority where there have been multiple gratuitous assignments?
|
Last assignee wins; since gratuitous assignments can be revoked, a later gift assignment revokes an earlier gift assignment.
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What is the exception to the general rule that the last gratuitous assignment takes priority?
|
A gratuitous assignment is not revocable if:|1. It is the subject matter of a writing delivered to the assignee;|2. The assignee has received some indicia of ownership; or|3.The assignee has relied on the assignemnt in a way that is reasonable, foreseeable, and detrimental.
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|
What is the general rule for priority where there have been multiple assignments for consideration?
|
First assignee wins.
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|
What is the exception to the general rule that the first assignee for consideration takes priority?
|
A subsequent assignee for consideration takes priority over an earlier assignee for value only if he both:|1. Does not know of the earlier assignment; and|2. Is the first to obtain payment, a judgment, a novation, or indicia of ownership.
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|
May an assignor for consideration recover from an obligor?
|
No.
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|
What defenses are available to an olbigor again an assignee?
|
The defenses the obligor would have against assignor.
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|
What are the limitations on delegation?
|
Generally, contractual duties are delegable unless either:1. Contract prohibits delegations or prohibits assignments;|2. Contract calls for very special skills; or|3. Person to perform contract has a very special reputation.
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|
What if, after delegation, the third party delegatee does not perform?
|
1. Delegating party always remains liable.|2. Delegatee liable only if she receives consideration from delegating party.
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|
When does Common Law govern contracts?
|
When the contract does not involve the sale fo goods.
|
Real estate, service contracts
|
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|
When does UCC Article 2 govern contracts?
|
When the contract is primarily for the sale goods.
|
Tangible, personal property
|
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|
Must a price be included in a valid offer?
|
Common Law: Yes, price and description reqiured.|UCC: No.
|
Under both the Common Law and UCC, an offer cannot be based on vague or ambiguous material terms.
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|
|
What is the main limitation on requirement contracts?
|
Demand during one period cannot be unreasonably disproportionate to demands from preceding periods.
|
Requirements contract/output contracts are not invalid for vagueness or ambiguity.
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|
When can an offer not be revoked?
|
1. Acceptance;|2. Option;|3. UCC Firm Offer;|4. Reasonably foreseeable detrimental reliance;|5. Reasonable time after start of performance on a unilateral contract
|
The last four categories are irrevocable offers.
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|
What are the three methods of rejecting an offer?
|
1. Counteroffer;|2. Conditional acceptance; and|3. Additional terms
|
The first two apply to all contracts; additional terms rule does not apply to contracts for sale of goods.
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|
On the bar exam, how can you differentiate counteroffers from mere bargaining?
|
Counteroffers will be declaratory, bargaining will be interrogatory.
|
Bargaining does not terminate an offer.
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|
How is a conditional acceptance recognized?
|
Look for an acceptance, followed by "if," "only if," "so long as," "but," or "on condition that."
|
A conditional acceptance always operates the same way as a counteroffer: it terminates the offer and becomes a new offer.
|
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|
What is the effect of additional terms under the UCC?
|
As long as the response does not make the new terms a condition of acceptance, it is treated as a seasonal expression of acceptance and there is a contract.
|
Whether the parties are merchants is irrelevant.
|
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|
How is start of performance treated regarding acceptance?
|
Start of performance is acceptance of an offer to enter into a bilateral contract but is not acceptance of an offer to enter into a unilateral contract.
|
Starting to perform is treated as an implied promise to perform and so there is a bilateral contract. Further, since start of performance is a promise to perform, it cannot constitute acceptance of a unilateral contract because a unilateral contract requires performance for acceptance, which means completion of performance.
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|
|
What is the mailbox rule?
|
1. All commincations other than acceptance are effective only when received;|2. Acceptance is generally effective when mailed;|3. If a rejection is mailed before an acceptance is mailed, then the first to arrive is effective; and|4. The mailbox rule cannot be used to meet an option deadline.
|
An acceptance is effective when mailed, unless a rejection has been sent first. Then the first to arrive is effective.
|
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|
How is the shipment of nonconforming goods treated regarding acceptance?
|
Acceptance and breach.
|
If there is an explanation, then there has been an accommodation, which is treated as a counteroffer and no breach.
|
|
|
When will someone who lacks capacity be liable on the contract under quasi-contract?
|
When the contract is for necessaries. However, since this exception is based on quasi-contract, the incapable person will only be required to pay as much as is equitable.
|
Necessaries include such things as food, clothing, medical care, or shelter.
|
|
|
What contracts are within the Statute of Frauds?
|
1. Promises in consideration of marriage; |2. Promises by executors to pay an estate's obligation from his own funds; |3. Promises gauranteeing another's debt; |4. Contracts for which full performance cannot be completed within one year from date of contract; |5. Transfers of real estate interests more than a year;|6. Sale of goods $500 or more.
|
1. Marriage;|2. Year;3.|Land;|4.Executor;|5. Gaurantees of suretyship;|6. Sales of goods $500 or more
|
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|
Other than a signed writing, how can the Statute of Frauds be satisfied in service contract?
|
Full performance by either party.
|
Part performance of a services contract does not satisfy the Statute of Frauds.
|
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|
What is the effect of part performance on a sale of goods contract?
|
The general rule is that part performance of a contract for the sale of goods satisfies the Statute of Frauds, but only to the extent of the part performance.
|
If the contract is for the sale of goods that are to be specially manufactured, then the Statute of Frauds is satisfied as soon as the seller makes a substantial beginning, which means that the seller has done enough work that it is clear that what she is working on is specially manufactured.
|
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|
For contracts that are under the UCC, how is the Statute of Frauds satisfied through a writing?
|
1. The writing must indicate that there is a contract for the sale of goods and contain the quantity term; and|2. The writing must be signed by the person asserting the Statute of Frauds defense.
|
There is an exception to the signing requirement: If both parties are merchants and the person who receives a signed writing with a quantity term fails to respond within ten days, then that merchant cannot claim there is no contract.
|
|
|
When will a contract be unenforceable because of a misrepresentation?
|
When one party made a false assertion of fact that induced the other to contract.
|
No wrongdoing is required for misrepresentations.
|
|
|
When will a contract be unenforceable because of non-disclosure?
|
When the non-disclosure was wrongful.
|
Usually requires some affirmative act.
|
|
|
When may a court refuse to enforce a contract for unconscionability?
|
1. Unfair surprise (procedural); and|2. Oppressive terms (substantive)
|
Unconscionability is test at the time the agreement was made and allows the court to refuse to enforce all or part of the agreement.
|
|
|
When may a court refuse to enforce a contract for ambiguity?
|
1. Parties use a material term that is open to at least two reasonable interpretation;|2. Each party attaches a different meaning to the term; and|3. Neither party knows or has reason to know the term is open to at least two reasonable interpretations.
|
If one party has reason to know that the material term is open to more than one reasonable interpretation, then there is a contract based on the understanding of the other party.
|
|
|
When will a contract be unenforceable because of a mutual mistake?
|
A mutual mistake will render a contract unenforceable if both parties are mistaken as to an assumption of fact which materially affects the agreed upon exchange.
|
Mistake as to value is not sufficient
|
|
|
When will a contract be unenforceable because of a unilateral mistake of material fact?
|
Generally, courts have been reluctant to allow a party to avoid a contract for a mistake made by only one party.
|
Look for situations in which the other party had reason to know of the mistake.
|
|
|
What is the parol evidence rule?
|
Extrinsic evidence of prior or contemporaneous agreement not admissible to prove inconsistent or additional terms in a fully-integrated written contract.
|
A court may consider such terms for the limited purpose of determining whether there was a mistake in integration, i.e., a mistake in reducing the agreement to writing.||A court may also consider earlier statements for determing if there was a misrepresentation, fraud, or duress.
|
|
|
How can a seller disclaim implied warranties?
|
1. By using conspicuous language of disclaimer which mentions merchantability; or|2. Using language like "as is" or "with all faults."
|
Express warranties cannot be disclaimed.
|
|
|
What is the general test of whether a seller's limitation of warranties is effective?
|
It is effective if it isn't unconscionable. It is prima facie unconscionable if breach of warranty on consumer goods causes personal injury.
|
It is possible to limit remedies, even for express warranties.
|
|
|
Under UCC, when may a buyer reject goods?
|
If the seller does not meet the perfect tender standard, the buyer has the option to retain the goods and sue for damages, or reject all or any commercial unit and sue for damages (rejection is limited by cure, installment contract, and acceptance).
|
Perfect tender only applies to the sale of goods, it means perfect goods and perfect delivery, and a less than perfect tender by the seller generally gives the buyer the option of rejecting the delivered goods.
|
|
|
When does a seller have the right to cure under UCC?
|
1. Seller has reasonable grounds to believe that imperfect tender would be acceptable; or|2. The time for performance has not yet expired.
|
The reasonable grounds acception applies even after the performance date has passed.
|
|
|
What is an effective acceptance of goods?
|
1. Express acceptance;|2. Implied acceptance when buyer retains the goods without objection after an opportunity for inspection.
|
Payment without opportunity for inspection is not acceptance.
|
|
|
When is specific performance an appropriate remedy for breach?
|
When damages would be inadequate, as in the case of real estate or unique goods, and judical administration of the injunction would not be overly burdensome.
|
Specific performance is an equitable remedy, so look first for an adequate remedy at law or unclean hands or other parties' equities.
|
|
|
When does a seller have the right to reclaim delivered goods?
|
1. Buyer must have been insolvent at the time that it received the goods;|2. The seller demands return of goods within 10 days of receipt; and|3. The buyer still has goods at time of demand.
|
The 10 day rule becomes a reaonable time rule if before delivery there had been an express representation of solvency by the buyer.
|
|
|
What duty does the non-breaking party have regarding damages?
|
Duty to mitigate: No recovery for damages that could have been avoided without undue burden on non-breaching party.
|
Burdens of pleading and proof on breaching party.
|
|
|
What burden of proof does non-breaching party have regarding damages?
|
Must prove damages with reasonable certainty.
|
Hard to recover damages if new business or new business activity. Here, consider damages based on reliance instead of expectation interest.
|
|
|
When is a liquidated damages provision enforceable?
|
1. Damages were difficulat to forecast at time contract was made; and|2. Provision is a reasonable forecast.
|
Liquidated damages provision cannot constitute a penalty. Fixed numbers are presumptively invalid as a penalty.
|
|
|
Under Common Law, what are the four rules regarding excuse due to other party's improper performance?
|
1. Damages can be recovered for any breach;|2. Only a material breach by one party excuses the other party from performing;|3. Whether a breach is material is a question of fact; and|4. If there is substantial performance, then the breach is not matieral (if the breach is material, then the performance was not substantial).
|
Divisible contract exception: In a divisible contract, there can be a contract law recovery for substantial performance of a divisible part even though there has been a material breach of the entire contract (look at whether price is stated as a lump sum or on a per performance basis).
|
|
|
What is the general rule and the exception to excuse from performance due to failure of an express condition.
|
Express conditions are normally enforced srictly, but when performance is subject to a party's "approval," the performance will be demmed approved if a reasonable person would approve (excluding matters of personal taste).
|
An express condition is a mutually agreed upon promise modifier. Most contracts on the bar are not subject to express conditions (and don't confuse this with a counteroffer).
|
|
|
When can anticipatory repudiation be retracted?
|
When the other party has not materially changed his position.
|
Performance is then reimposed, but can be delayed until the non-repudiating party receives adequate assurance that the repudiating party will perform.
|
|
|
What is the difference between accord and satisfaction and modification?
|
Accord and satisfaction allows a party to satisfy his obligation with a different performance; modification is an agreement by the parties to an existing obligation to accept a differetn agreement in satsifaction of the existing obligation
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The distinction is different performance vs. different agreement.
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When is a party's performance excused due to impossiblity because of someone's death?
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Only when that person was a "special" part of the contract.
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Generally, death does not make a party's contract obligations disappear.
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How does a third party beneficiary's interest in a contract vest?
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1. Knowledge of the contract; and|2. Reliance on or assent as requested to the contract.
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If so, third party's rights have vested and the contract cannot be cancelled or modified without her consent unless the contract otherwise provides.
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What's important to look for when a contract limits assignments?
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Whether the contract prohibits or, alternatively, invalidates assignments.
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Courts favor assignability of contract rights and so they are reluctant to read contract language as preventing an assignment.
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Even when not mentioned in the contract, when how does Common Law limit assignments?
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Even if a contract does not limit the right to assign, Common Law bars an assignment that substantially changes the duties of the obligor.
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Assignment of right to payment is never a substantial change.||Assignment of right to contract performance other than right to payment is usually a substantial change.
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What implied warranties accompany an assignment for consideration?
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Assignor warrants:1.|The right assigned actually exists;|2. The right assigned is not subject to any defenses by the obligor; and|3. The assignor will do nothing to impair the value of the assignment.
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Assignor, however, does not warrant what the obligo will do.
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What is the exception to the general rule that the last gratuitous assignment takes priority?
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A gratuitous assignment is not revocable if:|1. It is the subject matter of a writing delivered to the assignee;|2. The assignee has received some indicia of ownership; or|3.The assignee has relied on the assignemnt in a way that is reasonable, foreseeable, and detrimental.
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If the gift assignment is not revocable, then it will take priority over a later assignment.
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What mnemonic should you use to help you remember contracts analysis? |
Armadillos From Texas Play Rap, Eating Tacos = 1. applicable law; |2. formation; |3. terms; |4. performance; |5. remedies; |6. excuse for nonperformance, 7. third-party problems.
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What is a bilateral contract?
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One that is open as to method of acceptance.
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What is a unilateral contract?
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one that expressly requires performance as the only possible method of acceptance.
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When does Common Law govern contracts?
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When the contract does not involve the sale fo goods.
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Real estate, service contracts
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When does UCC Article 2 govern contracts?
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When the contract is primarily for the sale goods.
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Tangible, personal property
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What are goods for UCC purposes?
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Movable chattel
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When a contract involves both sale of goods and other provisions, what law applies?
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The law governing the more important part of the contract, unless the contract itself divides payment between goods and non-goods. Then, UUC 2 applies to goods part and Common Law to other parts.
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What is the basic definition of a contract?
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A legally enforceable agreement
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Based on the basic definition of a contract, what should you look for in determining whether whether a contract exists?
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Look first for an agreement. Then, second, determine whether the agreement is legally enforceable.
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In looking for an agreement, what general analysis should be followed?
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1. Was there an offer?|2. Has the offer terminated?|3. If not, has there been acceptance?
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What is the general test for whether an offer has been made?
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Manifestation of commitment: Based on words or conduct, would a reasonable person in the position of the offeree believe that his assent creates a contract?
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What must the content of an offer generally contain?
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An offer does not have to contain all meterial terms; there must simply be enough, between the offer and acceptance, to determine the existence of a contract and a breach.
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Must a price be included in a valid offer?
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Common Law: Yes, price and description reqiured.|UCC: No.
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Under both the Common Law and UCC, an offer cannot be based on vague or ambiguous material terms.
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What is the main limitation on requirement contracts?
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Demand during one period cannot be unreasonably disproportionate to demands from preceding periods.
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Requirements contract/output contracts are not invalid for vagueness or ambiguity.
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When can an advertisement be an offer?
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Generally, an advertisement is not an offer.||However, an advertisement can be an offer if it specifies quantity and expressly indicates who can accept, or if it is in the nature of a reward.
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What are the four methods of terminating an offer?
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1. Lapse of time;|2. Revocation by offeror;|3. Rejection/Counteroffer by offeree;|4. Death of a party prior to acceptance
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Under what circumstances does a contract terminate due to lapse of time?
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Offer expires after a reasonable amount of time or at the time stated.
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How does an offeror revoke an offer?
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1. Unambiguous statement by offeror to offeree of unwillingness or inability to contract; or|2. Unambiguous conduct by offeror indicating unwillingness or inability to contract that the offeree is aware of.
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When does a revocation of an offer sent through the mail become effective?
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When it is received.
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When can an offer not be revoked?
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1. Acceptance;|2. Option;|3. UCC Firm Offer;|4. Reasonably foreseeable detrimental reliance;|5. Reasonable time after start of performance on a unilateral contract
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The last four categories are irrevocable offers.
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How is an option created?
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1. Offer;|2. Promise to not revoke or to keep the offer open; and|3. This promise is supported by consideration.
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What is the UCC Firm Offer Rule?
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An offer cannot be revoked for up to three months if:|1. Offer to buy or sells goods;|2. Signed, written promise to keep the offer open; and|3. Party is a merchant.
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What are the three methods of rejecting an offer?
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1. Counteroffer;|2. Conditional acceptance; and|3. Additional terms
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The first two apply to all contracts; additional terms rule does not apply to contracts for sale of goods.
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On the bar exam, how can you differentiate counteroffers from mere bargaining?
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Counteroffers will be declaratory, bargaining will be interrogatory.
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Bargaining does not terminate an offer.
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How is a conditional acceptance recognized?
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Look for an acceptance, followed by "if," "only if," "so long as," "but," or "on condition that."
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A conditional acceptance always operates the same way as a counteroffer: it terminates the offer and becomes a new offer.
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What is the mirror image rule?
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Under Common Law, a response to an offer that adds new terms is treated like a counteroffer rather than an acceptance.
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What is the effect of additional terms under the UCC?
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As long as the response does not make the new terms a condition of acceptance, it is treated as a seasonal expression of acceptance and there is a contract.
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Whether the parties are merchants is irrelevant.
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If there is a seasonal expression of acceptance, are the additional terms part of the contract?
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If at least one party is not a merchant, the additional term is merely a proposal that is to be separetly accepted or rejected.||If both parties are merchants, the general rule is that the additional term is a part of the contract.
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What are the exceptions to the rule that additional terms are part of a contract between merchants?
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1. The additional term materially changes the offer; or|2. The offeror objects to the change.
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What is the general rule about death terminating an offer?
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Death or incapacity of either party after the offer but before acceptance terminates the offer.
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What is the exception to the rule that death terminates an offer?
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Irrevocable offers.
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How is an improper verbal response (i.e., counteroffer or conditional acceptance) followed by later conduct indicating a contract treated regarding acceptance?
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Common Law: The conditional acceptance is treated as a counteroffer and the later conduct is treated as acceptance of that counteroffer. Thus, all the terms of the conditional acceptance are part of the contract.||UCC: The contract is based solely on the conduct. The conditional acceptance is not treated as a counteroffer and is not part of the contract. The terms appearing only in the conditional acceptance are not part of the contract.
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How is full performance treated regarding acceptance?
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Full performance is acceptance, but there may be an issue as to notice to the offeror.||Notice turns on:|1. What the offer requires; or|2. Whether the offeree has reason to believe that offeror will not learn of the acceptance.
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How is start of performance treated regarding acceptance?
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Start of performance is acceptance of an offer to enter into a bilateral contract but is not acceptance of an offer to enter into a unilateral contract.
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Starting to perform is treated as an implied promise to perform and so there is a bilateral contract. Further, since start of performance is a promise to perform, it cannot constitute acceptance of a unilateral contract because a unilateral contract requires performance for acceptance, which means completion of performance.
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How is a promise to perform treated regarding acceptance?
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A promise to perform is acceptance for bilateral contracts, unless the offer states otherwise.
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What is the mailbox rule?
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1. All commincations other than acceptance are effective only when received;|2. Acceptance is generally effective when mailed;|3. If a rejection is mailed before an acceptance is mailed, then the first to arrive is effective; and|4. The mailbox rule cannot be used to meet an option deadline.
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An acceptance is effective when mailed, unless a rejection has been sent first. Then the first to arrive is effective.
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How is the shipment of nonconforming goods treated regarding acceptance?
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Acceptance and breach.
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If there is an explanation, then there has been an accommodation, which is treated as a counteroffer and no breach.
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Who may accept an offer?
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A person who knows about the offer who is the person to whom it was made.
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Can offers be assigned by the offeree?
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No, unless there's an option contract that does not restrict the right to assign.
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When is silence effective acceptance?
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When custom indicates that silence is effective acceptance or offeree agrees that silence is effective acceptance by his words or conduct.
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What are the eleven legal reasons for not enforcing an agreement?
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1. Lack of consideration or a consideration substitute;|2. Lack of capacity;|3. Statute of Frauds;|4. Illegality;|5. Public policy;|6. Misrepresentations;|7. Nondisclosure;|8. Duress;|9. Unconscionability;|10. Ambiguity; and|11. Mistake.
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What is consideration?
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A bargained-for legal detriment.
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What four forms does consideration gernally take?
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1. Doing something not legally obligated to do;|2. Not doing something legally entitled to do;|3. Promise to perform; and|Promise to forbear.
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When is a contractual promise illusory and, therefore, innefective as consideration?
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When the promisor alone fully controls whether she will actually be require to perform.
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When is past consideration sufficient to form a contract?
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When the consideration was expressly requested by promisor and promisee knew that payment for performance was expected.
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Under Common Law, when can doing something you already have a legal duty to do serve as consideration?
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Generally, doing what you are already legally obligated to do is not new consideration for a new promise to pay more, unless:|1. Addition to or change in performance; |2. Unforeseen difficulty so severe as to excuse performance; and|3. Third party promise to pay.
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Under the UCC, can a preexisting legal duty serve as effective consideration?
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Yes. Article 2 does not have a pre-existing legal duty rule. New consideration is not required to modify sale of goods contract. Good faith is the test for changes in an existing slae of goods contract.
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When may partial payment serve as cosideration for release of a debt?
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When payment is not yet due or is disputed.
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When is a promise legally enforceable even though there is no consideration (what are the types of consideration substitutes)?
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1. Written promise to satify an obligation for which there is a legal defense; |2. Promissory estoppel
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What are the elements of prmissory estoppel?
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1. Promise;|2. Reliance that is reasonable, detrimental, and foreseeable; and|3. Enforcement necessary to avoid injustice.
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Who lacks capacity to contract?
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1. Minors (under 18);|2. Mental incompetents (lack ability to understand agreement); and|3. Intoxicated persons (if the other party has reason to know of intoxication).
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What is the risk of entering into a contract with someone who lacks capacity?
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The incapable party may disaffirm the contract.
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When may a person who entered a contract while incapable no longer disaffirm?
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When they expressly or impliedly affirm the contract after obtaining capacity (ratification after obtaining capacity).
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When will someone who lacks capacity be liable on the contract under quasi-contract?
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When the contract is for necessaries. However, since this exception is based on quasi-contract, the incapable person will only be required to pay as much as is equitable.
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Necessaries include such things as food, clothing, medical care, or shelter.
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What contracts are within the Statute of Frauds?
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1. Promises in consideration of marriage; |2. Promises by executors to pay an estate's obligation from his own funds; |3. Promises gauranteeing another's debt; |4. Contracts for which full performance cannot be completed within one year from date of contract; |5. Transfers of real estate interests more than a year;|6. Sale of goods $500 or more.
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1. Marriage;|2. Year;3.|Land;|4.Executor;|5. Gaurantees of suretyship;|6. Sales of goods $500 or more
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When does the Statute of Frauds not apply to promises gauranteeing the debts of another?
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When the main purpose for the guarantee was to benefit the promisor.
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Does a contract for the duration of someone's life fall under the Statute of Frauds?
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No, the person could die within a year.
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How is the Statute of Frauds generally satisfied?
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Performance or a writing.
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Other than a signed writing, how can the Statute of Frauds be satisfied in service contract?
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Full performance by either party.
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Part performance of a services contract does not satisfy the Statute of Frauds.
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What is the effect of part performance on a sale of goods contract?
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The general rule is that part performance of a contract for the sale of goods satisfies the Statute of Frauds, but only to the extent of the part performance.
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If the contract is for the sale of goods that are to be specially manufactured, then the Statute of Frauds is satisfied as soon as the seller makes a substantial beginning, which means that the seller has done enough work that it is clear that what she is working on is specially manufactured.
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What is the effect of part performance on a contract to transfer real estate?
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Part performance can satisfy the Statute of Frauds if the buyer has done any two of the following three:|1.Payment;|2. Improvements; or|3. Possession
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For contracts not under the UCC, how is the Statute of Frauds satisfied through a writing?
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1. Look to see if all material terms are included: who and what; and|2. The writing must be signed by the person asserting the Statute of Frauds defense.
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For contracts that are under the UCC, how is the Statute of Frauds satisfied through a writing?
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1. The writing must indicate that there is a contract for the sale of goods and contain the quantity term; and|2. The writing must be signed by the person asserting the Statute of Frauds defense.
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There is an exception to the signing requirement: If both parties are merchants and the person who receives a signed writing with a quantity term fails to respond within ten days, then that merchant cannot claim there is no contract.
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What is the effect of a judicial admission of the existence of a contract on a Statute of Frauds defense?
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If the defendant asserting a Statute of Frauds defense admits in a pleading or testimony that he had entered into an agreement with the plaintiff, the purpose of the Statute of Frauds, is fulfilled and there is no defense.
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What is the equal dignity rule?
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Authorization to enter into a contract for someone else must be in writing only if the contract to be signed is within the Statute of Frauds.
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When must a contract modification be in writing?
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If the deeal with the alleged change would be within the Statute of Frauds, then the alleged modiciation agreement must be in writing.
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Are contracts requiring written modification of a contract effective?
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Common Law: Contract provisions requiring written modifications are not effective.||UCC: Contract provisions requiring written modifications are effective unless waived.
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Is a contract with illegal subject matter enforceable?
|
If the subject matter is illegal, the agreement is not enforceable?
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Is a contract with illegal purpose enforceable?
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If the subject matter is legal, but the purpose is illegal, the agreement is enforceable only by the person who did not know of the illegal purpose.
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When may a court refuse to enforce an agreement on public policy grounds?
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If, for example, there is an exculpatory agreement that exempts intentional or reckless conduct from liability or there is a convenant not to compete without a reasonable need or reasonable time and place limits.
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When will a contract be unenforceable because of a misrepresentation?
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When one party made a false assertion of fact that induced the other to contract.
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No wrongdoing is required for misrepresentations.
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When will a contract be unenforceable because of non-disclosure?
|
When the non-disclosure was wrongful.
|
Usually requires some affirmative act.
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When will a contract be unenforceable because of duress?
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1. When a party is induced to contract by improper threat; and|2. The vulnerable party is taken advantage of because he had no reasonable alternative.
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When may a court refuse to enforce a contract for unconscionability?
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1. Unfair surprise (procedural); and|2. Oppressive terms (substantive)
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Unconscionability is test at the time the agreement was made and allows the court to refuse to enforce all or part of the agreement.
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When may a court refuse to enforce a contract for ambiguity?
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1. Parties use a material term that is open to at least two reasonable interpretation;|2. Each party attaches a different meaning to the term; and|3. Neither party knows or has reason to know the term is open to at least two reasonable interpretations.
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If one party has reason to know that the material term is open to more than one reasonable interpretation, then there is a contract based on the understanding of the other party.
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When will a contract be unenforceable because of a mutual mistake?
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A mutual mistake will render a contract unenforceable if both parties are mistaken as to an assumption of fact which materially affects the agreed upon exchange.
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Mistake as to value is not sufficient
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When will a contract be unenforceable because of a unilateral mistake of material fact?
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Generally, courts have been reluctant to allow a party to avoid a contract for a mistake made by only one party.
|
Look for situations in which the other party had reason to know of the mistake.
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What is the parol evidence rule?
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Extrinsic evidence of prior or contemporaneous agreement not admissible to prove inconsistent or additional terms in a fully-integrated written contract.
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A court may consider such terms for the limited purpose of determining whether there was a mistake in integration, i.e., a mistake in reducing the agreement to writing.||A court may also consider earlier statements for determing if there was a misrepresentation, fraud, or duress.
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What evidence does the court use to explain contract terms or fill gaps, and what priority does it give to each?
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1. Course of performance (same people, same contract);|2. Course of dealing (same people, different but similar contract);|3. Custom and usage (different but similar people, different but similar contract
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Under the UCC, if goods are to be delivered by a common carrier under a shipment contract, what is the obligation of the seller?
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The seller completes his delivery obligation when he|1. Gets the goods to a common carrier;|2. Makes reasonable arrangements for delivery; and|3. Notifies the buyer.
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Under the UCC, if goods are to be delivered by a common carrier under a destination contract, what is the obligation of the seller?
|
The seller completes his delivery obligation when the goods arrive where the buyer is.
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How can you identify a shipment contract versus a delivery contract?
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Most contracts with delivery obligations are shipment contracts (FOB [seller's/good's city]); FOB [any other city] is a destination contract).
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When does a risk of loss issue arise?
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1. After contract has been formed and before buyer has received goods, the goods are damaged through no fault of either party.
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Who bears the risk of loss?
|
1. Agreement.|2. The breaching party, even if breach is unrelated to loss.|3. If delivery by common carrier other than seller, risk of loss shifts from seller to buyer at the time that the seller completes its delivery obligation.|4. If no agreement, no breach, no delivery by carrier, and seller is a merchant, risk of loss shifts from the merchant-seller to the buyer on the buyer's receipt of the goods (risk of loss shifts from a non-merchant seller when he tenders the goods).
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When does an express warranty exist?
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When seller has made a promise, description, or other factual assertion. (Not "sales talk.")
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When does an implied warranty of merchantability exist and what is warranted?
|
When seller deals of goods in the kind, there's an implied warranty that the goods are fit for the ordinary purpose for which such goods are used.
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When does an implied warranty of fitness for a particular purpose exist?
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When buyer relies on selle to select suitable goods for a particular purpose and seller has a reason to know of that purpose.
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How can a seller disclaim implied warranties?
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1. By using conspicuous language of disclaimer which mentions merchantability; or|2. Using language like "as is" or "with all faults."
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Express warranties cannot be disclaimed.
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What is the general test of whether a seller's limitation of warranties is effective?
|
It is effective if it isn't unconscionable. It is prima facie unconscionable if breach of warranty on consumer goods causes personal injury.
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It is possible to limit remedies, even for express warranties.
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Under Common Law, when is a party's performance adequate?
|
If one party substanitally performs then the other party must pay or otherwise perform.
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Under UCC, when may a buyer reject goods?
|
If the seller does not meet the perfect tender standard, the buyer has the option to retain the goods and sue for damages, or reject all or any commercial unit and sue for damages (rejection is limited by cure, installment contract, and acceptance).
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Perfect tender only applies to the sale of goods, it means perfect goods and perfect delivery, and a less than perfect tender by the seller generally gives the buyer the option of rejecting the delivered goods.
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When does a seller have the right to cure under UCC?
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1. Seller has reasonable grounds to believe that imperfect tender would be acceptable; or|2. The time for performance has not yet expired.
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The reasonable grounds acception applies even after the performance date has passed.
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What is required for an installment contract?
|
1. Delivery of the goods in separate lots;|2. The separate lots are to be separately accepted.
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When does a buyer have the right to reject an installment?
|
Only where there is a substanital impairment in that installment that can't be cured.
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What is an effective acceptance of goods?
|
1. Express acceptance;|2. Implied acceptance when buyer retains the goods without objection after an opportunity for inspection.
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Payment without opportunity for inspection is not acceptance.
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When can a buyer of goods revoke acceptance?
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1. Nonconformity substantially impairs the value of the goods;|2. Excusable ignorance of grounds for revocation or reasonable reliance on seller's assurance of satisfaction; and|3. Revocation within a reasonable time after discovery of nonconformity.
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What other requirements are there for rejection and revocation?
|
1. Seasonably notify seller;|2. Hold goods for seller; and|3. Follow reasonable seller instructions.
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What are the three things to remember about payment?
|
1. Open price term means reasonable price at time of delivery;|2. Price to be fixed by buyer or seller means that the price must be so fixed in good faith; and|3. Price payable in goods means that each party is seller of goods it provides.
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When is specific performance an appropriate remedy for breach?
|
When damages would be inadequate, as in the case of real estate or unique goods, and judical administration of the injunction would not be overly burdensome.
|
Specific performance is an equitable remedy, so look first for an adequate remedy at law or unclean hands or other parties' equities.
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Is specific performance available for personal service contracts?
|
No specific performance, but possible injunctive relief.
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When might the courts reform a contract?
|
1. when there was a mistake in the writing of an agreement (such as a clerical error), or |2. there was fraudulent misrepresentation as tow hat was included in an agreement.
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When does a seller have the right to reclaim delivered goods?
|
1. Buyer must have been insolvent at the time that it received the goods;|2. The seller demands return of goods within 10 days of receipt; and|3. The buyer still has goods at time of demand.
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The 10 day rule becomes a reaonable time rule if before delivery there had been an express representation of solvency by the buyer.
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What is the risk of entrusting goods to a seller?
|
If owner leaves goods with seller of like kind and that seller wrongfully sells the goods, a good faith purchaser for value gains superior rights to the property.
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What measure of damages is the non-breaching party normally entitled to?
|
Expectation damages: Put non-breaching party whaere it would have been if contract had been performed.
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Explain damages based on reliance interest?
|
Puts non-breaching party in the position it was in before the contract (as if the contract never happened).
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Explain damages based on restitution interest?
|
Prevents unjust enrichment to breaching party.
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Appropriate damages when seller breaches and buyer keeps the goods?
|
FMV if goods were perfect - FMV as delivered.
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Appropriate damages where seller breaches and seller keeps the goods.
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Market price at time of discovery of breach - contract price; or|Replacement price - contract price.
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Appropriate damages where buyer breaches and buyer has the goods.
|
Contract price.
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Appropriate damages where buyer breaches, seller has the goods.
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Contract price - market price at time and place of delivery; or|Contract price - resale price;|In some cases, add on provable lost profits.
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What are incidental damages?
|
Costs incurred in dealing with the breach.
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When are incidental damages recoverable?
|
Always
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What are consequential damages?
|
Damages arising from non-breaching party's special circumstances.
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When are consequential damages recoverable?
|
When breaching party had reason to know of the special circumstances at the time of the contract.
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What duty does the non-breaking party have regarding damages?
|
Duty to mitigate: No recovery for damages that could have been avoided without undue burden on non-breaching party.
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Burdens of pleading and proof on breaching party.
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What burden of proof does non-breaching party have regarding damages?
|
Must prove damages with reasonable certainty.
|
Hard to recover damages if new business or new business activity. Here, consider damages based on reliance instead of expectation interest.
|
|
|
When is a liquidated damages provision enforceable?
|
1. Damages were difficulat to forecast at time contract was made; and|2. Provision is a reasonable forecast.
|
Liquidated damages provision cannot constitute a penalty. Fixed numbers are presumptively invalid as a penalty.
|
|
|
When will limitations on remedies be unenforceable?
|
When unconscionable at time of contract.
|
|
|
|
Generally, when will a party's performance be excused under the UCC?
|
1. The other party's tender was not perfect; or|2. Something happened after formation that excuses nonperformance.
|
|
|
|
What is the general rule and the exception to excuse from performance due to failure of an express condition.
|
Express conditions are normally enforced srictly, but when performance is subject to a party's "approval," the performance will be demmed approved if a reasonable person would approve (excluding matters of personal taste).
|
An express condition is a mutually agreed upon promise modifier. Most contracts on the bar are not subject to express conditions (and don't confuse this with a counteroffer).
|
|
|
How can failure of an express condition be excused, requiring the other party to perform?
|
1. Estoppel: Party gives up the condition before performance by the other party;|2. Waiver: Party gives up condition after the other party has performed;|3. Prevention: The party protected by the express condition hinders or prevents the occurrence of the express condition; and|4. Avoidance of forfeiture: Court excuses the non-occurrence of the express condition to avoid excessive harm to the party not protected by the express condition.
|
|
|
|
When is failure to perform excused by the other party's anticipatory repudiation?
|
Prior to the time that performance is due, the repudiating party makes an unambiguous statement or engages in conduct indicating that the repudiating party will not perform.
|
|
|
|
What other effect does anticipatory repudiation have aside from excusing performance?
|
Allows an immediate action for damages.
|
|
|
|
When can anticipatory repudiation be retracted?
|
When the other party has not materially changed his position.
|
Performance is then reimposed, but can be delayed until the non-repudiating party receives adequate assurance that the repudiating party will perform.
|
|
|
When can a contract be rescinded?
|
When neither party has fully performed.
|
|
|
|
What is accord and satisfaction?
|
Parties to an existing contract agree to accept a different performance in satisfaction of the existing obligation.
|
|
|
|
How is an accord satisfied?
|
By the different performance.
|
|
|
|
What happens if an accord is not satisfied?
|
The other party may sue for the original obligtion or the accord.
|
|
|
|
What is the difference between accord and satisfaction and modification?
|
Accord and satisfaction allows a party to satisfy his obligation with a different performance; modification is an agreement by the parties to an existing obligation to accept a differetn agreement in satsifaction of the existing obligation
|
The distinction is different performance vs. different agreement.
|
|
|
What is a novation?
|
An agreement by both parties to the original contract to substitute an original party with a new third party. Novation excuses the person replaced from any liability for non-performance.
|
|
|
|
What is delegation?
|
A unilateral decision by one party to have a third party perform his obligation under the contract. Delegation does not excuse the person replaced from liability for non-performance.
|
|
|
|
When is performance excused due to imposibility, impracticability, or frustration of purpose?
|
After the contract was formed but before performance, some unforeseen event makes performance impossible, commercially impracticable, or frustrates the original purpose for entering into the contract.
|
|
|
|
When is a party's performance excused due to impossiblity because of someone's death?
|
Only when that person was a "special" part of the contract.
|
Generally, death does not make a party's contract obligations disappear.
|
|
|
When does a third party beneficiary have the right to sue to enfoce a contract?
|
1. the third party was intended to be a beneficiary of the contract, and |2. that party's interest in the contract has vested.
|
|
|
|
What is a third party beneficiary?
|
1. Not a party to the contract;|2. Able to enforce contract others made for her benefit
|
|
|
|
Who is the promisor?
|
The person who is making the promise that benefits the third party.
|
|
|
|
Who is the promisee?
|
The person who obtains the promise that benefits the third party.
|
|
|
|
How does a third party beneficiary's interest in a contract vest?
|
1. Knowledge of the contract; and|2. Reliance on or assent as requested to the contract.
|
If so, third party's rights have vested and the contract cannot be cancelled or modified without her consent unless the contract otherwise provides.
|
|
|
What defenses are available on a third party beneficiary contract?
|
If the beneficiary sues the promisor, the promisor can assert any defense he would have had against the promisee.
|
|
|
|
Who can sue whom on a third party contract?
|
1. Beneficiary can recover from promisor;|2. Promisee can recover from promisor; and|3. Beneficiary can recover from promisee if beneficiary is a creditor on a pre-existing debt.
|
|
|
|
What is an assignment?
|
A transfer of rights under a contract in two separate steps:|1. Contract between two parties; and|2. One of the parties later transferes rights under that contract to a third party.
|
|
|
|
What's important to look for when a contract limits assignments?
|
Whether the contract prohibits or, alternatively, invalidates assignments.
|
Courts favor assignability of contract rights and so they are reluctant to read contract language as preventing an assignment.
|
|
|
What is the effect of a prohibition on assignment?
|
Language of prohibition takes away the right to assign, but not the power to assign. This means that the assignor is liable for breach of contract, but an assignee who does not know of the prohibition can still enforce the assignment.
|
|
|
|
What is the effect of an invalidation on assignment?
|
Language of invalidation takes away both the right to assign and the power to assign so that there is a breach by the assignor and no rights in the assignee.
|
|
|
|
Even when not mentioned in the contract, when how does Common Law limit assignments?
|
Even if a contract does not limit the right to assign, Common Law bars an assignment that substantially changes the duties of the obligor.
|
Assignment of right to payment is never a substantial change.||Assignment of right to contract performance other than right to payment is usually a substantial change.
|
|
|
May assignee sue obligor for performance?
|
Yes, however, performance by obligor to assignor is still effective unless obligor knows of the assignment.
|
|
|
|
Is consideration required for an assignment?
|
Generally, no. But gratuitous assignments may be revoked.
|
|
|
|
What implied warranties accompany an assignment for consideration?
|
Assignor warrants:1.|The right assigned actually exists;|2. The right assigned is not subject to any defenses by the obligor; and|3. The assignor will do nothing to impair the value of the assignment.
|
Assignor, however, does not warrant what the obligo will do.
|
|
|
What is the general rule for priority where there have been multiple gratuitous assignments?
|
Last assignee wins; since gratuitous assignments can be revoked, a later gift assignment revokes an earlier gift assignment.
|
|
|
|
What is the exception to the general rule that the last gratuitous assignment takes priority?
|
A gratuitous assignment is not revocable if:|1. It is the subject matter of a writing delivered to the assignee;|2. The assignee has received some indicia of ownership; or|3.The assignee has relied on the assignemnt in a way that is reasonable, foreseeable, and detrimental.
|
If the gift assignment is not revocable, then it will take priority over a later assignment.
|
|
|
What is the general rule for priority where there have been multiple assignments for consideration?
|
First assignee wins.
|
|
|
|
What is the exception to the general rule that the first assignee for consideration takes priority?
|
A subsequent assignee for consideration takes priority over an earlier assignee for value only if he both:|1. Does not know of the earlier assignment; and|2. Is the first to obtain payment, a judgment, a novation, or indicia of ownership.
|
|
|
|
May an assignor for consideration recover from an obligor?
|
No.
|
|
|
|
What defenses are available to an olbigor again an assignee?
|
The defenses the obligor would have against assignor.
|
|
|
|
What are the limitations on delegation?
|
Generally, contractual duties are delegable unless either:1. Contract prohibits delegations or prohibits assignments;|2. Contract calls for very special skills; or|3. Person to perform contract has a very special reputation.
|
|
|
|
What if, after delegation, the third party delegatee does not perform?
|
1. Delegating party always remains liable.|2. Delegatee liable only if she receives consideration from delegating party.
|
|
|
|
Requirements of justiciability
|
Standing, Ripeness, Mootness, Political Question
|
|
|
|
Allowable injuries for standing
|
Actual personal injury or future imminent injury
|
|
|
|
3 Exceptions for allowable third-party standing
|
Close relationship, unable third party, organizational
|
|
|
|
Request for Declaratory Judgment...
|
Goes with ripeness issues
|
|
|
|
2 Components of Ripeness
|
Potential hardship, fitness of issues/record
|
|
|
|
3 Exceptions for mootness
|
capable of repetition but evading review, voluntary cessation, class actions
|
|
|
|
4 Types of Political Questions
|
"Republican form of Government", presidential foreign policy, impeachment/removal, gerrymandering
|
|
|
|
2 Exceptions to writ of certiorari
|
Appeal from 3-judge district court, suits between states
|
|
|
|
Final Judgment Rule
|
No interlocutory review in Supreme Court
|
Final judgment by highest state court, COA, or three-judge panel
|
|
|
Independent and Adequate state grounds
|
Bars SCOUTS review
|
|
|
|
Sovereign Immunity
|
No suits against state governments (11th Amendment)
|
|
|
|
4 Exceptions to Sovereign Immunity
|
Waiver, §5 of 14th Amendment, Suit from Federal Govt, Bankruptcy
|
|
|
|
2 Allowable remedies for Officer Suits
|
Injunctive relief, personal damages
|
State officers may not be sued if damages are paid put of the state treasurey
|
|
|
Abstention
|
Cannot enjoin pending state court proceedings
|
|
|
|
Congressional authority to act comes from...
|
Express or Implied Congressional power|Necessary and Proper clause
|
|
|
|
4 areas of federal Police Power
|
Military, indian reservations, federal lands, D.C.
|
|
|
|
Necessary and Proper Clause
|
"Any means not prohibited by Constitution" to carry out its authority
|
|
|
|
Law for "general welfare"...
|
Goes with taxing and spending power or area of police power
|
Congress may tax and spend for the general welfare
|
|
|
Three areas Congress may regulate pursuant to the Commerce Clause
|
Channels of interstate commerce|Instrumentalities of and People or things within interstate commerce|Economic acitivites that have a substantial effect on interstate commerce
|
For non-economic activities, the substantial effect cannot be based on cumulative impact
|
|
|
Substantial effects on interstate commerce
|
Cumulative effect allowed ONLY for economic activities
|
|
|
|
5 Areas of Congressional Authority
|
Express or implied, commerce, tax/spending, necessary and proper, §5 of the 14th Amendment
|
|
|
|
10th Amendment limitation
|
Congress cannot compel state regulatory or legislative action; Congress may prohibit harmful commercial activity by state governments
|
Congress can induce state action by putting strings on grants, so long as the conditions are expressly stated and relate to the purpose of the spending program
|
|
|
Congress' power under §5 of 14th Amendment
|
Congress cannot create new rights or expand the scope of rights
|
Congress may act only to prevent or remedy violations of rights recognized by the courts and such laws must be proportional and congruent to remedying constutional violations
|
|
|
Non-delegation Doctrine
|
No effective limit exists on Congress' ability to delegate legislative power
|
Always a wrong answer
|
|
|
Legislative Vetos
|
Not allowed
|
|
|
|
Line-item Vetos
|
Not allowed
|
The President must sign or veto the bill in its entirety
|
|
|
Presidential Vetos
|
Bill in its entirety
|
|
|
|
Requirements for Congressional veto
|
Bicameralism and Presentment
|
|
|
|
Congressional delegation of Executive Power
|
Congress may not delegate executive power to itself or its officers
|
|
|
|
Which trumps the other: Treaties or state law
|
Treaties
|
|
|
|
Which trumps the other: Treaties or federal statutes
|
The one adopted last in time controls
|
|
|
|
Which trumps the other: Treaties or US Constitution
|
US Constitution
|
|
|
|
Requirements for Treaties
|
Negotiated by President and ratified by Senate
|
|
|
|
Requirements for Executive Agreement
|
Signed by the President and the head of the foreign nation
|
|
|
|
Which trumps the other: Executive agreement or state law
|
Executive agreement
|
|
|
|
Which trumps the other: Executive agreement or federal statute
|
Federal statute
|
|
|
|
Which trumps the other: Executive agreement or US Constitution
|
US Constitution
|
|
|
|
Describe the President's power as Commander-in-Chief
|
The President has broad powers to use American troops as Commander-in-Chief
|
Usually a wrong answer
|
|
|
What three positions does the Peesident have appointment power over
|
Ambassadors, Federal judges, and officers of the United States
|
|
|
|
What three positions may the President's appointment power be extended to by Congress
|
Inferior officers, heads of departments, or lower federal courts
|
An inferior officer is one who can be fired by an officer
|
|
|
Congress appointment power
|
Congress may not give itself or its officers the appointment power
|
|
|
|
Congress may only limit the President's removal power under what circumstances
|
It must be an office where independence from the President is desireable and removal can be limited to where there is good cause
|
|
|
|
Grounds for impeachment
|
Treason, bribery, high crimes and misdemeanors
|
|
|
|
In order to remove a person after impeachment, what must happen
|
The person must also be convicted by the Senate (2/3 majority vote)
|
Impeachment in the House requires a majority vote
|
|
|
Presidential Immunity
|
The President has absolute immunity to civil suits for money damages for actions while in office
|
The Pesident does not have immunity for actions that occurred prior to taking office
|
|
|
Presidential Executive Privilege
|
The President has executive privilege for presidential papers and conversTions, but this privilege must yield to other important government interests
|
|
|
|
Power of Pardon
|
The President has the power to pardon those accused or convicted of federal crimes
|
Does not apply to impeachment and only pardons criminal liability
|
|
|
Supremacy Clause
|
Constitution, and laws/treaties made pursuant to it, are the supreme law of the land
|
|
|
|
Express Preemption
|
Federal statute explicitly states that it wholly occupies a field
|
|
|
|
What are the three scenarios raising implied preemption
|
Federal law preempt state law if:|1. Federal and state laws are mutually exclusive|2. State law impedes the advancement of a federal objective|3. Congress evinces a clear intent to preempt state law
|
|
|
|
Inter-governmental Immunity
|
States may not tax or regulate federal government activity
|
It is unconstitutional to pay a state tax out of the federal treasury
|
|
|
Dormant commerce clause
|
State and local laws are unconstitutional if they place an "undue burden" on interstate commerce
|
This includes when Congress hasn't acted
|
|
|
Privileges and Immunities -- Article IV
|
No state may deprive citizens of other states of privileges and immunities given to its own citizens
|
Anti-discrimination provision
|
|
|
Privileges and Immunities -- 14th Amendment
|
Always a wrong answer unless it involves the right to travel (which is a fundamnetal right under the 14th Amendment)
|
|
|
|
If a state or local law does not discriminate against out-of-staters, what is the Dormant Commerce Clause/P & I Clause of Article IV analysis
|
If the government is burdening interstate commerce, balance the benefit to the state against the burden on interstate commerce (if the benefit to the state exceeds to burden, the lawnis upheld; if the burden exceeds the benefit, the law is struck down)
|
The Privileges and Immunities Clause of Article IV is inapplicable
|
|
|
If a state or local law discriminates against out-of-staters, what is the Dormant Commerce Clause/P & I Clause of Article IV analysis
|
If the law places an undue burden on interstate commerce, it violates the Dormant Commerce Clause unless it is necessary to acheive an important government purpose
|
If the law discriminates against individuals with regard to civil liberties or important ecomonic activities, it violates the Privileges and Immunities Clause of Article IV unless it is necessary to achieve an important goverment purpose
|
|
|
What are the four distinguishing characteristics between the P & I Clause of Article IV and the Dormant Commerce Clause
|
The Dormant Commerce Clause:|1. Requires discrimination against out-of-staters in order to apply|2. Requires discrimination with regard to civil liberties or important economic activities|3. Corporations and aliens cannot sue under it|4. No exceptions
|
The P & I Clause of Article IV:|1. Does not require discrimination against out-of-staters in order to apply|2. Requires a burden on interstate commmerce|3. Corporations and aliens can sue under it|4. Exceptions: confessional approval and the market participant exception
|
|
|
Corporation bringing state discrimination
|
ONLY dormant commerce clause
|
|
|
|
Describe full faith and credit
|
Courts in one state must give full faith and credit to the judgments of courts in another state so long as:|1. The court that rendered the judgment had jurisdiction over the parties and the subject matter|2. The judgment was on the merits|3. The judgment is final
|
|
|
|
What are the limitations on state taxation of interstate commerce
|
1. States may not use their tax systems to help in-state businesses|2. A state may only tax activities if their is a substantial nexus to the state|3. State taxation of interstate business must be fairly apportioned
|
|
|
|
Under what circumstances may Congress pass statutes in order to apply constitutional norms to private conduct
|
1. The 13th Amendmentcan be used to prohibit private race discrimination|2. The commerce power can be used to apply constitutional norms to private conduct
|
Congress cannot use Sectoon 5 of the 14th Amendment to regulate private conduct; Section 5 can only be used to regulate state and local governments
|
|
|
What are the two situations where private conduct must comply with the Constitution
|
1. The public function exception: The Constitution applies if a private entity is perorming a task traditionally and exclusively done by the government|2. The entanglement exception: The Constitution applies if the government affirmatively authorizes, encourages, or facilitates unconstitutional activity
|
|
|
|
Four examples of state involvement
|
1. Court enforcement of racially restrictive covenants|2. Government leases premises to a business that discriminates|3. State provided books to schools that racially discriminate (here government action was to encourage discrimination)|3. Private regulation of interscholastic sports within a state
|
|
|
|
Three examples of no state involvement
|
1. Business with a liquor license from the state racially dicriminates|2. NCAA suspension of state university coach|3. Private school that is over 99% government funded fires a teacher because of her speech (government subsidy is insufficient for state action)
|
|
|
|
Government subsidy
|
Insufficient for finding state action!
|
|
|
|
Exceptions to Bill of Rights incorporation
|
Second Amendment right to bear arms|Third Amendmen right to not have a soldie quartered in a person's home|Fifth Amendment right to grand jury indictment in criminal cases|Seventh Amendment right to jury by trial in civil cases|Eighth Amendment right against excessive fines
|
|
|
|
Rational Basis test
|
Plaintiff must prove that the law is not rationally related to a legitimate government purpose
|
Does not have to be the least restrictive alternative
|
|
|
Intermediate scrutiny
|
Government must prove that the law is substantially related to an important government purpose
|
Does not have to be the least restrictive alternative
|
|
|
Strict scrutiny
|
Government must prove that the law is necessary to achieve a compelling government purpose
|
Does have to be the least restrictive alternative
|
|
|
Rational Basis - burden of proof
|
Challenger
|
|
|
|
Intermediate scrutiny - burden of proof
|
Government
|
|
|
|
Strict scrutiny - burden of proof
|
Government
|
|
|
|
What is procedural due process
|
What the fovernment must do i order to deprive a person of life, liberty, or property
|
|
|
|
When does a deprivation of liberty occur
|
If there is the loss of significant freedom provided by the Constitution or a statute
|
|
|
|
When institutionalizing an adult, what must be done in order to satisfy procedural due process
|
Notice and a hearing
|
|
|
|
When institutionalizing a child, what must be done in order to satisfy due process
|
Screening by neutral fact-finder
|
|
|
|
Is harm to one's reputation a loss of liberty
|
No
|
|
|
|
Do prisoners have liberty interests
|
Rarely
|
|
|
|
Distinction between "rights" and "privileges"
|
Usually a wrong answer
|
|
|
|
When does a deprivation of property occur
|
If there is an entitlement and that entitlement is not fulfilled
|
An entitlement is a reasonable expectation to continued receipt of a benefit
|
|
|
Government liability under due process
|
Generally, there must be intentional government action or at least reckless action for liability to exist; however, in emergency situations, the fovernment is liable under due process inly if its conduct shocks the conscience
|
Government negligence is not sufficient for a deprivation of due process
|
|
|
Government protection against privately inflicted harms
|
Generally, the government's failure to protect people from privately inflicted harms does not deny due process
|
|
|
|
If the government deprives a person of life, liberty, or property, what procedures are required
|
Balance:|1. The importance of the interest to the individual|2. The ability of additional procedures to increase the accuracy of the fact-finding|3. The government's interest
|
The government need not provide procedural due process when the government has not deprived a person of life, liberty, or property
|
|
|
When terminating welfare benefits, what is required in order to satisfy procedural due process
|
Notice and a hearing prior to termination
|
|
|
|
When terminating social security benefits, what is required in order to satisfy procedural due process
|
Post-termination hearing
|
|
|
|
When disciplining a student at a public school, what is required in order to satisfy procedural due process
|
Notice of charges and an opportunity to explain
|
Corporeal punishment does not require due process
|
|
|
When terminating parental rifhts, what is required in order to satisfy procedural due process
|
Notice and a hearing
|
|
|
|
When awarding punitive damages, what is required in order to satisfy procedural due process
|
Instruction to jury and judicial review for reasonabilty
|
Due process is violated if a judge receives money from a participant
|
|
|
Grossly excessive punitive damages
|
Inherently violation of due process
|
|
|
|
When a US citizen is taken abroad as enemy combatant, what must be done in order to satisfy procedural due process
|
Notice of the charges, legal counsel, and a meaningful factual hearing
|
|
|
|
If there is to be pre-judgment attachment or government seizure of assets, what must be done in order to satisfy procedural due process
|
Except in extreme cases, rhere must be notice and hearing prior to attachment or seizure
|
|
|
|
2 Exceptions to attachment/seizure DP rules
|
Property used in illegal activity, exigent circumstances
|
|
|
|
Substantive due process
|
Does the government have an adequate reason to take away life, liberty, or property
|
|
|
|
What two issues are protected by substantive due process
|
1. Economic liberties|2. Privacy
|
|
|
|
Level of scrutiny for deprivation of economic liberties
|
Rational basis test
|
|
|
|
Takings Clause
|
Government may take private property for public use if it provides just compensation
|
|
|
|
Possessory Taking
|
Government confiscation or physical occupation of property is a taking
|
|
|
|
Regulatory Taking
|
Government regulation isa taking if it leaves no reasonable economically viable use of the property
|
A property owner may bring a takings challenge to regulations that existed at the time the property was acquired
|
|
|
Government conditions on property development
|
Must be justified by a benefit that is roughly proportionate to the burden imposed; otherwise it is a taking
|
|
|
|
Temporary deprivation of property
|
Temporarily denying an owns us of propery is not a taking so long as thegovernment's action is reasonable
|
|
|
|
Three part analysis for takings clause
|
1. Is there a taking|2. Is it for public use|3. Is just compensation paid
|
Public use is very broadly defined: A reasonable belief that the taking will benefit the public is sufficient|Just compensation is measured I. Terms of loss to the owner: Reasonable market value; gain to the taker is irrelevant
|
|
|
The Contracts Clause applies only to
|
State and local interference with existing contracts
|
|
|
|
State or local interference with private contracts must meet what level of scrutiny
|
Intermediate scrutiny
|
|
|
|
Define "Intermediate Scrutiny" under the Contracts Clause
|
If the lefislation substantially impairs a party's rights under an existing contract, then law must be a reasonably and narrowly tailored means ofpromoting an important and legitimate public interest
|
|
|
|
State or local interference with government contracts must meet what level of scrutiny
|
Strict scrutiny
|
Must be a necessary means of achieving a compelling government interest
|
|
|
Ex Post Facto Clause
|
A law that criminally punishes conduct that was lawful when it was done or that increases punishment for a crime after it was committed
|
Does not apply in civil cases: a law imposing coil liability retroactively need only meet a rational basis test
|
|
|
Ex Post Facto forum
|
Criminal cases only
|
|
|
|
Retroactive civil liability
|
Rational basis test -- favorable to government
|
|
|
|
Privacy right
|
Fundamental right protected under substantive due process
|
|
|
|
Seven examples of fundamental privacy rights
|
1. Marry|2. Procreate|3. Custody of one's children|4. Keep the family together|5. Control the upbringing of one's children|6. Purchase and use contraceptives|7. Abortion
|
|
|
|
Generally, what level of scrutiny must be met in order to satisfy substantive eue process when privacy rights are involved
|
Strict scrutiny
|
|
|
|
What is the presumption regarding paternity
|
There is an irrebutable presumption that a married woman's husband is the father of her children
|
This presumption is OK
|
|
|
What is the standard of review for laws limiting a woman's right to an abortion prior to viability
|
States may not prohibit abortions prior to viability, but may refulate a ortions so long as they do not create an undue burden on the ability to obtain abortions
|
Not strict scrutiny
|
|
|
What is the standard of review for laws limiting a woman's right to an abortion after viability
|
States may prohibit abortions unless necessary to protect the woman's life or health
|
Not strict scrutiny
|
|
|
Examples of regulations that do not create an undue burden on the ability to obtain abortions
|
1. 24-hour waiting period|2. Prohibition of partial-birth abortions|3. Must be performed by a licensed physician
|
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|
Government funding of abortions
|
Not required
|
|
|
|
Examples of laws that do place an undue burden on the ability to obtain an abortion
|
1. Spousal consent|2. Spousal notification
|
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|
Parental notice and consent laws for unmatched minors
|
A state mY require parental notice and/or consent for an unmarried minir's abortion so long as it creates an alternative procedure where a minor can obtain an abortion by going before a judge who can approve the abortion by finding that it would be in the minir's best interest or that she is mature enough to decide for herself
|
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|
Right to refuse medical treatment
|
Competant adults have right to refuse life-saving medical care
|
No articulated level of scrutiny
|
|
|
Limitations for refusal of medical care
|
A state may require clear and convincing evidence that a patient wanted treatment terminated before it was ended; a stare may prevent family members from terminating treatment for another
|
There is nit a constitutional right to physician-assisted suicide
|
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|
Does the right to privacy protect the right to engage in private consensual homosexual activity
|
Yes, but no level of scrutiny is articulated; it is just a rule
|
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|
What is the three-part approach o equal protection questions
|
1. What is the classification|2. What level of scrutiny should be applied|3. Does the law meet the level of scrutiny
|
|
|
|
What constitution provisions concerning equal protection apply to which governments
|
Th equal protection clause of the 14th Amendment applies only to state and local governments
|
Equal protection is applied to the federal government through the due process clause of 5th Amendment
|
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|
What classifications must meet strict scrutiny
|
1. Race|2. National origin|3. Alienage, generally|4. Travel, domestic|5. Voting
|
Law must be necessary to achieve a compelling government purpose
|
|
|
What are the two ways to determine the existence of a classification
|
1. The classification is on the face of the law, or|2. The law is racially neutral, however, there is both a discriminatory intent for the law and a discriminatory impact to the law
|
Then the government must meet the relevant level of scrutiny
|
|
|
How should racial classifications benefiting minorities be treated
|
Strict scrutiny is applied
|
|
|
|
What is required for numerical set-asides
|
Clear proof of past discrimination
|
May only be used to remedy clearly proven past discrimination
|
|
|
How may educational institutions use race in admissions decisions to help minorities
|
Only as one factor; cannot add points based solely on race and cannot set aside spots
|
Schools have a compelling interest in having a diverse student body
|
|
|
What role may race play in assigning students to public schools
|
Race may only be used as a factor if strict scrutiny is met
|
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|
What classifications must meet intermediate scrutiny
|
1. Gender|2. Illegitimacy|3. Undocumented alien children
|
Law must be substantially related to an important government purpose
|
|
|
How should gender classifications benefiting women be treated
|
Gender classifications benefiting women that are based on stereotypes will not be allowed
|
Gender classifications that are designed to remedy past discrimination and differences in opportunity will be allowed
|
|
|
Benefits based on female race -- allowed?
|
Not if a role stereotype
|
|
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|
Gender remedies -- allowed?
|
Only if designed to combat past discrimination and differences in opportunities
|
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|
What classifications must meet the rational basis test
|
1. Alienate classifications related to self government and the democratic process|2. Congressional regulation of aliens|3. Age|4. Disability|5. Wealth|6. All other classifications
|
Law must be rationally related to a legitimate government interest
|
|
|
Alienage -- self-gov't and democratic process test
|
Rational basis test -- favorable to government
|
|
|
|
Alienage -- Congressional discrimination test
|
Rational basis test -- favorable to government
|
|
|
|
Alienage -- undocumented alien children test
|
Intermediate scrutiny
|
|
|
|
Non-marital Children -- test
|
Intermediate scrutiny
|
|
|
|
Lass that deny a benefit to all non-marital children, but grant it to all marital children are
|
Unconstitutional
|
|
|
|
Age -- test
|
Rational basis test -- favorable to government
|
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|
Physical Disability -- test
|
Rational basis test -- favorable to government
|
|
|
|
Wealth -- test
|
Rational basis test -- favorable to government
|
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|
|
Economic regulations -- test
|
Rational basis test -- favorable to government
|
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|
Sexual orientation -- test
|
Rational basis test -- favorable to government
|
|
|
|
What are the two fundamental rights under equal protection
|
1. Right to travel|2. Right to vote
|
|
|
|
Travel -- prevention of interstate travel
|
Strict scrutiny
|
|
|
|
Travel -- residency requirements
|
Strict scrutiny (50 day maximum)
|
|
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|
Travel -- foreign travel restrictions
|
Rational basis test -- favorable to government
|
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|
Vote -- test
|
Strict scrutiny
|
|
|
|
Vote -- state and local elections
|
one person -- one vote
|
|
|
|
Vote -- at-large elections
|
Constitutional unless proof of discriminatory purpose
|
|
|
|
Vote -- gerrymandering by race
|
Strict scrutiny
|
|
|
|
Vote -- Presidential uncounted votes
|
Uniform Standard of some sort required
|
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|
|
Education -- test
|
NOT fundamental right!
|
|
|
|
Content-based restrictions on speech generally must meet what level of scrutiny?
|
Strict scrutiny
|
|
|
|
What are the two types of content-based laws?
|
1. Subject matter restrictions: application if the law depends on the topic of the message|2. Viewpoint restrictions: application of the law depends on the ideology of the message
|
|
|
|
Content-neutral laws burdening speech generally must meet what level of scrutiny?
|
Intermediate scrutiny
|
|
|
|
Viewpoint restriction
|
application of law depends on IDEOLOGY of the message
|
|
|
|
Content-neutral laws -- test
|
Intermediate scrutiny
|
|
|
|
What are the two types of prior restraint?
|
1. Court orders|2. Licensing schemes
|
|
|
|
Court orders restricting speech m meet what level of scrutiny?
|
Strict scrutiny
|
|
|
|
What is the proper method of challenging a court order?
|
Procedurally proper court orders must be complied with until they are vacated or overturned; a person who violates a court order is barred from later challenging it
|
|
|
|
What are the requirements for government licencing schemes?
|
The government can require a license for speech only if there is an important reason for licensing and clear criteria leaving almost nondisfretion to the licensing authority
|
Licensing schemes must contain procedural safeguards such ad prompt determination of a request for licenses and judicial review
|
|
|
Person violating court gag order...
|
Barred from later challenging the order
|
|
|
|
When is a law unconstitutionally vague?
|
If a reasonable person cannot tell what speech is prohibited and what is allowed
|
|
|
|
When is a law unconstitutionally overbroad?
|
If it regulates substantially more speech than the constitution allows to be regulated
|
|
|
|
What type of laws are unconstitutionally vague and overbroad?
|
Fighting words laws
|
|
|
|
Fighting words definition
|
Words directed at another that are likely to provoke a violent response
|
|
|
|
Under what circumstances may the government regulate symbolic speech?
|
The government can regulate conduct that communicates if it has an important interest unrelated to the suppression of the message and if the impact on communication is no greater than necessary to achieve the government's purpose
|
|
|
|
Is anonymous speech protected?
|
Yes
|
|
|
|
What speech is unprotected or less protected by the First Amendment?
|
1. Incitement to illegal activity|2. Obscenity and sexually-oriented speech|3. Commercial speech|4. Defamation
|
|
|
|
What qualifies speech as incitement?
|
The speech creates a substantial likelihood of imminent lawless activity and is directed at causing imminent illegality
|
|
|
|
2 Req's for "Incitement of illegal activity"
|
Substantial likelihood of imminent illegal activity, speech directed to causing imminent illegality
|
|
|
|
What is the test for obscenity?
|
1. The material must appeal to the prurient interest (community standard)|2. The material must be patently offensive (statutory standard)|3. Taken as a whole, the material must lack serious redeeming artistic, literary, political, or scientific value (national standard)
|
The government may seize te assets of businesses convicted of violating obscenity laws
|
|
|
Prurient interest
|
A shameful or morbid interest in sex
|
|
|
|
May the government use zoning ordinances to regulate to location of adult bookstores and movie theaters?
|
Yes
|
|
|
|
Describe the extent to which the government may regulate child pornography
|
It can be completely banned, even if not obscene, as long as children were actually used in the production of the material
|
|
|
|
Describe the extent to which the government may regulate the private possession of obscene materials
|
The government may not punish private possession of obscene materials unless it is child pornography
|
|
|
|
What exceptions are there to the general rule that profane and indecent speech is protected by the First Amendmet?
|
1. Over the broadcast media|2. In schools
|
|
|
|
2 exceptions to protection of profane speech
|
Broadcast media, schools
|
|
|
|
What types of commercial speech are not protected by the First Amendment?
|
Advertising for illegal activity, and false and deceptive ads
|
|
|
|
Government regulation of other commercial speech (i.e., speech that does not advertise illegal activity, is not false and deceptive, and does not inherently risk deception) must meet what level of scrutiny?
|
Intermediate scrutiny
|
Additionally, government regulation of commercial speech must be narrowly tailored, but it does not have to be the least restrictive alternative
|
|
|
What are some examples of true commercial speech that may be limited because it inherently risks deception
|
strict scrutiny, narrowly tailored, but not necessarily least restrictive
|
|
|
|
Defamation Req's -- Public Official
|
Must prove 1) falsity of statement, and 2) actual malice
|
|
|
|
Defamation Req's -- Public Figure
|
Must prove 1) falsity of statement, and 2) actual malice
|
|
|
|
Defamation -- Actual Malice defined
|
Knew statement was false or acted with reckless disregard for the truth
|
|
|
|
Defamation Req's -- Private Figure (Public Concern)
|
Must prove 1) Falsity of statement, 2) negligence of the defendant
|
|
|
|
Defamation Req's -- Private Figure (Private Concern)
|
Unclear -- maybe negligence. Burden of proof is on the defendant
|
|
|
|
Defamation -- private figure -- proof of malice
|
Only necessary if of public concern and for presumed/punitive damages
|
|
|
|
What limits does the First Amendment place on liability regarding privacy issues?
|
1. Liability may not be imposed for the truthful reporting of information lawfully obtained from the government|2. Liability may not be imposed onthe media broadcasts a tape of an illegally intercepted call if the media did not participate in the illegality and it involves a matter of public importance
|
The government may limit its dissemination of information to protect privacy
|
|
|
Privacy -- illegally intercepted call
|
Broadcast media has no liability 1) it did not participae in illegality and 2) issue is of public importance
|
|
|
|
Is speech by government employees on the job in performance of their duties protected by the First Amendment?
|
No
|
|
|
|
Other government restrictions based on the conten of speech must meet what level of scrutiny?
|
Strict scrutiny
|
|
|
|
What is a public forum
|
Government properties that the government is constitutionally required to make available for speech
|
|
|
|
Classic examples of public forums
|
Sidewalks, parks
|
|
|
|
What are the rules regarding government regulation of public forums?
|
1) regulations must be subject matter and viewpoint neutral, |2) regulations must be time, place, or manner restrictions that serve an important government purpose and leaves open adequate alternative places for communication,|3) regulations need not be the least-restrictive alternative,|4) city officials cannot have discretion to set permit fees for public demonstrations
|
|
|
|
What is a limited public forum
|
Government properties that the government could close to speech, but chooses to open to speech
|
The same rules apply as for public forums
|
|
|
What is a non-public forum
|
Government properties that the government constitutionally can and doesnclose to speech The government can regulate speech in non-public forums so long as the regulation is reasonable and viewpoint neutral
|
The interest required here is legitimate
|
|
|
Examples of non-public forums
|
Airports, military bases, areas outside prisons/jails, city bus advertising, sidewalksin frin of post-offices
|
|
|
|
Laws that prohibit or punish group activity or that require disclosure of group membership (where such disclosure would chill association) must meet what level of scrutiny?
|
Strict scrutiny
|
|
|
|
To punish membership in a group, what must be proven?
|
That the person:|1. Actively affiliated with the group;|2. Knowing of it's illegal activities; and|3. With the specific intent of furthering those illegal activities
|
|
|
|
When can the free exercise clause not be used?
|
To challenge a neutral law of general applicability
|
However, the government may not deny benefits to individuals who wit their jobs for religious reasons
|
|
|
What is the test for analyzing the constitutionality of a law under the establishment clause?
|
1) there must be a secular purpose for the law|Must have secular purpose,|2) the effect must neither advance nor inhibit religion,|3) there must not beexcessive entanglement with religion
|
|
|
|
In order to discriminate against religious speech or among religions the government must meet what level of scrutiny?
|
Strict scrutiny
|
|
|
|
Local regulation/restriction of adult businesses
|
SCOTUS: okay to pacify neighbors/community if 1) substantial governmental interest and 2) not total prohibition (no need to find business actually OBSCENE)
|
|
|
|
Congressional Use of taxing/spending Power
|
May do any taxing/spending for "common defense and general welfare"
|
|
|
|
Congressional postal power
|
Exclusive power
|
|
|
|
Congressional Police Power
|
ONLY for District of Columbia
|
|
|
|
Requirements for passage of federal law
|
Congressional majority vote, either signed by President or 2/3 override of veto
|
|
|
|
State requirements for political candidates
|
Filing fees okay unless indigent, and the requirement to file a financial statement is okay
|
|
|
|
MA Sale of Liquor -- how regulated?
|
MA grants cities and towns broad control -- town can request that state legislature forbit sales in their borders
|
|
|
|
MA additions to strict scrutiny
|
Besides race, alienage, and national origin, MA also includes sex, religion, ethnic, and handicap, BUT NOT AGE
|
|
|
|
MA rational basis test
|
Classification survives if any facts reasonable justify the harm to the disadvantaged class
|
|
|
|
MA freedom of religion violation claims
|
State must prove that requirement is "unusually important governmental goal" and that an excemption would "substantially hinder the fulfillment of the goal"
|
|
|
|
MA Chapter 151B: Protected Classes
|
Age (over 40), Handicap (accomodations that wouldn't impose undue financial or administrative burdens), Sex, sexual harassment, sexual orientation, religion
|
|
|
|
MA Chapter 151B: Procedures
|
File complaint with MASS Commission Against Discrimination within 6 months, file in superior court if approved by MCAD or if no action within 90 days of submitting to MCAD, right to jury trial
|
|
|
|
MA Chapter 151B: Remedies
|
Injunctive relief and compensatory damages (lost wages, future lost wages, emotional distress)
|
|
|
|
Mass Equal Rights Act
|
All person have same rights as white males to 1) make and enforce contracts, 2) purchase,lease, and sell real and personal property, 3) equal benefit of laws
|
|
|
|
MERA: Remedies
|
Injunctive relief, compensatory, exemplary damages, mandatory attorneys fees
|
|
|
|
Massachusetts Civil Rights Act (MCRA)
|
Forbids all persons (public or private) from interfering or attempting to interfere with rights secured by MASS, US Constitution, or laws, through threats, intimidation, or coercion
|
|
|
|
MCRA: Remedies
|
Injunctive relief, monetary damages, mandatory award of attorney's fees
|
|
|
|
Equal Pay Act
|
1) if substantive content of job is comparable, 2) requiring comparable skills, efforts, responsibilities, 3) maternity leave is mandatory
|
|
|
|
Mass Public Accommodation law
|
no discrimination in public places, also no discrimination in membership for organizations that have a regular "space" for meetings (unless membership is HIGHLY SELECTIVE)
|
|
|
|
Mass Abortion clinic protections
|
Protestors at least 18 feet from entrance
|
|
|
|
Freedom of Association -- oaths?
|
Can ask individuals to take oath swearing no knowing membership with specific intent to further unlawful aims -- but NOT mere membership alone!
|
|
|
|
3 exceptions to state discrimination of interstate commerce
|
1) Important state interest and no reasonable non-discriminatory alternatives, 2) State is "Market Participant", 3) performance of traditional government function (taking away of trash)
|
|
|
|
Federal Property Clause Power
|
Power "to make all needful rules and regulations respecting territory or other properties belonging to United States" (military bases)
|
|
|
|
What is the exception to P & I clause of Article IV's prohibition on discrimination against residents of other states
|
If there is substantial justification for the discrimination and discrimination is least restrictive means of combating the problem
|
|
|
|
What is an Ad Valorem Tax
|
Tax based on percentage of assessed value of property after it is no longer in stream of commerce
|
|
|
|
SCOTUS Original Jurisdiction
|
Where state is a party, suit involving ambassadors, consuls
|
|
|
|
Congress Power to Investigate
|
Limited to areas where Congress has power to legislate
|
|
|
|
True Threats and 1st Amendment
|
Content-based restrictions on speech are allowed when "true threats" that create clera and present danger of imminent lawless action
|
|
|
|
Privileges and Immunities -- who covered?
|
Only citizens!! Not aliens
|
|
|
|
Describe the President's removal power
|
Unless removal is limited bt statute, the President may fire any executive branch officer
|
|
|
|
To whom does the Bill of Rights directly apply to
|
Only the federal government
|
The Bill of Rights is applied to state and local governments through its incorporation into the due process clause o the 14th Amendment
|
|
|
The right to travel
|
Laws that prevent people from moving into a state must meet strict scrutiny; this includes durational residency requirements
|
Restrictions on foreign travel need meet only the rational basis test
|
|
|
At-large elections are constitutional unless
|
There is proof of a discriminatory purpose
|
Discriminatory impact is not enough
|
|
|
Laws that deny some citizens the right to vote must meet what level if scrutiny
|
Strict scrutiny
|
But regulations of the electoral process to prevent fraud only need be on balance desireable
|
|
|
The use of race in drawing election district lines must meet what level of scrutiny
|
Strict scrutiny
|
|
|
|
Is there a fundamental right to education
|
No
|
|
|
|
May the government fund parochial schools?
|
Yes, so long as the funds are not used for religious instruction
|
The government may provide parents vouchers which they may use in parochial schools
|
|
|
May the government sponsor religious activity in public schools?
|
No, but religious student and community groups must have the same access to school facilities as non-religious groups
|
|
|
|
Subject Matter Jurisdiction: State
|
General Jurisdiction unless exclusive elsewhere
|
|
|
|
Subject Matter Jurisdiction: Federal
|
Limited Jurisdiction: Arising Under or Diversity + Supplemental (Common nucleus of operative fact)
|
|
|
|
Arising Under
|
Created by federal law or created by state law but depends on a substantial federal question
|
|
|
|
Diversity
|
No same state across the v.Over 75k
|
|
|
|
Personal Jurisdiction: State
|
1) Consent, 2) Presence (dancing, domicile, doing business), 3) Long-arm PLUS Constitutional
|
|
|
|
Long-arm statute OR
|
Land, Injury, Matrimony, Insurance, Transaction + Constitutional
|
|
|
|
Constitutional Personal Jurisdiction
|
Minimum Contacts + Fairness + Purposeful availment of benefits of state + Targeting consumers in state
|
|
|
|
Service of Process: Federal
|
Abode, Waiver (60 days not 21), agent, personal, all available state methods
|
|
|
|
Service of Process for persons: State
|
Abode (14 yrs + First Class Mail), mail (First class + evidenced mail), office (apparent authority), personal, publication (upon motion showing no other option)
|
|
|
|
Service of Process for Entities:State
|
Office or (personal) agent
|
|
|
|
Venue: Fed
|
Where any defendant resides, if all from same state; or where claim arose
|
|
|
|
Venue: State
|
Where any defendant resides or where claim arose
|
|
|
|
Pleadings: Fed
|
Notice of plausible claims
|
|
|
|
Pleadings: State Court
|
Ultimate Facts
|
|
|
|
Pleadings: Amendments
|
Freely granted for justice - 21 days as of right in fed, 20 as of right in state
|
|
|
|
Pleadings: Amendments: Relation back
|
Claims: SamenessParties: Sameness plus knowledge of mistake in name w/in 120 days of filing in fed but w/in SOL in state
|
|
|
|
Joinder: Federal compulsory counterclaims
|
Same transaction or occurance
|
|
|
|
Impleader
|
3rd party claims for all or part
|
|
|
|
Interpleader
|
Common Fund plus Rival Claimants (Minimal diversity is enough)
|
|
|
|
Intervention
|
Federal Right: Interest adversely affected or discretion and commonality
|
|
|
|
Indispensible parties
|
Action is so prejudicial that action is dismissed in equity and good conscience
|
|
|
|
Class Actions
|
Commonality, adaquacy, numerosity, typicality plus predominance and superiority (in state court)
|
|
|
|
Discovery
|
Relevance + Scope
|
|
|
|
Automatic Prompt Disclosure
|
Federal Only - All potential supporting witnesses, all relevant supporting documents, a damages computation, relevant insurance coverage
|
|
|
|
Traditional Methods: Depositions
|
Only way to reach third parties
|
|
|
|
Traditional Methods: Physical or Mental Examination
|
Court Order granted only upon good cause shown
|
|
|
|
Oregon Discovery
|
No Interrogatories or expert discovery
|
|
|
|
Duty to Supplement
|
If party learns that previously disclosed information was incomplete or incorrect they must supplement
|
|
|
|
Discovery Scope
|
Privileged information outside scope - Attorney Work Product: Mental impressions never - All else: showing need plus harship
|
|
|
|
Voluntary Dismissal: Fed
|
Once before answer served
|
|
|
|
Voluntary Dismissal: State
|
Once up to 5 days before trial
|
|
|
|
First Response State
|
Bad PJ and Bad Process waived if motion to dismiss not in
|
|
|
|
Before Answer State
|
Bad venue waived if motion to challange not in
|
|
|
|
First Response Federal
|
Bad PJ, bad process, bad venue waived if motion to dismiss not in
|
|
|
|
Summary Judgment
|
No genuine issue of material fact
|
|
|
|
JNOV or Judgment as a Matter of Law
|
After adversary rests legally inefficient evidentiary basis + no reasonable jury ould find
|
|
|
|
Renewed JNOV
|
Federal: After verdict within 28 days, but must have moved for JNOV
|
|
|
|
Renewed Judgment as a Matter of law
|
State: After verdict within 28 days, but no need to move earlier
|
|
|
|
New Trial
|
Discretionary upon showing of significant trial errors and against the weight of the evidence. within 28 days in Federal, within 10 in state
|
|
|
|
Trial by jury: State
|
Money damages and no explicit waiver
|
|
|
|
Trial by jury: Federal
|
Requested within 14 days of pleading/answer
|
|
|
|
Vacating Default Judgment: Federal
|
Within reasonable time, liberally granted
|
|
|
|
Vacating Default Judgment: State
|
Within reasonable time, liberally granted upon good cause shown, and a showing of a meritorious defense
|
|
|
|
Relief from judgments within 1 yr
|
Merit, equity, new facts, and due dilligence - Fix the judgment
|
|
|
|
Finality
|
Parties are barred from relitigating claims or issues which they have already litigated to final judgment on the merits. (Res Judicata for parties, estoppel for issues)
|
|
|
|
Appeals: Federal
|
Only on final order, except partial final orders and some interlocutory issues + controlling issues
|
|
|
|
Erie Doctrine
|
Federal court resolves claim not arising under with conflict between federal law and state law. State law governs.
|
|
|
|
Joinder: State
|
All counterclaims are permissive
|
|
|
|
Who has jurisdiction to adjudicate a crime?
|
Situs of Crime:i)Place where conduct of crime occurred, ORii) Place where result of crime occurred
|
|
|
|
Where does JD lie with crimes of omission?
|
JD lies where the act should’ve been performed
|
|
|
|
When can you merge crimes?
|
Generally, no merger of crimes. But, for the MBE remember:-Solicitation and attempt merge into substantive offense.-Conspiracy does not merge with the completed offense.
|
|
|
|
Elements of a crime
|
a) Actus reus (guilty act) OR an omissionb) Mens Rea (guilty mind)c) Concurrence (both AR and MR existed at the same time); andd) Harmful result and causation (harmful result caused by Δ’s act)
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Act
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Any bodily movements. Except:i) Conduct not product of one’s own volitionii) Reflexive or convulsive acts (seizures)iii) Acts performed while unconscious or asleep (sleepwalking)
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Legal duty to rescue
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There is NO legal duty to rescue, UNLESS:(1) Statute says so(2) Contract says so(3) Relationship requires it (parents/spouses)(4) You voluntary assume a duty of care and then fail to perform(5) Your conduct creates the peril
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Mental States for crimes
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a) Specific Intent —qualifies for additional defenses that are not available for other kinds of crimes.b) Malice—Recklessness or extreme indifference to human life c) General Intent (catch-all category)d) Strict Liability (no-intent crimes)
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What are the only two malice crimes in the MBE?
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Murder and Arson
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What are the Specific Intent Crimes?
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a) Solicitationb) Conspiracyc) Attemptd) First degree murder (MBE will tell you if it’s first degree murder.)i) “Murder” alone= CL murder/2nd degree murder= malice crime). Cannot use additional defenses used for SI crimes. e) Assaultf) Larcenyg) Embezzlementh) False pretensesi) Robberyj) Burglaryk) Forgery
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What are the General Intent Crimes?
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All other crimes not mentioned unless it qualifies for strict liability
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Transferred Intent
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Describes the fact that intent can be transferred between victims, between torts, or both.
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What are accomplices liable for?
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Accomplices are liable fori) Crime itself andii) All other foreseeable crimes
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What are the inchoate offenses?
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Inchoate (committed prior to or in preparation for a more serious offense) offenses: a) Solicitationb) Conspiracyc) Attempt
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What is solicitation?
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a) Asking someone to commit a crimeb) Solicitation becomes a crime when you ask someone to commit a crimec) If the person agrees to do it, the crime is no longer solicitation but conspiracyd) Solicitation then merges into the conspiracy and only conspiracy remains
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What is conspiracy?
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Express or implied agreement between two or more people to commit an unlawful act, followed by an overt act
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What's an overt act?
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An act from which criminal intent can be inferred.i) Majority View (CL): ANY act, however slight, in furtherance of the conspiracy (e.g., showing up at the site of the intended crime)ii) Minority View: (MBE will tell you if it’s a minority JD) —rests on the agreement alone and no overt act required.
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Liability of conspirator and co-conspirators
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Each conspirator is liable for all crimes of co-conspirators IFi) Foreseeable andii) Committed in furtherance of the conspiracyiii) Various people can be part of a conspiracy even though they don’t know each other, and the agreement does not have to be express
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What is an adequate withdrawal from Conspiracy?
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Three requirements:(1) Cease acts: Δ must cease to commit acts in furtherance of the conspiracy.(2) Communicate withdrawal: the Δ must communciate his withdrawal to ALL co-conspirators in time for them to cease to commit acts in furtherance of the conspiracy.(3) Take action: Withdrawing Δ must take some action to stop the conspiracy and prevent the commission of future crimes.
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What happens if Δ adequately withdraws from Conspiracy?
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If a conspirator succesfully withdraws, he is not liable for future crimes committed by other co-conspirators. However, even if adequate withdrawal, Δ cannot withdraw from the conspiracy once committed.
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Attempt
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Specific intent PLUS substantial step beyond mere preparation (mere preparation is NOT enough) in the direction of the commission of a crime
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What are the four Insanity Defense tests?
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(1) McNaughton Rule: At time of his conduct, Δ lacked ability to know wrongfulness, or Δ unable to understand the nature and quality of her actions(2) Irresistible Impulse Test: Δ lacked capacity for self control and free choice(3) Durham Rule:Conduct was the product of mental illness(4) Model Penal Code:Δ lacked ability to conform his conduct to the requirements of law
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Insanity as a defense
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Insanity is a defense to ALL crimes
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Intoxication as a defense
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(1) Voluntary Intoxication (self-induced intoxication)- Addicts and alcoholics- Defense only applies to specific intent crimes (not to general intent or malice crimes)(2) Involuntary Intoxication- Where party is boozed up without his/her knowledge- Treated like mental illness- Defense to ALL crimes (included SL crimes)
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Infancy as a defense
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a) Under 7 = NO criminal liabilityb) Under 14 = rebuttable presumption of NO criminal liability
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Self Defense: Non-deadly force
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A victim may use non-deadly force any time that he i) Reasonable believesii) Force is about to be used on them
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Self Defense: Deadly Force
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Majority Rule for Deadly Force—A victim may use deadly force any time that hei) Reasonable believesii) Deadly force is about to be used on themMinority Rule for Deadly Force: Retreat Jurisdictions (MBE must tell you)i) Victim must retreat if possible before using deadly force unless:(1) You’re in your own home(2) You’re being raped or robbed(3) You’re a police officer
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Original aggressors using self-defense theory
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VERY RARE—don’t let original aggressors have a self-defense theory unless:ii) Aggressor withdraws from using force ANDiii) Communicates his withdrawal to original victim
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Deadly force to defend dwelling
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Deadly force can NEVER be used solely to defend property
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Duress & Necessity as defenses to crimes
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Both are defense to all crimes except homicide.a) Duress—“I’ll kill you if you don’t rob that store”b) Necessity—criminal conduct as a result of pressure from natural forces to avoid harm to society
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Mistake of Fact (didn’t know acts constituted a crime) Defense
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-Specific Intent crimes: ANY Mistake, whether reasonable or unreasonable can be a defense.-Malice & General Intent: Reasonable Mistakes only to be a defense-Strict Liability: Mistake is NEVER a defense!
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Victim's Consent as a Defense
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Consent of the victim is NEVER a defense
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Entrapment Defense
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Constituted by a law enforcement agent inducing a person to commit an offense that the person would otherwise have been unlikely to commit. However, there is no entrapment where a person is ready and willing to break the law and the government agents merely provide what appears to be a favorable opportunity for the person to commit the crime.
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Define murder
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Malice crime. A homicide is murder if Δ has one of these four intents: i) Intent to killii) Intent to cause great bodily harmiii) Reckless indifference to an unjustifiable high risk to human life –“depraved heart” murderiv) Intent to commit felony murder
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Voluntary Manslaughter
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a) PASSION killing—no time to cool off b) EXTREME provocation
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Involuntary Manslaughter
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a) Killings from criminal negligenceb) Misdemeanor manslaughter (killing during commission of misdemeanor or unenumerated felony)`
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Ways MBE tests "First Degree Murder"
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a) Says “First Degree Murder”b) Gives you a statute
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Felony Murder
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Death during the commission of a felony that is either enumerated or inherently dangerous
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Defenses to Felony Murder
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a) Δ must be guilty of the underlying felony. If Δ has a defense to underlying felony, he has a defense to felony murder. b) Felony must be other than the killing (i.e., manslaughter or battery cannot be the underlying felony)c) Death must be foreseeable (usually is)d) Death must come during the commission of a felony or while fleeing from a felony and lasts until Δ reaches a temporary place of safety. Once Δ reaches tps, felony murder ceases and any deaths consequently caused are not felony murderse) “Red Line” View: Δ NOT liable for the death of a co-felon as a result of resistance by victim or police pursuit
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Define Rape
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a) Unlawful carnal knowledge with woman without her consentb) Slightest penetration completes the crime of rapec) Victim's consent IS a defense
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Statutory Rape
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a) Strict liability crimeb) No consent, no mistake of fact defenses
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Larceny
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Specific intent crime.-Elements:i) Wrongful taking (stealing)ii) Carrying away (however slight)--asportationiii) Personal propertyiv) Of anotherv) Without consent (consent by fear or fraud is not consent)vi) With the intent to permanently deprive owner of propertyvii) Intent must exist at the time of the takingviii) Possession only, title does not pass-Taking property in the belief that it is yours or that you have some right to it is NOT larceny
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Embezzlement
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a) Lawful possession (E.g., trustee of trust fund)b) Followed by illegal conversion (use of property in a way inconsistent w/ terms of trust)c) Embezzler need not benefit personallyd) Possession only, title does not pass
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False Pretenses
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(1) a false representation (2) of a material past or existing fact -not future fact- (3) which the person making the representation knows is false (4) made for the purpose of causing (5) and which does cause (6) the victim to pass title (7) to his property
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Robbery
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Robbery = Larceny + Assault. -A taking -Of personal property of another -Taken from the person or his presence (presence defined broadly)-Against the will of victim-By violence or fear of imminent harm (not future harm; future harm is extortion)Pick-pocketing is NOT robbery
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Extortion
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In extortion, the victim is threatened to hand over goods, or else damage to their reputation or other harm or violence against them may occur -in the future. Need not take from person or his presence
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Burglary
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(1) Breaking and (2) entering (3) the dwelling house (4) of another (5) at night (6) with the intent to commit a felony therein (at common law, not assault, not battery)
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When does intent must exist in a burglary?
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Intent must exist at the time of the breaking and entering
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What constitutes a breaking in a burglary?
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i) Actual--involving some force, however slight; OR(1) If Δ walks in open door is not a breaking, but if Δ opens any other door inside then breakingii) Constructive—by threats or fraud(1) E.g., Maid has key and uses key to come in
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Arson
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(1) Malicious burning of (2) the dwelling house (3) of another
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What is a malicious burning?
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i) Required damage caused by FIRE—not explosions, water damage, or smoke damageii) There must be a material wasting of the fiber of the building by the fire. Mere blackening or discoloration by heat is not enough.
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4th Amendment
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Prohibits unreasonable searches and seizures
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5th Amendment
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i) privilege against compulsory self-incriminationii) prohibits double jeopardy (The act of putting a person through a second trial for an offense for which he or she has already been prosecuted or convicted)
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6th Amendment
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i) right to speedy trialii) right to public trialiii) right to trial by juryiv) right to confront witnessesv) right to compulsory process for obtaining witnesses in Δ’s favorvi) right to assistance of counsel in felony cases, and in misdemeanor cases in which imprisonment is imposed
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8th Amendment
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Prohibits cruel and unusual punishment
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Exclusionary Rule
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Prohibits the introduction of evidence obtained in violation of a Δ’s 4th, 5th, and 6th Amendment rights, at a CRIMINAL trial
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Limitations of The Exclusionary Rule
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The Exclusionary Rule is does NOT apply to:i) Grand Juries: witnesses may be compelled to testify even if the questions are based on evidence from illegal search and seizures.ii) Civil Proceedingsiii) Internal Agency Rules: the exclusionary rule applies ONLY if there’s a violation of the Constitution or Federal law.iv) Parole Revocation Proceedingsv) Good Faith Reliance of Police (3 Circumstances): (1) Case law later changed by another judicial opinion.(2) Facially valid statute as it then existed, even if the statute was later declared unconstitutional(3) Defective search warrant
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Four exceptions to Good Faith Defense based on Defective Search Warrant
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i) Affidavit underlying the warrant is so lacking in probable cause that no reasonable police officer would have relied on itii) Warrant is invalid on its faceiii) Police officer getting the warrant lied to the magistrateiv) Magistrate has wholly abandoned his judicial role
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How can Excluded Evidence be used for Impeachment Purposes?
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i) Voluntary Confessions in Violation of Miranda is admissible to impeach. ii) Truly involuntary confession is never admissible.iii) ALL Illegally Seized evidence may be used to impeach a criminal defendant on cross.(1) Ex: Prosecution had an illegally obtained shirt that the Δ cut holes out of to make pockets to smuggle drugs. Δ took the stand and said he never smuggled drugs with a shirt. Prosecution brought in the shirt.(2) Illegally obtained evidence is never admissible to impeach a witness other than the Δ.
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Harmless error test
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It is the standard for reviewing improperly obtained evidence to admit at trial. Definition: A conviction can be upheld if the conviction would have resutled despite the improper evidence (govt. carries the burden to show harmless beyond a reasonable doubt)
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Fruit of the Poisonous Tree
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Illegally obtained evidence and all evidence obtained from that evidence must be excluded.
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What are the three ways gov’t CAN break chain between original unlawful police action and piece of evidence--to nullify the fruit of the poisonous tree doctrine?
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i) Independent Source: Evidence obtained from a source independent of the original illegality.ii) Intervening Act of Free Will: Δ's will breaks the causal chain (Ex: Δ was illegally arrested and released but then returned to the station house later to confess). iii) Inevitable Discovery: Police would have discovered the evidence whether or not they had acted constitutionally.
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What constitutes a seizure of the person?
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When a reasonable person would believe that he is NOT free to leave (requires a physical application of force or a submission to show of force)
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To detain for a Stop and Frisk police must have
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- Stop: Reasonable suspicion supported by articulable facts of criminal activity- Frisk: reasonable suspicion detainee is armed and dangerous
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Authority to use roadblocks
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1. Must stop cars on the basis of some neutral, articulable standard (every third car)AND2. Be designed to serve purpose closely related to a particular problem related to autos and their mobility
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Validity of pretextual stops
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Valid to stop where traffic law violated even where ultimate motive is to investigate whether some other law violated
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Public Place Arrest: 4th Amendment Rights
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Police do not need a warrant to arrest a Δ in a public place.
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Home Arrests: 4th Amendment Rights
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Police must have an arrest warrant to do a non-emergency arrest in someone’s own home.
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Station House Detention: 4th Amendment
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Police officers must have full probable cause for arrest to bring a suspect to the station house for questioning or fingerprinting.
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When does a Δ have a 4th Amendment right?
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1. Was there govt. conduct?2. Did D have a reasonable expectation of privacy?3. If so, did police have a valid warrant?4. No valid warrant - did police make a valid warrantless search/seizure subject to the Good Faith Defense?
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Government conduct
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(a) Either the publicly paid police or(b) Citizens acting at the direction of the public police or(c) Private security guards/privately paid police is not gov’t conduct UNLESS they’re deputized as officers of the public police w/ the power to arrest.
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What else is needed besides a reasonable expectation of privacy to claim a 4th Amendment right?
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It is not enough to have a reasonable expectation of privacy, a Δ must also have standing to object to legality of search/seizure.
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Automatic Categories of Standing (always has standing)
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(1) Δ owns or has a right to possession of the place searched, including their own body.(2) Place searched was in fact the Δ's home, whether or not she owned or had a right to possession of it (Ex: Grandson who lived at Grandparent’s house)(3) Δ was an overnight guest of the owner of the place searched
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“Sometimes” Categories of Standing
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(1) Δ owns the property seized(2) Δ legitimately present when the item or area was searched
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Past exam situations dealing with standing (3 examples)
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(1) Overnight guests—DO have standing(2) Passengers in cars who don’t claim to own the car OR the property taken out of the car. –Do NOT have standing just because they were present when search took place(3) Individual (in this case drug dealer) briefly on premises of someone else solely for business purpose of cutting up drugs for sale---does NOT have standing
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Things Held Out to the Public (No REOP) (9 Examples)
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(1) Sound of one’s voice(2) One’s handwriting(3) Paint on the outside of a car(4) Smell of one’s luggage and other odors (i.e., drug dogs)(5) Account records held by bank(6) Garbage set out on the curb for collection(7) Automobile’s movement on public roads and arrival at a private residence, even if detection of movement requires a tracking bug(8) Open Fields Doctrine—anything that can be seen across the open field or by(9) Fly-over
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Requirements of a Valid Warrant
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(1) Issued by a neutral and detached magistrate(2) Based on probable cause(3) Particularly describes the place to be searched and the items to be seized
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Neutral and Detached Magistrate
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(1) Magistrate must be neutral and detached from business of law enforcement(2) No good faith defense available if magistrate is not neutral and detached(3) Example: Court Clerk issuing warrants for violations of city ordinances is neutral & detached
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NOT Neutral and Detached Magistrate
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(a) State attorney general(b) A Magistrate who doesn’t get paid unless she issues warrants(c) A Magistrate who comes along in the search
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Use of informers to establish probable cause - sufficiency established by
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(a) If affidavit of probable cause is based on information obtained from informers (even if informer is anonymous), its sufficiency is determined by the totality of the circumstances. (b) Warrant may be based on hearsayInformer's reliability and/or credibility NOT a prerequisite
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Identity of informer
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May remain anonymous
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A search warrant will be invalid where Δ establishes (3)
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1. Affidavit included False Statment of officer filing2. Affiant Intentionally or Recklessly include such statementAND3. False statement was Material to finding probable cause
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Warrant Must Be Precise on Its Face
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Warrant must state with reasonable precision the place to be searched AND the things to be seized
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Execution of a Warrant (6)
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1. By police2. Without unreasonable delay3. Must knock and accounce4. May seize any contraband product of search5. CANNOT search persons on premises not named in warrant (unless probable cause arises)6. Implicit authority for limited detention of persons on premises
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"Knock and Announce" Rule and exception
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Officers must wait 15-20 seconds after knocking and announcing their presence before entry may be made. UNLESS: Iit would be dangerous, futile, or it would inhibit the investigation
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Exceptions to the warrant requirement (6)
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1. Search incident to a lawful arrest2. Automobile exception3. Plain view4. Consent5. Stop and Frisk6. Hot Pursuit, Evanescent evidence, and other Emergencies
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Search incident to a lawful arrest
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i) Lawful arrestii) Search must be contemporaneous in time and place with the arrestiii) Scope is the person and his wingspan (area within Δ’s reach)iv) For automobiles: Wingspan includes interior of car, compartments BUT NOT the trunk
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Automobile Exception (Search of Auto without warrant)
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i) Probable cause it contains contraband (same level as needed to get a search warrant)ii) PC can arise after the car is stopped but MUST arise BEFORE anything or anyone is searchediii) Scope of search is entire car, interior, compartments, trunk, and all packages/luggage or other container that could reasonably contain the item for which they had PC to look (i.e., drugs--> search the container; TVs-->can’t search the container).iv) Containers—can be owned by passenger or driver
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Plain View Doctrine
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i) Officer must legitimately be there ANDii) Item must be in plain view
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Authority to Consent
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Where two or more people have an equal right to the property or premises ANY one of the two can consent to the warrantless search.Police need not warn you that you have a right not to consent
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Consent to false announcement of a warrant
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Negates the consent - no authority to search
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Scope of search based on consent
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Limited to those areas to which a reasonable person under the circumstances would believe it extends
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Scope of search incident to Stop and Frisk
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Pat down of outer clothing
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Evanescent Evidence
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EE is evidence that might go away if police were required to get a warrant (i.e., blood alcohol might go down; scrapings under fingernails--Δ might wash his hands, etc.), thus no warrant required
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Hot pursuit exception
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Officers in hot pursuit of a Fleeing Felon may make a warrantless search and seizure (even into a dwelling)
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Wiretapping & Eavesdropping
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-Both require a warrant. However, EVERYONE assumes the risk that the person to whom one is speaking is wired or working for the police. (Unrealiable ear exception)
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When is Miranda warning required (two-part test)?
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The Miranda warning is only required prior to "custodial interrogation." 1) Δ is held in custody—at the time of interrogation person is not free to leave, and 2) Δ subject to interrogation —More than the asking of questions; it is any conduct where police knew or should’ve known that they could get a damaging statement from Δ.
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What the Miranda warning says:
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1. You have the right to remain silent. 2. Anything you say can be used against you in a court of law.3. You have the right to have an attorney present now and during any future questioning.4. If you cannot afford an attorney, one will be appointed to you free of charge if you wish.
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When Miranda is NOT required:
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i) Spontaneous Statementsii) Probation Interviews & Routine Traffic Stops (i.e., not custodial)
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Waiver of Miranda Rights must be:
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i) Voluntaryii) Intelligentiii) Knowingiv) NOTE: Where Δ says nothing or just shrugs his shoulders, NO WAIVER
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When does the 5th Amendment Right to Counsel arise?
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Arises ONLY when Δ asks for attorney after hearing Miranda warning. -At any time during interrogation, Δ may assert right to terminate the interrogation and request attorney. - Once asserted, police cannot reinitiate interrogation without presence of the attorney - Covers any topic that may come up in interrogation, not a specific offense
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When does the 6th Amendment Right to Counsel attach?
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A suspect acquires a right to counsel under the Sixth Amendment when a “prosecution is commenced” against him. And this occurs when either of the followinghappens: (1) a prosecutor files a complaint against him, or (2) he is indicted by a grand jury.- Offense specific- Lawyer needs to be present only if Δ is asked about that lawyer’s case.
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Three categories of pre-trial identifications:
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1. Photopack2. Showup (a one-person lineup)3. Lineup
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Two ways to attack pre-trial identifications:
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1) Denial of Right to Counsel:-Post-charge lineups and show ups ALWAYS give rise to a right to counsel- No right to counsel for photographs2) Denial of Due Process- Substantial likelihood of misidentification - Unnecessarily suggestive
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Remedy if a pre-trial identification is successfully attacked:
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The prosecution will not be permitted to introduce evidence at trial that the defendant was identified at a showup or lineup; and excludes any in-court identifications. -EXCEPTION: Independent source—where prosecution can show ample opportunity apart from faulty lineup to identify Δ at time of the crime (i.e., victim spent 40 minutes with the Δ at gunpoint)
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When are bail issues appealeable?
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Immediately
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Is it constitutional to detain someone for preventative measures?
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Yes
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Are states required by the Constitution to use Grand Juries?
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No
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Does a Δ have a right to be present at a Grand Jury Hearing?
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No. Proceedings are secret;-Δ has no right to appear or send witnesses. -No right to silence either if Δ herself is called as witness.
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In that GJs are secret proceedings, who is allowed to be present?
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-Jurors-Prosecutor-Witness (if any)-No court reporter
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May Δ refuse to testify at a GJ?
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No. She may refuse to answer certain questions, but must testify if called as witness.
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Do the FR of Evidence apply at GJ hearings?
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No. -A grand jury witness may be compelled to testify based on illegally seized piece of evidence-Hearsay admissible
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How is a party charged of a crime?
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Once the grand jury decides there’s probable cause, the prosecutor can issue an indictment, a document specifying the felony charge(s) against a particular defendant.
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Right to Unbiased Judge
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i) No financial interest in the outcomeii) No actual malice toward the Δ (i.e., “next time I see you, you’re getting the max” is not malice)
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Right to Jury Trial
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i) Whenever maximum authorized sentence exceeds 6 months = right to jury trialii) Up to and including 6 months = no right to jury trialiii) Sum of sentences for criminal contempt exceeds 6 months = right to jury trial
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Under what constitutional provision does the prohibition of excessive bail fall under?
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8th Amendment
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Jury requirements
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i) At least six and must be unanimous -However Sup Court has recognized non-unanimous jury trials ii) No right to jury of 12iii) Right to have jury pool reflect cross-section of the community BUT no right to have your own cross-section of the community
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Must a verdict be unanimous to be upheld?
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No. The Supreme Court has recognized non-unanimous jury trials (11-1, 10-2 or 9-3) if the respective state law provided, but the court did not specify how low the ratio could constitutionally go.
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Voir Dire
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A preliminary examination of a witness or a juror by a judge or counsel.
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Discrimination in Voir Dire
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It is unconstitutional for prosecutor or defense to exercise preemptive challenges to exclude perspective jurors on account of their race or gender.
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Ineffective Assistance of Counsel
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It is an issue raised in legal malpractice suits and in appeals in criminal cases where a criminal defendant asserts that their criminal conviction occurred because their attorney failed to properly defend the case. i) Deficient performance by counselii) But for such deficiency the Δ would NOT have been convicted
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How are plea bargains evaluated?
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Under Contract theory
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What is colloquy?
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It is a highly formalized conversation among judges and lawyers (as opposed to testimony under oath), that takes place when a D enters into a plea bargain.
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Colloquy requirements
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(1) Court must address the Δ personally ON THE RECORD about:(a) Nature of the charge (it’s sufficient that attorney has explained nature of charges) but(b) Court must state maximum authorized sentence and any mandatory minimum sentences; and (c) Right of Δ to plead not guilty and demand a trial(d) Guilty plea is a waiver of trial(2) If not, Δ is entitled to withdraw plea and plea all over again
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Four basis for withdrawing guilty plea after sentencing:
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(1) Plea was involuntary (i.e., mistake)(2) Lack of jurisdiction(3) Ineffective assistance of counsel(4) Failure of prosecution to keep an agreed upon plea bargain
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Resentencing after successful appeal and reconviction
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As a general rule, Δ may not be given a harsher sentence on retrial after successful appeal.
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Facts on the death penalty:
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a) Any death penalty statute that does not give the Δ a chance to present mitigating facts and circumstances is unconstitutional.b) There can be no automatic category for imposition of the death penalty.c) The state may not, by statute, limit mitigating factors; all relevant mitigating evidence must be admissible or the statute is unconstitutional.d) Only a jury and not a judge may determine the aggravating factors justifying imposition of the death penalty.
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Double Jeopardy Clause (5th Amendment):
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Prohibits state and federal governments from prosecuting individuals for the same crime on more than one occasion, or imposing more than one punishment for a single offense.
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When does jeopardy attach?
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i) At Jury trial: when jury is swornii) At Judge trial: when first witness is sworniii) Does NOT attach when proceedings are civil (it is possible to try a defendant in criminal court and then try the same defendant again in civil court, for the same event).
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Retrial -vs- Mistrial
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In a retrial, a completed trial has been set aside and tried again from scratch as opposed to a mistrial which is terminated prior to its conclusion and then tried again.
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Exceptions Permitting Retrial - (Do not constitute double jeopardy)
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i) Jury cannot agree on verdictii) Mistrials for manifest necessityiii) Retrial after successful appeal is not double jeopardy.iv) When Δ breaches agreed-upon plea bargain - Plea and sentence is vacated- Original charges reinstated
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Manifest Necessity
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A circumstance (as an incurable pleading defect, the unavailability of an essential witness, juror misconduct, or illness of counsel) which is of such an overwhelming and unforeseeable nature that the conduct of trial or reaching of a fair result is impossible and which necessitates the declaration of a mistrial. If there is a manifest necessity for the declaration of a mistrial, the defendant may be retried without violation of the prohibition on double jeopardy.
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Dual Sovereignty Doctrine
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1) When a Δ's conduct violates both federal and state law, a DJ problem will not arise if he is prosecuted by both the federal and state government. 2) Rationale: the federal government and every state is a separate sovereign, and the DJ Clause is intended to prevent multiple prosecutions of a Δ for the same offense by the same sovereign.3) Likewise, DJ does not prevent different states from trying the same offense
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Lesser Included Offenses
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A lesser crime whose elements are encompassed by a greater crime.Two or more offenses can be charged together, regardless of whether they are misdemeanors or felonies, provided that the crimes are of a similar character and based on the same act or common plan. Although the offenses can be charged together, the accused cannot be found guilty of both offenses because they are both parts of the same crime (the lesser offense is part of the greater offense). Similarly, Jeopardy for lesser offense bars retrial for greater offense UNLESS:(a) Δ charged with battery(b) Victim dies; then(c) Δ can be retried for murder
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5th Amendment Privilege against Self-Incrimination
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Guarantees that no person shall be compelled by the government in any criminal case to be a witness (must be testimonial in nature) against himself (it is strictly personal).
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What does the 5th Amendment Privilege protect against?
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i) The 5th Amendment protects against compelled testimony (E.g., lie detector; custodial interrogation)ii) It does NOT protect us from having the state use our bodies in lots of ways to incriminate us (E.g. state can order us to submit hair, urine, blood, or handwriting samples).
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When does the 5th Amendment Privilege against Self-Incrimination apply?
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1. Privilege applies not only to criminal cases, but to any proceeding in which a future criminal prosecution may occur. 2. In civil cases where a witness faces no potential criminal charges (i.e., been tried and acquitted, SOL runs out, etc.), he may be forced to testify.3. Civil cases—party must assert privilege the first time they’re asked a question, or they waive privilege for all subsequent criminal prosecutions
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What persons are protected by the 5th Amendment Privilege against Self-Incrimination?
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Only natural -not legal- persons. i) The 5th Amendment protects against compelled testimony (E.g., lie detector; custodial interrogation)ii) It does NOT protect us from having the state use our bodies in lots of ways to incriminate us (E.g. state can order us to submit hair, urine, blood, or handwriting samples).
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Elimination of 5th Amendment Privilege by Waiver
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If a criminal defendant takes the witness stand, she waives her 5th Amendment privilege as to all legitimate subjects of cross-examination
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How to identify an administrative law bar question:
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1) is there a state or federal "agency" named in the question (boards, dpts, commission); or 2) has the OR legislature or US Congress given authority in a statute to an agency?
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What are the different applicable laws in admin law?
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1) federal or state constitution; 2) OAPA; or 3) FAPA
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What are the 3 different Agency Actions?
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1) Rulemaking 2) Adjudication 3) Investigation
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Legislation that creates an agency is called:
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enabling legislation
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Enabling leg. must have:
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standards
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W/o standards, agency action can be:
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voided
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When an agency action goes beyond the power it is given in its enabling leg. that's called:
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ultra vires
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When an agency in the bar problem is implementing legislative policy in a statute, discuss:
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1) improper delegation of authority in the enabling statute; and/or 2) Ultra vires
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Actions excluded from rulemaking procedures:
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1) internal agency policy; 2)interpretive and policy stmnts; 3)permissible construction of statute or prior rule; 4) rule as no practical impact on any client
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What is the test of when to apply formal rulemaking procedures?
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The specific agency statute in the problem will say: the agency can only make rules "ON THE RECORD" after a hearing
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FAPA Informal Rulemaking requirements:
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1) NOTICE to the public in the Federal Register of terms of proposed rule & description of subjects/issues; 2) public right to COMMENT, writing only; 3) PUBLISH final rule in Fed. Reg w/ stmt of basis and purpose
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OAPA Informal Rulemaking requirements (only method):
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1) NOTICE in Secretary of State Bulletin, at least 21 days before effective date; 2) Content: subject matter & purpose, authority, need, fiscal impact, TPM of public comment, request for alternatives; 3) Public COMMENT, writing only unless 10+ people request oral; 4) File the final rule.
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Exception to the OAPA rule making requirement:
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Temporary Rules: can skip notice and comment if an emergency and failure to act will result in serious prejudice to public. Only lasts 180 days
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Who has Standing to challenge an OR Agency rule making PROCEDURE
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Any person and any organization (if org was adversely affected by rule, was a party to agency proceeding, or if specific statute grants it)
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Where to challenge an OR agency rule making PROCEDURE and other limitations
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File directly with Oregon Court of Appeals; Record on appeal limited to authorizing statute, rule & docs showing procedural compliance; 2 yr SoL
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2 kinds of challenges to a rule:
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SUBSTANTIVE: the rule is ultra vires or unconstitutional. PROCEDURAL: the agency did not comply with the APA notice and comment reqs.
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Agency DEFENSES for failure to comply w/ procedures:
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1) temporary rule; 2) formal procedure not needed, statute didn't say "on the record"; 3) internal agency policy; 4) 2 yr SoL has run
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What are the two issues in agency adjudications:
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Does the client in the problem have a right to a hearing at all? If so, did the agency hearing have enough PROCESS to be fair?
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How does the client know whether he has a right to an admin hearing?
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1) language of the specific agency authorizing statute; 2) Constitution: Procedural Due Process in the 5th and 14th amendments
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When does the client have a constitutional right to a hearing?
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If agency has denied a life, liberty or property interest and agency action will be based on adjudicative facts (who what when where how...) and no emergency exists.
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Magic words triggering FORMAL HEARING for FAPA and OAPA
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FAPA: "on the record after...hearing" (same as for rulemaking). OAPA: "contested case hearing" or "trial type hearing" required.
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What are the FAPA minimum procedural rights for formal hearings? (7)
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1)Written notice of: time place & nature; authority and jd; matters of fact and law asserted. 2) Proof: reliable, probative and substantial evidence. 3) Rules of evidence: generally not applicable, hearsay allowed if probative and not unfair, inadmissible if privileged, irrelevant, immaterial or repetitious 4) Right to examine and x-exam witnesses, present testimony & arguments orally, admit docs, etc. 5) No ex parte communication. 6) Decision Makers: no deference due except credibility determinations; bias and prejudgment not allowed. 7) Final order must be in writing, detailed enough to permits review by courts
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What are the OAPA minimum procedural rights for formal hearings?
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1. written notice (same as FAPA). 2. right to counsel. 3. discovery 4. no ex parte, if occurs, put on record (FAPA) 5. relaxed rules of evidence 6. oral argument 7. right to examine Ws 8. unbiased decision maker 9. final order in writing w/ details 10. substantial evidence on the record to support decision 11. right to judicial review
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OAPA admissibility of evidence standard:
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allowed if "relied upon by reasonably prudent persons in the conduct of their serious affairs"
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Hearsay admissibility in OAPA hearings:
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If it is the only evidence, may not constitute "substantial evidence" especially if consequences are great.
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Constitutional Due Process Reqs for hearings:
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1. Notice 2. Opportunity to be heard 3. Impartial decision maker.
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What is the balancing test for opportunity to be heard?
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1. individual interest (property, liberty, etc) 2. risk of erroneous deprivation & extent to which more process safeguards would reduce that risk 3. governmental interest (usually cost) of additional process
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When is a predeprivation hearing required?
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Balancing test: the more critical the benefit being taken away by the agency is for survival, the more likely the court is to require a pre-termination hearing
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5th Amendment bars agencies from requiring businesses to keep records when:
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1. no statute requires it 2. there are no "public aspects" to the info 3. agency is only requiring this of a selective group inherently suspect of crime. EXCEPTION: agency may require gov regulated biz keep records because they are "quasi-public" records
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When does the 4th Amendment require a warrant prior to search by agency?
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1. for non public area of biz (but lesser standard of probably cause) 2. agency must sow: reason to inspect this category of biz
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Exceptions to search warrant requirement for agency search:
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1. heavily regulated biz 2. search is in a public area of the biz, or 3. non-intrusive inspection
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The 4th Amendment does not bar subpoenas when:
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1. inquiry is within agency's authority (by statute) 2. subpoena is specific and not excessively vague 3. it is reasonably relevant 4. not an undue burden on person or biz.
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Two ways to obtain info from agencies:
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Freedom of Information Act & Sunshine Act.
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Sunshine Act:
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Applies to agencies with 2+ members, requires all meetings be announced one week in advance and be open to the public.
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Exceptions to Right of Judicial Review:
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1. appellant lacks standing 2. has missed the statute of limitations 3. does not have final agency decision 4. has not exhausted administrative remedies 5. it's not ripe for review
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Federal Agency, constitutional standard for standing:
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Injury in fact + causation + redressibilty
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OAPA Statute of Limitations
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Rulemaking: 2yrs for procedural errors. Adjudication: 60 days.
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Exceptions to the exhaustion requirement for appealing to court:
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The administrative remedy is inadequate or futile, or will result in irreparable harm. (NOTE: an agency hearing cannot overturn or change an agency reg., so if challenging constitutionality can go right to court OR if hearing wouldn't take place until too late.
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Where do you seek review:
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FEDERAL: 1. where agency statute says 2. if statute is silent, FAPA says court of appeals on final agency order, or 3. if not final order, Fed. district court for declaratory or injunctive relief.OAPA: 1. appeals of final agency orders --> OR Court of Appeals; 2. If no need to exhaust --> state circuit court
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FAPA and OAPA: Review of FACTUAL findings
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1. Formal rule making and adjudication: findings must be supported by substantial evidence in the hearing record. TEST: Record as a whole would permit a reasonable person to make the finding. INFORMAL: test is abuse of discretion.
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Review of LEGAL conclusions
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1. Agency interpreting own statute: Courts will give deference to agency's reasonable construction of an unambiguous statute implemented by that agency. 2. Otherwise, no deference. Error of Law standard. Reviewing court may decide de novo whether law was applied correctly.
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Definition of Relevant Evidence
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Evidence that tends to make a material fact more or less probable than it would be without the evidence (e.g., pleadings, elements, defenses)
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Under the Rule 403 Balancing Test, relevant evidence may be excluded if __________ [OR distinction?]
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The probative value is substantially outweighed by danger of (i) unfair prejudice, (ii) confusion of the issues, (iii) misleading the jury, (iv) undue delay (v) cumulative evidence, or (vi) waste of time [OR: all of the above except waste of time]
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What is the standard of review for a judge's decision to admit or exclude evidence?
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abuse of discretion
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What is Character Evidence
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Evidence of a person's general propensity or disposition for a particular trait
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General Rule for Character Evidence - Civil Cases
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Character evidence is INADMISSIBLE to prove conduct in conformity therewith
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Exception to the general rule for character evidence - Civil Cases
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Character evidence (via Specific Acts, Opinion, and/or Reputation) admissible where character is in issue - i.e., where character is an essential element of a cause of action, claim, or defense
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Under the exception to the general rule, what character evidence may be admitted in a civil Defamation proceeding?
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Evidence of the plaintiff's character for dishonesty via R, O, SA
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Under the exception to the general rule, what character evidence may be admitted in a civil Child Custody proceeding?
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Evidence of the character of the Parents fitness to raise children
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Under the exception to the general rule, what character evidence may be admitted in a civil Negligent Entrustment proceeding? (e.g., Plaintiff sues Defendant-Entrustor for negligently allowing TP-Entrustee to drive D's automobile)
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Evidence off the Entrustee's character
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Under the exception to the general rule, what character evidence may be admitted in a civil Negligent Hiring proceeding?
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Evidence of the Employee's character
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Under the exception to the general rule, what character evidence may be admitted in a civil Fraud/Misrepresentation proceeding?
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Evidence of the Defendant's character for honesty
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Under the exception to the general rule, what character evidence may be admitted in a civil Wrongful Death proceeding?
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Evidence by decedent's spouse that decedent was a loving, caring spouse is admissible to show damages
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Under the exception to the general rule, what character evidence may be admitted in a civil Asssault & Battery proceeding? [OR distinction]
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OR: Where self-defense is pleaded, evidence of either party's character for violent behavior is admissible FRE: character evidence not admissible in civil assault/battery proceeding
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General Rule for Character Evidence - Criminal Cases
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Prosecution may not initially introduce evidence of a D's bad character
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When may the Prosecution in a Criminal Case for Assault, Battery, or Homicide introduce Character Evidence of D's bad character? [OR distinction]
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- Where D first opens the door with Reputation or Opinion evidence of D's good character for a trait relevant in proving D's innocence - [under FRE only] Where D opens door with R/O evidence of the victim's bad character for violence as evidence that the victim was the first aggressor to prove self defense claim, the prosecution may rebut with evidence of D's bad character for that same trait
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Murder trial, D claimes self defense. To show reasonable fear, D testifies he was afraid of victim b/c last month victim pulled a gun on him. Under OR & FRE, Admissible or Inadmissible?
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Admissible under FRE and OR even though SA evidence. Prosecution may rebut with R or O evidence of the victim's good character for peacefulness, but not of D's character for violence. [in FRE, only in homicide cases, but in OR this is true for all criminal cases in rebuttal to "victim attacked first" evidence]
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Criminal Assault case. D asserts self defense, claiming victim was first aggressor. During case-in-chief, prosecution offers evidence that victim has a reputation for being gentle and peaceful. Under OR & FRE, Admissible or Inadmissible?
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Inadmissable under both FRE and OR because prosecution cannot be first to introduce character evidence of the victim.
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Criminal Assault case. On Cross of prosecution witness, D elicits testimony that the victim attacked first. Under OR & FRE, may the prosecution now offer reputation evidence of victim's peaceful character to rebut?
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FRE - NO, Inadmissible because (i) this is an assault case, not a homicide case, and (ii) because D did not otherwise open door to this evidence by introducing character evidence of the victim's bad character OR - YES, Admissible to rebut "victim attacked first" evidence in any criminal case
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CRIM CASE: Where D offers evidence R/O evidence of his good character, --> Prosecution may offer ...
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R/O evidence of D's bad character for the same trait
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CRIM CASE: Where D offers R/O evidence of victim's bad character, ---> Prosecution may offer ... [OR distinction]
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Evidence of victim's good character for the same trait (under both FRE and OR) Evidence of D's bad character for the same trait (FRE only)
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CRIM HOMICIDE CASE: D offers R/O/SA evidence that victim was the first aggressor --> Prosecution may offer... [OR distinction]
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Evidence of victim's peaceful character, even though D has ofered no character evidence at all [OR: applies in all qualifying crim cases]
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Civil & Crim Cases involving Sex Offense: General Rule for admissibility of evidence re victim's past sexual behavior or alleged sexual predisposition
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Rape Shield Law: Broad rule of exclusion - in any civil/crim proceeding involving alleged sexual misconduct, evidence offered to show the victim's sexual behivor, sexual predisposition (e.g., lifestyle, clothing, manner of speech), and other sexual history is excluded.
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CRIM CASES: Exception to the general rule in sex offense cases of admissibility of evidence re victim's sexual behavior/predisposition
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R/O evidence never admissible Specific Acts evidence admissible in 3 situations where notice given to opposing party: (1) Past Acts w/D tending to show consent(2) Past acts w/other men to show D was not source of semen(3) If exclusion would violate any constitutional right of D
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CIVIL CASES: Exception to general rule in sex offenses cases of admissibility of evidence re victim's sexual behavior/predisposition
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Balancing Test. R/O/SA evidence admissible if probative value substantially outweights the harm to the victim or danger of unfair prejudice to any party.
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General Rule re Specific Acts character evidence (e.g., evidence of other crimes, wrongs, or acts)
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Character evidence (other crimes or bad acts) is NEVER admissible when offered only to show criminal disposition or propensity.
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Exception to rule for admissibility of SA character evidence
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EVidence of character may be admissible when offered for a purpose other than to show conduct in conformity with one's character
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Circumstantial evidence of other crimes, wrongs, or acts may be admissible when offered to prove what? [OR distinction]
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Motive Intent Mistake (absence of) Identity Common plan or scheme (subject to rule 403 balancing test) [OR: + bad acts evidence to show pattern or history of abuse of a person - e.g., evidence of battered women's syndrome admissible to explain a witness' behavior]
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What are the two types of presumptions?
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(a) Rebuttable presumptions (b) Conclusive presumptions
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A person is presumed dead in action action involving the property of such person, the contractual or property right contingent upon his death, or the administration of his estate if what conditions are satisfied?
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(1) The person ins inexplicably absent for a continuous period of 7 years [death deemed to have occured on the last day of the 7-year period], AND (2) The person has not been heard from, or of, by those with whom he would normally be expected to communicate
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Burden of Proof - definition
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"Burden of Proof" encompasses two separate burdens: 1. The Burden of Production (i.e., the burden of producing evidence): The burden to introduce sufficient evidence to avoid judgment against the party as a matter of law. (may shift during trial) 2. The Burden of Persuasion (Proof) (remains on the same party the entire trial; jury question)
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Means of proof for impeachment by prior conviction
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Usually may be shown by either an admission on direct or corss of the witness or by introducing a record of the judgment. No foundation need be maid. Note, however, that when a witness is being croxx-examined about prior convinctions the questions must be asked in good faith (i.e., with a reasonable belief as to the existence of the conviction). Improper questioning may be grounds for a mistrial.
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When may the court disallow as impeachment evidence a recent prior conviction involving dishonesty or false statement?
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Never (unless its been 10 years since date of conviction or release from confinement(?))
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When is a prior felony conviction not involving dishonesty admissible against a criminal defendant?
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When the conviction's probative value as impeachment outweighs the prejudicial effect
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Before a prior inconsistent statement may be proved by extrinsic evidence, two requirements must be met. What are they?
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(1) Foundation - proper one must be laid;(2) Relevance - the statement must be relevant to some issue in the case, i.e., it cannot be a collateral matter
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When do the FRE permit a party to cross examine a witness regarding the witness's prior act of misconduct? In what form of evidence?
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Only through testimony on cross-examination where it is probative of truthfulness (i.e., where it is an act of deceit or lying) No extrinsic evidence
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Judicial notice - what facts appropriate?
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When the fact is indisputable or can be verified through scientific principles
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Assuming judicial notice has been taken, what is the effect?
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In a criminal case, the jury may accept the fact judicially noticed In a civil case, the jury must accept the fact judicially noticed
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What is habit evidence to show?
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That the person acted in conformity with that habit on the relevant occasion
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Six Impeachment Methods
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1. PINS (prior inconsistent statements)2. Bias3. Prior Criminal Convictions4. Prior Bad Acts5. Reputation for Untruthfulness6. Contradiction of the witness' testimony
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How may PINS evidence be introduced?
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May be used for impeachment purposes and elicitied on cross or through extrinsic evidence - Extrinisic evidence of PINS not admissible if on a collateral matter - W must be given opportunity to comment on the prior inconsistent statement, but may be either before or after the evidence is introduced - If the PINS also qualifies as an admission, no comment allowance is necessary
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How may Bias evidence be introduced?
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Impeachment evidence elicited during cross or by extrinsic evidence
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Prior Convictions for Impeachment
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Impeachment during cross or by extrinisic evidence - Any prior conviction, felony or misdemeanor, involving dishonesty or false statement can always be used to impeach (no judge discretion) - Any other felony can be used to impeach unless the judge finds its too prejudicial
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Prior Bad Acts evidence for Impeachment
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Specific acts of misconduct in the past that did not result in a conviction may be inquired into for impeachment purposes if - bearing on truthfulness- elicited on cross (no extrinsic evidence)
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Contradiction evidence for Impeachment
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Extrinisic evidence not allowed on collateral matters
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Three common types of nonhearsay b/c not offered for the truth of the matter asserted
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1. Verbal Acts (words forming a k)2. Statements to show knowledge on a part of a listener when knowledge of the listener is a relevant issue in the case3. Prior inconsistent statement offered to impeach
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Nonhearsay per the FRE
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1. Party Admissions2. Prior inconsistent statement of witness given under oath (admissible as substantive evidence)3. Prior identification given by a witness in the current case
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Hearsay exceptions - the big 9
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1. Present Sense Impression2. Excited Utterence3. Statements showing the state of mind or physical condition of the speaker4. Statements made for purposes of medical treatment or diagnosis5. Recorded Recollection6. Business Records7. Former Testimony8. Dying Declarations9. Statements Against Interest First 6 - availability nonmateriallast 3 - must be unavailable
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Spousal Privilege rules
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- In Fed ct in a crim case, a spouse cannot be forced to testify against another spouse A spouse can testify if they want to It doesnt matter what the evidence is or when the spouse learned about the evidence - In Fed ct in civil/crim case a spouse can keep the other from testifying re confidential communications during the marriage |
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