Mbe Total

Front 1

TORTS

Back 1

TORTS

Front 2

Types of intentional torts

Back 2

[1] Battery; [2] Assault; [3] False Imprisonment; [4] IIED

Front 3

Types of intentional torts to property

Back 3

[1] Trespass to Chattels; [2] Trespass to Land; [3] Conversion

Front 4

Types of Defenses to Intentional Torts

Back 4

[1] Consent; [2] Self-Defense, Defense of others, Defense of Property

Front 5

Transferred only applies in the following situations (must be the original tort and the transferred tort)

Back 5

[1] Assault; [2] Battery; [3] False imprisonment; [4] Trespass to land; [5] Trespass to chattels

Front 6

Causation is satisfied if Δ’s conduct was a __________ in bringing about the injury

Back 6

Substantial factor

Front 7

Elements of battery

Back 7

[1] harmful or offensive contact; [2] to Π’s person; [3] Intent; [4] Causation

Front 8

What standard is used for harmful or offensive contact (element of battery)?

Back 8

Reasonable person standard

Front 9

Is contact considered offensive if consented to? What about ordinary contacts of everyday life?

Back 9

No. Also, there is implied consent for ordinary contacts of everyday life.

Front 10

Elements of assault

Back 10

[1] an act by Δ creating a reasonable apprehension in Π; [2] of immediate harmful or offensive contract to Π’s person; [3] Intent; [4] Causation

Front 11

Are words enough for assault?

Back 11

No. words must be coupled w/ conduct

Front 12

Elements of false imprisonment

Back 12

[1] an act or omission on the part of Δ that confines or restrains Π; [2] to a bounded area; [3] intent; [4] causation

Front 13

What are sufficient methods of confinement or restraint for false imprisonment?

Back 13

[1] physical barriers, [2] physical force; [3] threats of force; [4] failure to release; [5] invalid use of legal authority

Front 14

In order to be false imprisoned, does Π have to know about it?

Back 14

Yes

Front 15

Elements of Intentional Infliction of Emotional Distress (IIED)

Back 15

[1] An act by Δ amounting to extreme and outrageous conduct; [2] intent or recklessness; [3] causation; [4] Damages – severe emotional distress

Front 16

Normal conduct can become outrageous in three situations:

Back 16

[1] continuous in nature; [2] directed toward certain type of Π (kids, old people, pregnant ladies, supersensitive adults known to be supersensitive

Front 17

What is the only intentional tort to the person that requires damages?

Back 17

IIED

Front 18

How can a bystander recover under IIED?

Back 18

Either by: prima facie elements of IIED; or that [1] she was present when injury occurred; [2] she is close relative to injured person; and [3] Δ knew facts [1] & [2]

Front 19

What’s the fallback tort position?

Back 19

IIED

Front 20

Elements of Trespass to Land

Back 20

[1] Physical Invasion of Π’s real property; [2] Intent; [3] Causation

Front 21

Elements of Trespass to Chattels

Back 21

[1] An act by Δ that interferes w/ Π’s right of possession in a chattel; [2] Intent; [3] Causation; and [4] Damages

Front 22

What are two types of interference w/ Chattels?

Back 22

Intermeddling or dispossession

Front 23

Elements of Conversion

Back 23

[1] An act by Δ that interferes with Π’s right of possession in a chattel; [2] The interference is so serious that it warrants requiring Δ to pay the chattel’s full value; [3] Intent; [4] Causation

Front 24

What are examples of acts that would be conversion?

Back 24

Theft, wrongful transfer, wrongful detention, substantially changing, severely damaging, or misusing a chattel.

Front 25

What can a Π recover in Conversion?

Back 25

Damages (FMV) or possession

Front 26

What is the Act by Δ necessary for [1] Trespass to Chattels; and [2] Conversion?

Back 26

[1] An interference w/ Π’s right of possession of chattel (either intermeddling or dispossession); [2] AN interference w/ Π’s right of possession so serious as to warrant that Δ pay the chattel’s full value

Front 27

What is the Intent necessary for [1] Trespass to Chattels; and [2] Conversion?

Back 27

[1] Intent to do the act that brings about the interference; [2] Intent to do the act that brings about the interference

Front 28

What is the remedy necessary for [1] Trespass to Chattels; and [2] Conversion?

Back 28

[1] Recovery of actual damages from harm to chattel or loss of use (if dispossession, damages based on rental value); [2] Damage award of FMV of chattel at time of conversion (i.e., forced sale of chattel). May instead recovery chattel (replevin)

Front 29

Two questions to ask in Consent fact patterns

Back 29

[1] Was there a valid consent (no fraud)? [2] Did Δ stay w/in boundaries of consent (not use gun in boxing match)?

Front 30

Generally, a Δ is not liable if Π expressly consents to Δ’s conduct. What are the exceptions?

Back 30

[1] Mistake will undo express consent if Δ knew of and took advantage of the mistake; [2] Consent induced by fraud will be invalidated if it goes to an essential matter, but not a collateral matter; [3] consent obtained by duress will be invalidated unless the duress is only threats of future action or future economic deprivation.

Front 31

Can individuals without capacity consent?

Back 31

No. ex: incompetents, drunks, young kids

Front 32

When dealing w/ fact patterns concerning any kind of defense, what three questions should be asked?

Back 32

[1] Is privilege available? Tort must now be or about to be committed. Already committed torts do not qualify. [2] Is a mistake permissible as to whether the tort being defended against (battery, trespass, etc.) is actually being committed? [3] Was a proper amount of force used?

Front 33

How is the requirement of capacity different for express consent than from the intent element of intentional torts?

Back 33

Not everyone has capacity to consent to a tort. But incapacity is no defense because everyone (even young child) has capacity to commit a tort.

Front 34

When can someone use self-defense?

Back 34

When a person reasonably believes that she is being or is about to be attacked, she may use such force as is reasonably necessary to protect against injury.

Front 35

Is mistake allowed in self-defense?

Back 35

A reasonable mistake as to the existence of danger

Front 36

How much force is allowed in self-defense?

Back 36

Only that force that reasonably appears to be necessary to prevent the harm (including deadly force).

Front 37

When is defense of others available?

Back 37

When the actor reasonably believes that the other person could have used force to defend himself.

Front 38

Is mistake allowed in defense of others?

Back 38

A reasonable mistake is permitted

Front 39

When is defense of property available?

Back 39

One may use reasonable force to prevent the commission of a tort against her real or personal property. A request to desist must be made. No force after tort was committed. One may use force in hot pursuit.

Front 40

Is defense of property available against one who has a privilege?

Back 40

NO. Whenever an actor has a privilege to enter on to the land of another b/c of necessity, recapture of chattels, etc., that privilege will supersede the privilege of the land possessor to defend her property.

Front 41

Is a mistake allowed as to whether or not a person has a privilege to enter land when defense of property is undertaken?

Back 41

No.

Front 42

When can force be used to recapture chattels?

Back 42

Only when in hot pursuit of one who has obtained possession wrongfully (e.g., theft)

Front 43

What are the limitations of force being used to recapture chattel?

Back 43

[1] Timely demand is required; [2] Recovery only from wrongdoer; [3] Entry on land to remove chattel – (a) can enter wrongdoer’s land; (b) Innocent party’s land – notice must be given and it must be done at a reasonable time; (c) if owner’s fault, then only through legal process

Front 44

Is mistake allowed to recapture chattels or enter land?

Back 44

No Mistake allowed. But shopkeepers have privilege to retain for reasonable time.

Front 45

What type of torts is necessity a defense for?

Back 45

Property torts

Front 46

What are the elements of defamation?

Back 46

[1] Defamatory language; [2] Of or concerning the Π; [3] Publication thereof by Δ to a third person; [4] Damage to Π’s reputation

Front 47

What are the elements of defamation that involve a matter of public concern?

Back 47

[1] Defamatory language; [2] Of or concerning the Π; [3] Publication thereof by Δ to a third person; [4] Damage to Π’s reputation; [5] Falsity of the defamatory language; [6] Fault on the part of Δ

Front 48

What does publication mean?

Back 48

Communication of the defamation to someone other than the Π. Such publication can be made either intentionally or negligently. It is the intent to publish, not the intent to defame, that is the requisite intent.

Front 49

What is libel? What are the damages?

Back 49

Written or printed publication of defamatory language. Π does not need to prove special damages and general damages are presumed. If original defamation is libel, any repetition, even if oral, is also libel.

Front 50

What is slander? What damages must be proved.

Back 50

Spoken defamation. Special damages must proved unless defamation falls under slander per se categories

Front 51

What are the slander per se categories?

Back 51

Defamatory statements that: [1] adversely reflect on one’s conduct in a business or profession; [2] One has a loathsome disease; [3] One is or was guilty of a crime involving moral turpitude; or [4] a woman is unchaste

Front 52

If a statement of public interest is true, does Π have cause of action for defamation? Are there any other causes of action?

Back 52

No cause of action for defamation. But consider IIED or invasion of right to privacy (unless Π is a public figure)

Front 53

What is the level of fault that a public figure or public official must prove?

Back 53

Malice.

Front 54

What is malice?

Back 54

[1] Knowledge that the statement was false; or [2] reckless disregard as to whether it was false. SUBJECTIVE TEST

Front 55

What is the level of fault that a private person must prove?

Back 55

Negligence regarding the falsity must be proved if the statement involves a matter of public concern. (If not a matter of public concern, C’l restrictions do not apply).

Front 56

In defamation cases brought by a private person, what damages are recoverable when [1] The Δ is negligent? [2] The Δ acted with malice?

Back 56

[1] Negligent  only actual injury damages are recoverable; [2] Malice  damages may be presumed and punitive damages are allowed

Front 57

For a PUBLIC OFFICIAL or PUBLIC FIGURE, [1] What is the Fault required? [2] What are the damages recoverable?

Back 57

[1] Actual Malice (knowledge of falsity or reckless disregard as to truth or falsity; [2] Presumed damages under CL rules (and punitive damages where appropriate)

Front 58

For a PRIVATE PERSON and matter of PUBLIC concern, [1] What is the Fault required? [2] What are the damages recoverable?

Back 58

[1] At least negligence as to statement’s truth or falsity; [2] Damages only for proved “actual injury” (if Π proves actual malice, presumed and punitive damages may be available)

Front 59

For a PRIVATE PERSON and a matter of PRIVATE CONCERN, [1] What is the Fault required? [2] What are the damages recoverable?

Back 59

[1] No fault as to truth or falsity need be proved; [2] Presumed damages under CL rules (and punitive damages where appropriate)

Front 60

What are defenses to defamation?

Back 60

[1] Consent – complete defense. [2] Truth – complete defense when Π doesn’t need to prove falsity (statement is about a purely private matter)

Front 61

Does Π need to prove falsity in a CL defamation case?

Back 61

No, b/c defamatory statements are presumed to be false; Δ has burden to prove truth as a defense.

Front 62

What absolute privileges will protect a Δ in defamation cases?

Back 62

Statements made in judicial proceedings, legislators in debate, federal executive officials, compelled broadcasts, between spouses

Front 63

What are the four branches of invasion of right to privacy?

Back 63

[1] Appropriation of Π’s picture or name; [2] intrusion upon Π’s affairs or seclusion; [3] publication of facts placing Π in false light; [4] public disclosure of private facts about Π.

Front 64

What are defenses to invasion of right to privacy?

Back 64

Consent and defamation privilege defenses

Front 65

What are the elements of Intentional Misrepresentation (fraud, deceit)?

Back 65

[1] misrepresentation of material fact; [2] Scienter – knew or believed it was false; [3] intent to induce Π to act or refrain from acting in reliance upon misrep; [4] Causation; [5] Justifiable reliance; and [6] Damages (actual pecuniary loss)

Front 66

What are the defenses to intentional misrepresentation?

Back 66

There are none

Front 67

What are elements of negligent misrepresentation?

Back 67

[1] misrepresentation by Δ in business or professional capacity (commercial setting); [2] Breach of Duty toward particular Π; [3] causation; [4] justifiable reliance; [5] Damages

Front 68

Elements of malicious prosecution

Back 68

[1] institution of criminal proceedings against Π; [2] termination in Π’s favor; [3] absence of PC; [4] improper purpose; [5] damages

Front 69

What are elements of abuse of process?

Back 69

[1] wrongful use of process for an ulterior motive; [2] definite act or threat against Π in order to accomplish an ulterior purpose

Front 70

What are elements of Interference w/ Business Relations?

Back 70

[1] Existence of a valid contractual relationship between Π and 3rd party or valid business expectancy of Π; [2] Δ’s knowledge of the relationship or expectancy; [3] intentional interference by Δ inducing a breach or termination of the relationship or expectancy; and [4] damages

Front 71

What are the elements of negligence?

Back 71

[1] Duty on part of Δ to conform to a specific standard of conduct for protection of Π against an unreasonable risk of injury; [2] a breach of that duty by Δ; [3] breach is actual and proximate cause of Π’s injury; and [4] damage.

Front 72

What’s the basic standard of care for negligence?

Back 72

The Reasonable Person – objective standard

Front 73

Is there a duty to protect those off the premises from natural conditions? From artificial conditions?

Back 73

Not from natural conditions. But there is duty to protect from unreasonably dangerous artificial conditions or structures abutting adjacent land.

Front 74

In urban areas, are owners liable for damages caused off the premises by trees on the premises?

Back 74

Yes

Front 75

What is the duty to undiscovered trespassers?

Back 75

No duty is owed to undisclosed trespassers.

Front 76

What is the duty to discovered trespassers?

Back 76

Landowner must [1] Warn or make safe concealed, unsafe, artificial conditions known to the landowner involving risk of death or serious bodily harm, and [2] use reasonable care in the exercise of “active operations” on the property

Front 77

What are the elements of attractive nuisance doctrine?

Back 77

Π must show: [1] dangerous condition on the land that the owner is or should be aware of; [2] the owner knows or should know children frequent the vicinity of the condition; [3] the condition is likely to cause injury; [4] the expense remedying the situation is slight compared with the magnitude of the risk. [a child does NOT have to be attracted onto the land by the dangerous condition, nor is the attraction alone enough for liability]

Front 78

What is a licensee?

Back 78

One who enters onto the land w/ possessor’s permission for her own purpose or business, rather than for the possessor’s benefit. A social guest is a licensee.

Front 79

What is the duty owed to licensees?

Back 79

Possessor has a duty to [1] warn of dangerous conditions (natural or artificial) known to the owner that create an unreasonable risk of harm to the licensee and that licensee is unlikely to discover, and [2] exercise reasonable care in the conduct of “active operations” on the property. Possessor has NO DUTY TO INSPECT OR REPAIR

Front 80

What is an invitee?

Back 80

One who enters for a purpose connected with the business of the landowner or enters as a member of the public for a purpose for which the land is held open to the public. One can lose invitee status if she exceeds the scope of the invitation.

Front 81

What is the duty owed to an invitee?

Back 81

Same duty owed to licensee PLUS a duty to make reasonable inspections to discover nonobvious dangerous conditions and, thereafter, make them safe.

Front 82

What is the modern trend regarding licensees and invitees?

Back 82

Rejects them.

Front 83

If a guest of a tenant is injured, is the landlord liable?

Back 83

Yes. But keep going in analysis and determine if tenant is also liable to the guest b/c of the tenant’s status as the owner/occupier of the premises.

Front 84

What are the duties of a vendor of realty?

Back 84

Vendor must disclose to the vendee concealed, unreasonably dangerous conditions o f which the vendor knows or has reason to know, and which he knows the vendee is not likely to discover on a reasonable inspection.

Front 85

When can a statute’s specific duty replace the more general CL duty of care?

Back 85

If: [1] statute provides for a criminal penalty; [2] statute clearly defines the standard of conduct; [3] Π is within the protected class; [4] statute was designed to prevent the type of harm suffered by Π.

Front 86

When is the duty to avoid causing emotional distress to another breached?

Back 86

When Δ creates a foreseeable risk of physical injury to Π, either by: [1] causing a threat of physical impact that leads to emotional distress, or [2] directly causing severe emotional distress that by itself is likely to result in physical symptoms.

Front 87

What is the injury requirement for NIED?

Back 87

Only if Δ’s conduct caused some physical injury.

Front 88

What are the two situations where physically injury is not required in NIED?

Back 88

Erroneous report of relative’s death and mishandling of a relative’s corpse.

Front 89

What is the conduct required for [1] IIED; [2] NIED?

Back 89

[1] Extreme and outrageous conduct by Δ; [2] Subjecting Π to threat of physical impact or severe emotional distress likely to cause physical symptoms

Front 90

What is the fault required for [1] IIED; [2] NIED?

Back 90

[1] Intent to cause severe emotional distress or recklessness as to the effect of conduct; [2] Negligence in creating risk of physical injury to Π

Front 91

What are the causation and damages required for [1] IIED; [2] NIED?

Back 91

[1] Δ’s conduct must cause severe emotional distress; [2] Δ’s conduct generally must cause tangible physical injury (e.g., miscarriage)

Front 92

When is bystander recovery for when another is physically injured allowed for [1] IIED; [2] NIED?

Back 92

[1] Π bystander must be present when injury occurs and be a close relative of the injured person, and Δ must know these facts when he intentionally injures the other person (or Δ must have intent to cause Π distress); [2] Π bystander must be within the zone of danger created by Δ’s negligent misconduct (i.e., must be subjected to threat of impact). Modern trend allows recovery based on foreseeability factors

Front 93

Generally, one does not have a legal duty to act. What are the exceptions?

Back 93

[1] Assumption of duty by acting; [2] Peril due to Δ’s conduct; [3] Special relationship between parties; [4] Duty to control 3rd persons

Front 94

What theories can a Π use to prove breach of duty?

Back 94

[1] Custom or usage; [2] Violation of statute (neg per se); [3] Res Ipsa Loquitur

Front 95

What does Π have to prove for liability to attach?

Back 95

Actual cause and proximate cause

Front 96

What’s the difference between joint cause approach (substantial factor test) and Alternative Causes approach?

Back 96

Under joint causes approach, both parties caused the harm. Under the alternative causes approach, although both parties acted negligently, only one caused the harm.

Front 97

What is the general rule for proximate cause (legal causation)?

Back 97

A Δ generally is liable for all harmful results that are the normal incidents of and within the increased risk caused by his cats. This is a foreseeability test.

Front 98

If the answer choice turns on the proximate cause issue, the correct answer choice will almost always be phrased in …

Back 98

“if” or “unless” terms (e.g., Π will prevail if it was reasonably foreseeable that …” or “Δ will not be liable unless he should have foreseen that…”

Front 99

Δ is liable where his negligence caused ________ or ________

Back 99

Where his negligence caused a foreseeable harmful response or reaction from a dependent intervening force or created a foreseeable risk that an independent force would harm Π.

Front 100

What dependent intervening forces are almost always foreseeable?

Back 100

[1] negligence of rescuers; [2] subsequent medical malpractice; [3] efforts to protect the person or property of oneself or another; [4] injuries caused by another reacting to Δ’s actions; [5] subsequent diseases caused by a weakened condition; and [6] subsequent accident substantially caused by the original injury.

Front 101

What are examples of independent intervening forces?

Back 101

Negligent acts of 3rd persons; [2] crimes and intentional torts of 3rd persons; [3] acts of God

Front 102

What does independent intervening force mean?

Back 102

They are not a natural response or reaction to the situation created by Δ’s conduct, but may be foreseeable if Δ’s negligence increased the risk of harm from these forces.

Front 103

Are damages reduced if a Π receives $ from another source?

Back 103

No

Front 104

What are the requirements of assumption of the risk?

Back 104

Π must have [1] known of the risk; and [2] voluntarily proceeded in the face of the risk

Front 105

What’s the default defense to negligence on MBE?

Back 105

Pure comparative negligence

Front 106

What is the definition of: [1] Contributory Negligence; [2] Implied Assumption of Risk; [3] Pure Comparative Negligence; [4] Partial Comparative Negligence?

Back 106

[1] Π’s own negligence contributes to her injury; [2] Π knew of a risk and voluntarily assumed it; [3] Π’s own negligence contributes to her injury; [4] Π’s own negligence contributes to her injury

Front 107

What is the Effect of using: [1] Contributory Negligence; [2] Implied Assumption of Risk; [3] Pure Comparative Negligence; [4] Partial Comparative Negligence?

Back 107

[1] Π’s claim completely barred; [2] Π’s claim completely barred; [3] Π’s damage award reduced by % of fault attributable to her; [4] Π’s damage award reduced if her fault is below the threshold level; otherwise, Π’s claims are barred

Front 108

Are the following defenses negated by Δ’s Last Clear Chance: [1] Contributory Negligence; [2] Implied Assumption of Risk; [3] Pure Comparative Negligence; [4] Partial Comparative Negligence?

Back 108

[1] Yes; [2] N/A; [3] N/A; [4] N/A

Front 109

Do any of the following apply to Wanton or Reckless Tortious Conduct: [1] Contributory Negligence; [2] Implied Assumption of Risk; [3] Pure Comparative Negligence; [4] Partial Comparative Negligence?

Back 109

[1] No; [2] Yes; [3] Yes; [4] Yes

Front 110

What are the elements of Strict Liability?

Back 110

[1] Existence of an absolute duty on the part of the Δ to make safe; [2] Breach of that duty; [3] The breach of the duty was the actual and proximate cause of the Π’s injury; and [4] damage to the Π’s person or property

Front 111

What are the three requirements for application of Strict Liability to Ultrahazardous Activities?

Back 111

[1] the activity must involve risk of serious harm to persons or property; [2] the activity must be one that cannot be performed without serious harm no matter how much care is taken; and [3] the activity is not commonly engaged in the particular community (blasting, manufacturing explosives, etc.)

Front 112

What are the 5 theories of product liability?

Back 112

[1] Intent; [2] Negligence; [3] strict liability; [4] implied warranties of merchantability and fitness for a particular purpose; [5] representation theories (express warranty and misrepresentation)

Front 113

Which theory of product liability is the easiest to prove?

Back 113

Strict liability – use this if the question doesn’t indicate what theory Π is using

Front 114

What elements are necessary for any products liability claim?

Back 114

[1] A defect and [2] existence of the defect when the product left Δ’s control.

Front 115

What are the types of defects that give way to products liability claims?

Back 115

[1] manufacturing defects; [2] design defects; [3] inadequate warnings

Front 116

How do you prove a manufacturing defect?

Back 116

Show that product failed to perform as safely as an ordinary consumer would expect. (works for defective food products claims, too)

Front 117

How do you prove a design defect?

Back 117

Δ could have made product safer, w/o serious impact on the product’s price or utility

Front 118

What does compliance and noncompliance with government standards show in products liability claims?

Back 118

Noncompliance establishes that it was defective. Compliance is evidence, but not conclusive, that the product is not defective.

Front 119

Does it matter in products liability cases if there was no privity?

Back 119

No. But it will be a favorite MBE wrong choice. Any foreseeable Π, including a bystander, can sue any commercial supplier in the chain of distribution regardless of the absence of a contractual relationship between them.

Front 120

Who can sue in products liability cases under the theory of negligence? What must they show?

Back 120

Users, consumers, bystanders. Must show same as negligence – duty, breach, actual & proximate cause, damages

Front 121

What are the elements of the breach necessary for the negligence theory of products liability cases?

Back 121

[1] Negligent conduct of Δ leading to [2] the supplying of a defective product.

Front 122

Who can sue in products liability cases under the theory of strict liability? What must they show?

Back 122

Users, consumers, bystanders Elements are [1] strict duty owed by a commercial supplier of a product; [2] breach of that duty; [3] actual and proximate cause; and [4] damage.

Front 123

Who will be held liable under strict liability theory of products liability?

Back 123

Any commercial supplier. Casual sellers will NOT be held liable.

Front 124

What does merchantability mean?

Back 124

Whether the goods are of average and acceptable quality and are generally fit for the ordinary purpose for which the goods are used.

Front 125

What does fitness for a particular purpose mean?

Back 125

It arises when the seller knows or has reason to know the particular purpose for which the goods are required and that the buyer is relying on the seller’s skill and judgment in selecting the goods.

Front 126

Who can sue under strict liability in products liability cases?

Back 126

Narrow version of horizontal privity, which includes buyer, family, household, and guests

Front 127

A seller will be liable for misrepresentation of facts concerning a product where:

Back 127

[1] The statement was of a material fact concerning quality or uses of goods; and [2] the seller intended to induce reliance by the buyer in a particular transaction.

Front 128

Under the products liability theories, who can sue under the theory of: [1] Negligence; [2] Strict Liability; [3] Implied Warranties ( (a) Merchantability & (b) Fitness for a Particular Purpose)?

Back 128

[1] Any foreseeable Π; [2] Any Foreseeable Π; [3] Purchaser and her family, household, and guests

Front 129

Under the products liability theories, who can be sued under the theory of: [1] Negligence; [2] Strict Liability; [3] Implied Warranties ( (a) Merchantability & (b) Fitness for a Particular Purpose)?

Back 129

[1] Any commercial supplier (e.g., manufacturer, wholesaler, retailer); [2] Any commercial supplier; [3] (a) A merchant dealing in the kind of goods sold; (b) Any seller of the goods

Front 130

Under the products liability theories, what constitutes breach under the theory of: [1] Negligence; [2] Strict Liability; [3] Implied Warranties ( (a) Merchantability & (b) Fitness for a Particular Purpose)?

Back 130

[1] Negligent conduct that results in the supplying of a defective product; [2] The supplying of a defective product; [3] (a) Sale of goods not generally acceptable or fit for ordinary purposes; (b) Sale of goods not fit for purpose that seller knows or has reason to know of (and knows that buyer is relying on seller’s judgment)

Front 131

Under the products liability theories, what damages can be recovered under the theory of: [1] Negligence; [2] Strict Liability; [3] Implied Warranties ( (a) Merchantability & (b) Fitness for a Particular Purpose)?

Back 131

[1] Personal injury and property damage (no recovery for economic loss standing alone); [2] Personal injury and property damage (no recovery for economic loss standing alone); [3] Personal injury and property damage (recovery solely for economic loss IS permitted)

Front 132

Under the products liability theories, what defenses are available under the theory of: [1] Negligence; [2] Strict Liability; [3] Implied Warranties ( (a) Merchantability & (b) Fitness for a Particular Purpose)?

Back 132

[1] Assumption of the risk and any type of contributory negligence; [2] In Contributory Negligence States – assumption of the risk and unreasonable misuse (failure to discover or guard against defect is NOT a defense); in Comparative Negligence States – any type of fault (under type of fault (under state’s comparative negligence rules); [3] In Contributory Negligence States – Assumption of the risk, unreasonable misuses, and failure to give reasonable notice of breach; In Comparative Negligence States – Any type of fault (under state’s comparative negligence rules)

Front 133

What is a private nuisance?

Back 133

A substantial, unreasonable interference with another private individual’s use or enjoyment of property that he actually possesses or to which he has a right of immediate possession.

Front 134

What does substantial interference mean (in relation to private nuisance)?

Back 134

Interference that is offensive, inconvenient, or annoying to the average person in the community.

Front 135

How is private nuisance different from trespass to land?

Back 135

In a trespass, there is an interference w/ the landowner’s exclusive possession by a physical invasion; in a private nuisance, there is an interference with use or enjoyment.

Front 136

What is a public nuisance?

Back 136

An act that unreasonably interferes with the health, safety or property rights of the community.

Front 137

What is the vicarious liability of an employer for the tortious acts of the employee?

Back 137

Employer is vicariously liable if tortious act is within the scope of employment relationship

Front 138

What is the vicarious liability of an employer for the tortious acts of the independent contractor?

Back 138

Employer is NOT vicariously liable unless activity is inherently dangerous or duty is nondelegable on public policy grounds

Front 139

What is the vicarious liability of an employer for the tortious acts of the partner or joint venturer?

Back 139

The other partners or joint venturers are vicariously liable if tortious act is within the scope and course of partnership or joint venture.

Front 140

What is the vicarious liability of an employer for the tortious acts of the driver of automobile?

Back 140

Owner of automobile is NOT vicariously liable unless jdxn has family car doctrine or permissive use statute

Front 141

What is the vicarious liability of an employer for the tortious acts of the bailee of chattel?

Back 141

Bailor is NOT vicariously liable

Front 142

What is the vicarious liability of an employer for the tortious acts of the Child?

Back 142

Parent is NOT vicariously liable (except for limited statutory liability for willful and intentional torts)

Front 143

What is the vicarious liability of an employer for the tortious acts of the patron of tavern?

Back 143

Tavernkeeper is NOT vicariously liability in absence of Dramshop Act

Front 144

For contribution to apply, both Δs must have ________, but ________ applies when one of the parties is much more responsible than the other.

Back 144

Measureable degree of culpability. … Indemnity applies

Front 145

Does indemnity or contribution affect how much Π gets?

Back 145

No. Rather, they deal w/ how much of the total award each defendant ultimately must pay.

Front 146

What does indemnity do? When is it available?

Back 146

Indemnity involves shifting the entire loss between or among tortfeasors. It is available: [1] by contract; [2] in vicarious liability situations; [3] under strict products liability; [4] in some jdxns, where there has been an identifiable difference in degree of fault

Front 147

CONTRACTS

Back 147

CONTRACTS

Front 148

What is a quasi-K?

Back 148

It’s not really a K. It’s a remedy that is granted. Aka Restitutionary relief

Front 149

What is the measure of recovery under Quasi-K?

Back 149

It may as justice requires be measured by either: (a) the reasonable value of the services rendered (i.e., what it would have cost to obtain the services from someone else in the claimant’s position), or (b) the extent to which the other party’s property has been increased in value or his other interests advanced.

Front 150

Can a breaching party recover in Quasi-K under the Restatement?

Back 150

Yes, so long as it’s not a willful breach for party’s own convenience or financial advantage.

Front 151

How is a bilateral contract formed?

Back 151

It’s formed from an offer that’s open as to method of acceptance. You can accept by promise for by the beginning of performance.

Front 152

How is a unilateral K formed?

Back 152

Formed from offer that requires performance. (Hamer $5k to nephew to quit smoking)

Front 153

Two types of MBE unilateral K situations

Back 153

[1] Where offer expressly requires performance (Hamer); [2] Offer of reward, prize, or contest.

Front 154

What are the two factors that determine whether A2 applies?

Back 154

[1] Type of transaction – a sale (passing of title from Seller to Buyer for a price). [2] Subject matter of transaction – goods (movable property)

Front 155

What is a sale?

Back 155

A sale is the passing of title from Seller to Buyer for a price

Front 156

What’s the test for hybrid contracts?

Back 156

Predominant purpose test – is it mainly goods with incidental services? Or mainly services with incidental goods?

Front 157

What are four things courts look at for the predominant purpose test?

Back 157

[1] How much $ was spent on goods & on services? [2] How much time was spent on labor? [3] How sophisticated was the labor? [4] Does the K contain typical sales language?

Front 158

Essential elements of an offer

Back 158

[1] The identity of the offeree and the subject matter; [2] the price to be paid; [3] the time of payment, delivery or performance; [4] the quantity involved, and [5] the nature of the work involved.

Front 159

What is a limitation on requirements or output contracts?

Back 159

Can’t be unreasonably disproportionate. No quantity unreasonably disproportionate to any stated estimate may be tendered or demanded. Or if there is no stated estimate, no quantity unreasonably disproportionate to any normal or otherwise comparable prior output or requirements may be tendered or demanded.

Front 160

Is an advertisement an offer? Is there an exception?

Back 160

Generally, an advertisement is not an offer. It’s a mere invitation for offers. Exception #1 – If it is specific as to quantity and indicates who can accept. Exception #2 – If it operates like a reward.

Front 161

Four methods to terminate an offer

Back 161

[1] Termination by lapse of time; [2] Termination b/c of words or conduct of Offeror (Revocation); [3] Termination b/c of words or conduct of Offeree (Rejection); [4] Termination b/c of death of a party prior to acceptance

Front 162

What are the ways in which the offeror can terminate an offer?

Back 162

[1] Statement by Offeror to Offeree indicating unwillingness to contract, or [2] Conduct of Offeror that is inconsistent with an intention to make the K and of which the Offeree is aware.

Front 163

When does revocation of an offer sent through the mail become effective?

Back 163

Once it is received.

Front 164

4 situations where an offer cannot be revoked (exception to general rule):

Back 164

[1] If the Offeror has promised to keep the offer open and this promise is supported by consideration; [2] If it is (a) a contract for the sale of goods, (b) there is a written promise to keep the offer open, and (c) the promise is made by a merchant; [3] If there has been reliance by the Offeree that is reasonably foreseeable (reliance alone is not enough); [4] If performance of a unilateral K has begun.

Front 165

What is a merchant?

Back 165

Person who deals in goods of the kind or who otherwise holds himself as having knowledge or skill peculiar to the practices or goods involved

Front 166

In the UCC, additional terms become part of the K if:

Back 166

[1] Both parties are merchants; [2] the additional term does not “materially alter” the K; and [3] the offeror does not object w/in a reasonable time. Otherwise, it becomes a mere proposal and must be separately accepted by the other party.

Front 167

Methods of accepting an offer (5 fact patterns)

Back 167

[1] the offeree starts to perform; [2] the offeree promises to perform; [3] the offeree sends its acceptance through the mails; [4] the Seller of goods send the wrong goods; [5] the offeree is silent

Front 168

What is the mailbox rule?

Back 168

A mailed acceptance is effective when posted (even if it never arrives

Front 169

Two exceptions where mailbox rule does not apply:

Back 169

[1] Rejection mailed first, then letter of acceptance – rejection received first. Letter of acceptance operates as a counteroffer. [2] Acceptance mailed first, then rejection sent – rejection received first. If offeror relied on letter of rejection before the acceptance is received, estoppel may apply.

Front 170

What is an accommodation?

Back 170

An exception for when a Seller of goods sends the wrong goods the accommodation is not an acceptance. It’s a counteroffer that Buyer doesn’t have to accept. But he can’t sue for breach.

Front 171

What are the elements of consideration?

Back 171

[1] the promisee must suffer some “legal detriment”; [2] the detriment must induce the promise (i.e., the promisor makes his promise to induce the conduct of the promisee); [3] the promise must induce the detriment (i.e., the promisee is induced to act by the promise)

Front 172

What are the forms of legal detriment (4)

Back 172

[1] Performance (doing something not legally obligated to do); [2] Forbearance (not doing something legally entitled to do); [3] promise to perform; [4] promise to forbear

Front 173

What are some possible issues to look for in analyzing consideration? (9)

Back 173

[1] Conditional gift; [2] legal detriment; [3] past consideration; [4] adequacy of consideration; [5] Pre-existing duty rule; [6] part payment as consideration for promise to forgive balance of debt; [7] settlement of a claim; [8] promise to pay debt barred by statute of limitations; [9] Illusory Promises

Front 174

Promissory Estoppel elements

Back 174

[1] Promise; [2] Reliance that is both foreseeable and justifiable; [3] Enforcement necessary to avoid injustice

Front 175

Who lacks capacity to consent?

Back 175

[1] infants (under 18); [2] mental incompetents; [3] intoxicated person

Front 176

Lacking capacity to contract – Mental incompetent?

Back 176

A person who is unable to understand in a reasonable manner the nature and consequences of the transaction, or is unable to act in a reasonable manner in relation to the transaction and the other party has reason to know of his condition.

Front 177

Lacking capacity to contract – Intoxicated persons

Back 177

The other party has reason to know that, by reason of intoxication, he is unable to understand in a reasonable manner the nature & consequences of the transaction, or he is unable to act in a reasonable manner in relation to the transaction.

Front 178

What are the contracts within the SOF?

Back 178

[1] Promise in consideration of marriage; [2] Promise by executor or administrator to pay an obligation of the estate from his own funds; [3] Promises to answer for the debt of another; [4] K not capable of being performed w/in a year of the date that the K was entered into; [5] Promise creating an interest in land; [6] Sale of goods for $500 or more; [7] Modifications

Front 179

SOF mnemonic

Back 179

MYLEGSS – Marriage; Year (1); Land; Executor; Guarantee; Sale of Goods $500+; Statute of Limitations – Statute of Frauds  Statute of Frogs. “I want your legs.” “My Legs???”

Front 180

In the SOF, what is the primary benefit exception?

Back 180

When someone makes a promise to answer for the debt of another, but it benefits the person making the promise. Ex: a sole shareholder making a promise to pay the debts of a corporation.

Front 181

What is the equal dignity rule?

Back 181

Ex: Since a contract for the sale of Real Estate need to be in writing, a writing is needed to authorize someone to sign it for you (unless he is in your presence). The authorization should be given the same dignity as the documents.

Front 182

Generally, is a new writing needed for a modification in order to satisfy the SOF?

Back 182

If the original agreement came within the SOF and was satisfied by a writing, that same writing may satisfy the statute as to the modified agreement as long as no essential terms were modified.

Front 183

Is a new writing needed for a modification in order to satisfy the SOF under the UCC?

Back 183

As long as the quantity is not modified, the original writing may satisfy the SOF even if some other modification is agreed upon – no new writing would be needed.

Front 184

What happens if the SOF is not satisfied as to a modification?

Back 184

The original contract stands unmodified. MBE will try to trick you by saying that the whole K is void.

Front 185

How is the SOF satisfied for contracts other than sales of goods?

Back 185

[1] writing; [2] Part performance of oral agreement to buy real estate; [3] Part performance of an oral agreement that cannot be performed within a year; [4] Estoppel to plead SOF

Front 186

What contents are needed for a writing to satisfy the SOF in a contract other than the sale of goods?

Back 186

[1] ID the parties; [2] ID the subject matter; [3] Must contain all the essential terms; [4] Must be signed by the party to be charged (i.e., if Bob is raising SOF as a defense, his opponent must produce writing signed by Bob)

Front 187

For part performance of oral agreement to buy real estate to satisfy the SOF, what must happen?

Back 187

Two of the following three must occur: [1] Full or part payment; [2] possession; and/or [3] improvements

Front 188

What are the contents of the writing necessary to satisfy the SOF for sale of goods for $500 or more?

Back 188

You must have a writing signed by the party to be charged. [1] Quantity; [2] Indicate that K for sale has been made between parties must afford basis for believing there is a K. Easier standard to meet than essential elements. [3] Signed by party to be charged.

Front 189

If Merchant A receives a letter from Merchant B asserting the existence of a K, and A does not believe that any such K exists, what should A do? Why?

Back 189

A should respond. A delay in responding will result in a loss of SOF Δ under 2-201

Front 190

What is the UCC Merchant Confirmation Rule?

Back 190

[1] Both parties are merchants; [2] Writing claims there is a K; [3] Writing signed and states quantity; [4] Failure to object in writing w/in 10 days of receipt

Front 191

In situations of ambiguity (mutual misunderstanding), there will be no K if:

Back 191

[1] the parties use a material term open to at least 2 reasonable interpretations; [2] each party attaches a different meaning to the term; and [3] neither party knows or has reason to know meaning attached by the other. (Peerless)

Front 192

For mutual mistake of material fact (Rose the cow) – there will be no K if:

Back 192

[1] Both parties are mistaken; [2] basic assumption of fact; [3] materially affects the agreed exchange; [4] not a risk that either party bears

Front 193

For mutual mistake of material fact, what are the differences when the mistake concerns the nature of the subject matter and the mistake concerns the value of the subject matter

Back 193

Nature of the subject matter – no K. Value of the subject matter – no relief available.

Front 194

What are exceptions to the general rule for unilateral mistake (Cts are reluctant to avoid a K for a mistake that was not shared by the other party)?

Back 194

[1] Obvious mistakes – if the other party knows or should have known of the mistake, courts grant relief to the mistaken party. [2] Avoidance before significant reliance by the other party – courts have granted a bidder relief from a unilateral mistake in the calculation of its bid if avoidance is sought before any significant reliance by the other party. This is especially true if the mistake was a clerical error as opposed to an error in judgment, and if enforcing the K would be very oppressive on the mistaken party.

Front 195

What is duress?

Back 195

It’s when a party is left w/ no reasonable alternative but to enter into a K.

Front 196

What happens if a K was made under duress?

Back 196

It’s voidable

Front 197

What is undue influence?

Back 197

The gist of it is unfair persuasion. It may exist where a person uses a position of trust & confidence, or a position of dominance, to convince the other to enter into a transaction that is not in that other party’s best interest. It often results in the enrichment of one party at the expense of the other. If undue influence is shown, the K is voidable. It will pop in Wills situations also.

Front 198

What are the types of fraud and misrepresentation?

Back 198

[1] Fraud in the inducement; [2] Fraud in the factum; [3] Innocent Misrepresentation; [4] Non-Disclosure

Front 199

What is fraud in the inducement? What effect on a K?

Back 199

You’re deceived about the subject matter. It’s the most common. Ex: I persuade you to enter into a K to purchase some land by lying to you about the total acreage. VOIDABLE

Front 200

What is fraud in the factum (or execution)? What effect on a K?

Back 200

You’re deceived about the nature of the document you’re signing. You think you’re signing an autograph, but it’s really a K. There is no K. There is NO K.

Front 201

What is innocent misrepresentation? What effect on a K?

Back 201

Ex: I say my home is 2400 sq ft when it only has 2000. If you reasonably relied on it, you can AVOID the K. But if I said 2050 sq ft, then chances are you can’t get out of it. But you could get damages.

Front 202

What is the general rule of non-disclosure?

Back 202

There is no duty to disclose facts that would tend to discourage the other party from entering into the K. But there are many exceptions. [1] Statutory Disclosure Rules (truth in lending act); [2] active concealment (treated like a misrep); [3] where partial disclosure is misleading; [4] changing circumstances cause a previous true assertion to no longer be true; [5] party becomes aware that other party is operating under a mistake as to a vital fact (most heavily litigated); [6] there is a confidential or a fiduciary relationship.

Front 203

What are the exceptions to the rule of non-disclosure?

Back 203

[1] Statutory Disclosure Rules (truth in lending act); [2] active concealment (treated like a misrep); [3] where partial disclosure is misleading; [4] changing circumstances cause a previous true assertion to no longer be true; [5] party becomes aware that other party is operating under a mistake as to a vital fact (most heavily litigated); [6] there is a confidential or a fiduciary relationship.

Front 204

What is unconscionability?

Back 204

[1] based on “unfair surprise” and “oppression”; [2] Look for both “procedural” (gross disparity of bargaining power, terms tucked away, etc.) and “substantive” (grossly unfair terms) unconscionability. Most courts require both. [3] judged at the time the K is entered into. [4] decided by the judge.

Front 205

How can a K be illegal?

Back 205

[1] K may be illegal as to its subject matter (drugs) VOID; [2] Subject matter may be legal, but purpose is illegal (leasing a plane for transporting drugs) if the renter is ignorant of purpose, he can recover damages for breach; [3] Against public policy – neither party can enforce.

Front 206

Besides the words of the parties, what are other sources of contract terms?

Back 206

[1] Custom & Usage – how these deals are usually done in their particular place and particular trade; [2] Past Dealings between the parties – how these particular people have performed these Ks in the past; [3] UCC, if sale of goods – some terms are implied unless specifically excluded (warranty of title, implied warranty of merchantability

Front 207

What does the PER prevent?

Back 207

Terms from becoming part of the K

Front 208

What facts trigger PER?

Back 208

[1] written K intended as final agreement (totally or completely integrated); [2] Earlier of contemporaneous agreements; the PER does not apply to oral or written agreements made after the final writing; it does not apply to modifications.

Front 209

What is the PER rule?

Back 209

Where parties have agreed to a written K as the final expression of their agreement, a prior written or oral agreement, or a contemporaneous oral agreement, cannot be used to vary the terms of the agreement. [a contemporaneous written agreement is part of the final written agreement]

Front 210

What are the PER issues that the judge decides?

Back 210

[1] do the parties intend that, even though it is not complete, the written agreement is final as to the terms in that agreement? (partially integrated); [2] Do the parties intend the written agreement to be not only final as to the terms in the agreement, but also their complete agreement? (completely integrated) [note – merger clauses, sometimes called integration clauses, are strong evidence that the parties intended the written agreement to be completely integrated.

Front 211

What is strong evidence that the parties intended a written agreement to be completely integrated?

Back 211

Merger clauses (aka integration clauses)

Front 212

What does a judge look for when deciding on PER issues?

Back 212

[1] merger clause – not conclusive (especially in consumer transactions); [2] How complete does it look (napkin or 20 pages of K); [3] time length of negotiations; [4] presence of lawyers

Front 213

What are exceptions to PER?

Back 213

[1] using earlier agreement to explain the final writing; [2] Using earlier agreement to establish a Δ (e.g., fraud, duress, mistake, etc.); [3] Using the earlier agreement to show that the written K would not become effective until a condition occurred (condition precedent); [4] using earlier agreements to add to the final writing if the court concludes that the final writing was not intended as the complete agreement (the agreement in only partially integrated) – you can add but you can’t contradict. [5] Collateral agreements are admissible; [6] Oral or written agreements after the final writing

Front 214

What is a collateral agreement?

Back 214

[1] agreed to for separate consideration, or [2] is such an agreement as in the circumstances might naturally be omitted form the writing. (it’s only partially integrated). A collateral agreement is a separate K.

Front 215

What are the types of delivery obligations of a Seller of goods?

Back 215

Shipment K and Destination K

Front 216

In a Shipment K, the Seller completes its delivery obligation when it:

Back 216

[1] gets the goods to the carrier, [2] makes appropriate arrangements for shipment (considering the nature of the goods), and [3] notifies the Buyer that the goods are coming (and obtains and tenders any documents necessary to enable the Buyer to take possession.

Front 217

In a Destination K, the Seller completes its delivery obligation when it:

Back 217

Not complete until they are tendered to the Buyer. Tender – making goods reasonably available to Buyer

Front 218

How do you tender to a Buyer?

Back 218

Make the goods reasonably available to the Buyer

Front 219

What are the sources of delivery terms?

Back 219

Course of Dealing, Usage of Trade, the parties words

Front 220

What is FOB?

Back 220

Free on Board (city)

Front 221

What is CIF?

Back 221

Costs, Insurance, Freight (city)

Front 222

What is C&F?

Back 222

Cost and Freight (city)

Front 223

What is FAS?

Back 223

Free along side (ship or port)

Front 224

What is Ex-Ship?

Back 224

From the carrying vessel. It means away from the ship.

Front 225

What is the general rule for delivery terms?

Back 225

Most Ks are shipment contracts. Contracts with the provision Ex-Ship, or with the provision FOB followed by a city other than where the Seller and/or the goods are located (e.g., FOB Buyer’s place of business) are destination Ks. All others are shipment Ks.

Front 226

Which delivery terms represent destination Ks?

Back 226

Ex-Ship or FOB followed by a city other than where the Seller and/or the goods are located (e.g., FOB Buyer’s place of business)

Front 227

What do most delivery terms represent?

Back 227

Shipment contracts. Exceptions are Ex-Ship or FOB followed by a city other than where the Seller and/or the goods are located (e.g., FOB Buyer’s place of business)

Front 228

For delivery terms, if the contractual language is unclear, what is the presumption?

Back 228

If it’s unclear (e.g., the K calls for shipment to the Buyer, but does not contain usual shipment terms such as FOB or CIF), the presumption is that the transaction is a shipment K.

Front 229

Who has the risk of loss when goods are damaged w/o the fault of Buyer or Seller?

Back 229

If risk of loss on Buyer – he has to pay full K price for the lost damaged goods. If risk of loss on Seller – there is no obligation on Buyer; and there is possible liability on Seller for nondelivery (though commercial impracticability may excuse Seller’s nondelivery).

Front 230

How do you recognize a risk of loss question on the bar exam?

Back 230

Look for a situation where: [1] after the K was formed but before Buyer receives the goods, [2] the goods are damaged or destroyed and [3] neither the Buyer nor the Seller is to blame.

Front 231

How do you decide who has risk of loss in delivery contracts?

Back 231

[1] Agreement of the parties – any agreement of the parties control; [2] Breach – were the goods non-conforming so that the Buyer would have a right to reject or revoke, or did the Buyer wrongfully repudiate? If so, special rules apply.

Front 232

What happens when there is no agreement as to delivery terms, no breach, and delivery by common carrier other than Seller, when does risk of loss shift?

Back 232

The risk of loss shifts from Seller to Buyer at the time that the Seller completes its delivery obligations.

Front 233

What happens when there is no agreement as to delivery terms, no breach, and no delivery by common carrier other than Seller, when does risk of loss shift?

Back 233

The determining factor is whether the Seller is a merchant. Risk of loss shifts from a merchant-Seller on the buyer’s receipt of the goods; risk shifts from a non-merchant seller when the seller tenders the goods. Goods are tendered when the seller is holding the goods for the buyer and lets the buyer know that the goods are available to her. Tender comes before receipt.

Front 234

Compare the risk of loss in Sale on Approval vs. Sale or Return situations

Back 234

Sale or Return Situations – The same rules apply. Usually pops up in situations where the goods are delivered to a buyer who plans to resell the goods, and the buyer has a right to return the goods to the seller even thought they conform to the K (e.g., goods taken on assignment) Sale on Approval – Risk of loss is on seller until the buyer accepts the goods. Here the goods are delivered to the buyer primarily for the buyer to use, and the buyer has a right to return the goods even though they conform to the K (e.g., buyer using a piece of equipment on a trial basis)

Front 235

What does it mean for something to go to the basis of the bargain?

Back 235

It’s a natural tendency to induce reliance by the buyer. It’s the type of thing that a buyer would rely upon. It’s NOT puffery.

Front 236

Compare Warranty vs. Puffery

Back 236

[1] if it’s in writing, it’s more likely to be warranty; [2] the more specific that it is, the more likely to be a warranty; [3] look at the industry involved (puffing at car dealership)

Front 237

What is the implied warranty of merchantability (IWOM) and who gives it?

Back 237

Only given by merchants who deal in goods of the kind. It’s when any person buys any goods from any merchant, a term is automatically added to the K by operation of law – that the goods are fit for the ordinary purposes for which such goods are used.

Front 238

What are the triggering facts for an IWOF?

Back 238

Buyer has particular purpose; buyer is relying on seller to select suitable goods; seller has reason to know of purpose and reliance

Front 239

What’s the warranty for an IWFO? How do you show it?

Back 239

That the goods are fit for a particular purpose. You have to show that the buyer relied and the seller knew of the reliance

Front 240

What is the Implied Warranty of Title?

Back 240

Seller warrants that it has good title, and there are no undisclosed security interests, liens, or other encumbrances.

Front 241

What are the different warranties of quality?

Back 241

[1] Express Warranties (by words or conduct); [2] Implied warranty of merchantability; [3] Implied warranty of Fitness; [4] Implied Warranty of Title

Front 242

What are the principal contractual limitations on warranty liability?

Back 242

[1] Disclaimer and [2] limitation of remedies

Front 243

What is a disclaimer of warranty?

Back 243

A contract clause that eliminates warranties

Front 244

What is necessary to disclaim an IWOM or IWOF?

Back 244

[1] must be conspicuous (so written that a reasonable person would notice it); [2] it must mention “merchantability” or may be more general language which in common understanding calls the buyer’s attention to the exclusion of warranties and makes plain there is no implied warranty (e.g., These goods are being sold “as is” or “with all faults”; All warranties are disclaimed; There are no implied

Front 245

For IWOM or IWOF, can you exclude or modify the warranties?

Back 245

Yes, by COD, COP, or Trade Usage

Front 246

What happens in IWOM or IWOF situations where the seller demanded that the buyer examine the goods fully?

Back 246

There are no implied warranties wrt defects which an examination ought to have revealed. But it must be a demand and not a mere asking. This is narrowly interpreted by courts.

Front 247

How do you disclaim an IWOT?

Back 247

It may be excluded or modified only by specific language or by circumstances (sales by sheriffs, executors, foreclosing lienors) which give buyer reason to know that the seller does not claim title in himself, or is purporting to sell only an unknown or limited right.

Front 248

What is a limitation of remedies clause? Is it valid?

Back 248

A K provision that limits or controls the recovery for any breach of warranty. It does not eliminate the warranty. Such a remedy limitation is valid so long as it is not unconscionable, and so long as the limited remedy does not fail of its essential purpose.

Front 249

How do courts view a limitation of consequential damages? How does the UCC view this limitation?

Back 249

Generally, it’s ok to say “no consequential damages” but if it’s unconscionable, the court won’t uphold. Under the UCC, any attempt to limit consequential damages for personal injuries in case of consumer goods is prima facie unconscionable. The courts might also apply for equipment, but it wouldn’t be prima facie.

Front 250

How does the UCC view a limitation of consequential goods in consumer goods?

Back 250

Any attempt to limit for personal injuries in cases of consumer goods is prima facie unconscionable.

Front 251

What is the statute of limitations for a breach of warranty? When does it start to run?

Back 251

It’s 4 years. It starts to run form the tender of delivery (even if buyer is unaware of breach). But when the warranty explicitly extends to the future performance of the goods (e.g., 90-day warranty, 5-year warranty, lifetime warranty), then the 4-year starts to run when the breach is or should have been discovered.

Front 252

What is a condition?

Back 252

A promise modifier. It holds up the performance of one or both of the parties. True conditions are events that are outside the control of either party.

Front 253

What is a condition coupled with a covenant?

Back 253

An event that affects the duty to perform that is to some extent within the control of one of the parties and creates a legal obligation on the party to use reasonable good faith efforts to cause the event to occur.

Front 254

what are the types of conditions?

Back 254

[1] Condition precedent; [2] Condition concurrent; [3] Condition Subsequent

Front 255

What is a condition precedent?

Back 255

It’s the most common and it must occur before an absolute duty of immediate performance arises in the other party. Ex: I’ll buy the house if I can get financing.

Front 256

What is a condition concurrent?

Back 256

It’s two conditions that are capable of occurring together, and the parties are bound to perform at the same time. Ex: I will sell you a book for $10. (you giving me the book and me giving you the $10 are concurrent)

Front 257

What is a condition subsequent?

Back 257

One the occurrence of which cuts off an already existing duty of performance. (ex: insurance will pay, but if you don’t go after the person who hit you, the insurance won’t help you)

Front 258

What is an express condition? Hints to look for?

Back 258

One that is expressed in the contract. Look for “if”, “subject to,” “in the event that,” “unless,” or “on condition that”. Ex: I will mow your lawn this weekend if my lawn mower is returned by the repair shop in time.

Front 259

What is a constructive/Implied by law condition?

Back 259

They are read into the contract by the court; they are created by operation of law. This is done in the interest of fairness to ensure that both parties receive the performance for which they bargained. A party’s substantial performance of the K is said to be a constructive condition of the other party’s obligation to perform. Ex: if P agrees to paint house, it’s implied he will paint all of it.

Front 260

What is Excuse of conditions?

Back 260

Look to the person who benefits form the condition, the person who is protected by the condition. Ask whether she has done or said anything that justifies taking away that benefit or protection, leaving her unconditionally obligated to perform.

Front 261

What are examples of excuse of condition?

Back 261

[1] failure to cooperate; [2] estoppel/waiver

Front 262

What is the difference between estoppel and waiver?

Back 262

Estoppel is based on a statement or conduct by the person protected by a condition before the conditioning even was to occur and requires a change of position (reliance). Waiver – is a similar statement or conduct made by the person after the conditioning event was to occur and does not require a change of position (reliance).

Front 263

What is the standard for satisfaction of an express condition?

Back 263

Strict compliance.

Front 264

What is the standard for a constructive condition?

Back 264

Substantial performance is the general standard for satisfaction of a constructive condition.

Front 265

Sale of Goods – What is perfect tender? What are the options available?

Back 265

General standard of A2. subject to limited exceptions, the seller is obligated to deliver perfect goods. If the goods or tender of delivery fail in any respect to conform to the contract, the buyer can reject the whole, accept the whole, or accept any commercial unit and reject the rest. De Minimis will not violate Perfect Tender

Front 266

Sale of Goods – What’s the second chance for perfect tender called and in what situations does it arise?

Back 266

Cure [1] Contractual right to cure (limitation of remedy clause); [2] Time for Performance has not yet expired; [3] Time for performance has expired – the statutory test is whether the seller has reasonable grounds for believing that the improper tender would be acceptable, perhaps w/ a money allowance. Look for info about prior deals.

Front 267

Sale of Goods – What has to happen to allow cure after the time for performance has expired in perfect tender situations?

Back 267

the statutory test is whether the seller has reasonable grounds for believing that the improper tender would be acceptable, perhaps w/ a money allowance. Look for info about prior deals.

Front 268

Sale of Goods – What is required for the rejection of the goods?

Back 268

[1] Notice – buyer that wishes to reject must notify the seller. Must take affirmative action to avoid acceptance.

Front 269

Sale of Goods – When rejecting goods, what kind of notice is required?

Back 269

The notice should be timely, because the seller could cure, the stuff might depreciate in value, and should be specific in the reasons for rejecting.

Front 270

Sale of Goods – What kind of specificity should a buyer offer when rejecting goods?

Back 270

Buyer must state reasons for rejecting. Can’t rely on unstated defect to justify rejection or establish breach if: [1] seller could have cured if he knew about it; or [2] between merchants, when the seller has, after rejection, made a request in writing for a full and final written statement of all defects upon which the buyer proposes to rely.

Front 271

Sale of Goods – When is rejection of goods allowed?

Back 271

[1] If the goods are less than perfect, the buyer has the option to reject unless it is an installment sales K (then the perfect tender rule wouldn’t apply); [2] rejection must occur before acceptance.

Front 272

Sale of Goods – What is an installment sales contract?

Back 272

It requires or authorizes delivery in separate lots to be separately accepted. But if the K doesn’t authorize it, you have no right to do it separately.

Front 273

Sale of Goods – Why is it necessary to identify installment sales contracts?

Back 273

Buyer has the right to reject an installment only where there is a substantial impairment in that installment that cannot be cured.

Front 274

Sale of Goods – Does breach in one installment ever permit the buyer to reject not just that one installment, but the entire contract?

Back 274

Where breach wrt substantially impairs the K.

Front 275

Sale of Goods – When has the buyer accepted goods?

Back 275

[1] When she, after a reasonable opportunity to inspect, indicates to the seller that the goods conform to requirements or that she will keep them even though they conform; or [2] When she fails to make an effective rejection; or [3] When she does any act inconsistent w/ the seller’s ownership (but look to facts – mobile home where person has nowhere else to live).

Front 276

Sale of Goods – What is the buyer’s right of inspection before acceptance?

Back 276

Buyer has right to inspect goods before payment and acceptance. Sometime, payment is required by the K before inspection.

Front 277

Sale of Goods – What is the effect of acceptance of goods?

Back 277

Buyer cannot later reject them.

Front 278

Sale of Goods – What are the requirements for revoking an acceptance?

Back 278

[1] Nonconformity substantially impairs the value of the goods to him (whether it would be a substantial impairment to a reasonable person in the buyer’s position)* (This is subjective and objective.); and [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 and before any substantial change in the condition of the goods which is not caused by their own defects.

Front 279

Sale of Goods – What does a buyer have to do after revoking acceptance of goods?

Back 279

Must hold the goods for the seller using reasonable care. A merchant buyer must follow any reasonable instructions from the seller if seller has no agent or place of business at the market of rejection or revocation.

Front 280

Sale of Goods – What’s a buyer’s payment obligation?

Back 280

[1] in the absence of an agreement for credit, the buyer must pay cash, [2] the buyer can pay by check, and [3] the seller can refuse the check, but if seller demands cash, the buyer must be given reasonable amount of time to get it.

Front 281

Sale of Goods – What’s the effect of breach on risk of loss if the goods are so defective that buyer has a right to reject them?

Back 281

The risk of loss remains on the seller until the defects are cured or the buyer accepts the goods in spite of their defects.

Front 282

Sale of Goods – What’s the effect of breach on risk of loss if the goods are defective and buyer rightfully revokes her acceptance?

Back 282

The risk of loss is on the seller to the extent of any deficiency in the buyer’s insurance coverage.

Front 283

Sale of Goods – What’s the effect of breach on risk of loss if the seller has identified conforming goods to the K, and the buyer repudiates or otherwise breaches the K before the risk has passed to her?

Back 283

The risk of loss falls on the buyer to the extent of any deficiency in the seller’s insurance coverage.

Front 284

Sale of Goods – If tender is less than perfect, what can the buyer do in a sale of goods K?

Back 284

Reject the goods and withhold payment – the buyer is excused from paying (and can sue for damages)

Front 285

At CL, if one party to a K substantially performs, what is the other party’s obligations?

Back 285

Require to perform. A minor breach by one party to the K will not excuse performance by the other party (though the other party can sue for damages). A party’s substantial performance is said to be a “constructive condition” of the other party’s obligation to perform.

Front 286

What is the technical term for anticipatory repudiation?

Back 286

Excuse by reason of other party’s pre-performance indication of an unwillingness or inability to perform

Front 287

What is repudiation?

Back 287

Unequivocal manifestation by one party to the other that [1] the repudiating party cannot or will not perform its obligations under the K [2] made prior to the time that the repudiating party’s performance is due

Front 288

What does anticipatory repudiation do for the non-repudiating party?

Back 288

Excuses the duty to perform. It also gives an immediate claim to damages for breach unless the claimant (non-repudiating party) has already finished her performance.

Front 289

Can you retract a repudiation?

Back 289

Yes, as long as the other party hasn’t relied on it.

Front 290

What are the four types of agreements that excuse a K?

Back 290

[1] Modification; [2] Accord & Satisfaction; [3] Rescission; [4] Novation

Front 291

What is a modification?

Back 291

It’s an agreement changing the duties under the K. discharge of the original obligations occurs as soon as this new agreement is entered into. We are not changing the people, but the duties of the people.

Front 292

What are we changing with a modification?

Back 292

The duties of the people, NOT the people.

Front 293

What is an accord & satisfaction?

Back 293

An agreement to accept substitute performance in FUTURE satisfaction of a contractual duty. The accord is the new agreement to accept a different performance in order to discharge an existing contractual duty. The satisfaction is the performance of the new agreement. The original duty is not discharged until performance of the new agreement.

Front 294

Under an accord & satisfaction, when is the original duty discharged?

Back 294

Not until performance of the new agreement.

Front 295

What can you sue on if a party breaches an accord?

Back 295

The original agreement or the accord agreement.

Front 296

What is a rescission?

Back 296

A cancellation of duties under the K. Discharge occurs at the time of this new agreement. Some performance must remain to be done on each side of the K. if either or both parties have fully performed, there is no valid rescission.

Front 297

Can you have an oral rescission? Are there exceptions?

Back 297

Yes, you can have oral rescission. Exceptions – [1] transferring intent in land (need writing); [2] UCC – when you put in clause for having written rescissions.

Front 298

What is Novation?

Back 298

Substitution of a party. Immediate excuse. It requires agreement of both parties to the original contract and the new party. It’s different than delegation.

Front 299

Does delegation relieve the original party of its duty?

Back 299

No

Front 300

Excuse by Reason of impossibility or impracticability – triggering facts

Back 300

Look for: [1] post-K occurrence, [2] that was not reasonably foreseeable at the time of the K, that was not a risk assumed by a party to the K, [3] that renders performance impossible (commercially impracticable), [4] without the fault of the party seeking to be excused.

Front 301

What effect did the destruction of subject matter of contract or means of performance have at CL?

Back 301

Discharged/excused.

Front 302

Destruction of goods in a sale of goods situation (UCC) raises three questions:

Back 302

[1] Were the goods destroyed the subject matter of the K? [2] Did the buyer have the risk of loss at the time of the destruction? and [3] how is destruction of some of the goods that are the subject matter of the K to be handled?

Front 303

For UCC, you only worry about impossibility if …

Back 303

The seller has risk of loss. If the buyer has risk of loss, he still has to pay.

Front 304

Is a farmer a merchant?

Back 304

No. non-merchant

Front 305

What are types of situations where there might be an excuse by reason of impossibility or impracticability?

Back 305

[1] destruction of subject matter of K or means of performance; [2] incapacity of a person necessary to perform; [3] governmental regulation or order; [4] increase in costs of performance (just an increase by itself is usually an assumed risk); [5] temporary impossibility

Front 306

What happens with temporary impossibility in performance of a K? What’s an example?

Back 306

Bad weather on a construction project. It suspends contractual duties, but generally does not discharge them. When performance becomes possible, the duty springs back into existence. The duty will not spring back if the burden on either party to the K would be substantially increased or different from that originally contemplated.

Front 307

What should you look for in an excuse by reason of frustration of purpose?

Back 307

Look for: [1] Post-K occurrence; [2] not reasonably foreseeable at the time that the K was entered into; [3] totally or nearly destroys the purpose or value of the K; and [4] the purpose of the K was known to both parties at the time of the K. (Krell wanted to watch the king. Krell got his deposit back)

Front 308

What are the tests for determining whether a K provision is a valid liquidated damages clause or an invalid penalty provision?

Back 308

[1] at time of K, damage was difficult to estimate, and [2] at time of K, provision was a reasonable forecast of possible damages.

Front 309

What is the general measure of damages for breach of an ordinary K?

Back 309

The injured party is entitled to recover an amount that would put him in as good a position as if the K had been performed. (Expectation Damages)

Front 310

What are incidental damages?

Back 310

They include the cost incurred in a reasonable effort to avoid loss resulting from the breach.

Front 311

What are foreseeable consequential damages?

Back 311

They include injury to person or property and lost profits resulting from breach. Hadley – only liable for losses resulting from the breach that a reasonable person would have foreseen could result from the breach at the time of the entry into the K.

Front 312

What are avoidable damages?

Back 312

Damages that she could have reasonably avoided. She must make efforts to mitigate damages she is not expected to take steps that involve undue burden, risk, or humiliation.

Front 313

What are speculative damages?

Back 313

Damages must be established to a reasonable certainty (not mathematical accuracy). Where Π’s expectation damages are too speculative to measure, reliance damages may be recovered.

Front 314

What are the two relevant facts for general contract damages policy of A2?

Back 314

[1] Who breached; [2] Who has the goods. There are four basic A2 damages fact patterns and four sets of rules.

Front 315

A2 - What’s the formula for when Seller breaches & Buyer keeps the goods?

Back 315

FMV if perfect – FMV as delivered

Front 316

A2 - What’s the formula for when Seller breaches, Seller keeps the goods?

Back 316

(MP at time of discovery of the breach – K Price) or (Replacement Price – K Price)

Front 317

A2 - What’s the formula for when Buyer breaches, Buyer has the goods?

Back 317

K Price. (MP doesn’t matter!)

Front 318

A2 - What’s the formula for when Buyer breaches, Seller has the goods?

Back 318

(K Price – MP at Time & Place for tender) or (K Price – Resale Price)

Front 319

What do you need when you are trying to get resale?

Back 319

Need: [1] good faith; [2] commercially reasonable manner

Front 320

What are the general principles of equitable remedies?

Back 320

They are available only if remedies at law (money damages) are not available. [1] Unclean hands; [2] impossibility and hardship; [3] laches

Front 321

What is unclean hands?

Back 321

General principle of equity – Available if Π is guilty of improper conduct wrt the same transaction involved in litigation

Front 322

What is impossibility and hardship?

Back 322

General principle of equity – equity will not order something that is not within the capacity of the person ordered to do it; nor will equity order relief when the burden on the Δ is disproportionate to the gain to the Π.

Front 323

What is laches?

Back 323

General principle of equity – where Π has delayed bringing suit, and this delay has substantially increased the cost or difficulty of performance by the Δ, or has made it much more difficult for the Δ to defend the lawsuit. Much more flexible than SOF

Front 324

What are some equitable remedies?

Back 324

[1] Specific Performance; [2] equitable rescission; [3] reformation

Front 325

What is equitable rescission?

Back 325

Equitable Defense – This remedy is available where performance is excused b/c of impossibility, impracticability, or frustration of purpose. It can also be used where the K is void or voidable on ground such as mutual mistake.

Front 326

What is reformation?

Back 326

Equitable Defense – used where the agreement was incorrectly recorded.

Front 327

Under the UCC, what does reasonable grounds for insecurity / adequate assurance of performance mean?

Back 327

Where either party to a sale of goods has reasonable grounds for insecurity about the other party’s performance, it may in writing demand adequate assurance of performance and may, if commercially reasonable, suspend performance until it receives such assurance. If such assurance is not received w/in a reasonable time not exceeding 30 days, it can be treated as a repudiation of the K.

Front 328

What is a seller’s right of reclamation?

Back 328

An unpaid seller has no special rights in goods it has delivered to the buyer even though it has not yet been paid for the goods. The seller can obtain special rights by obtaining A9 security interest or by meeting the requirements of § 2-702. Under § 2-702, An unpaid seller has the right to reclaim its goods if: [1] it is a credit sale; [2] the buyer is insolvent when it receives the goods; [3] demand for return is made w/in 10 days of buyer’s receipt of the goods or within a reasonable time if buyer made false representations of solvency.

Front 329

Under § 2-702, An unpaid seller has the right to reclaim its goods if:

Back 329

[1] it is a credit sale; [2] the buyer is insolvent when it receives the goods; [3] demand for return is made w/in 10 days of buyer’s receipt of the goods or within a reasonable time if buyer made false representations of solvency.

Front 330

What does it mean to be insolvent?

Back 330

Liabilities > assets; or not paying debts when due.

Front 331

Who is the promisor in 3pb situations?

Back 331

The person who is to render performance that benefits the 3pb

Front 332

Who is the promisee in 3pb situations?

Back 332

The person bargaining w/ the promisor for promisor’s performance

Front 333

Do intended bens have legal rights under a K?

Back 333

Yes

Front 334

Do incidental bens have rights under a K?

Back 334

No

Front 335

How do you determine if a party is an intended ben?

Back 335

Consider the promisee’s intention. Was the purpose of the promisee, according to the language of K, to get the benefit for herself primarily, or to confer a Ben on another person?

Front 336

What do courts look at in determining the intention of the promisee?

Back 336

[1] whether the 3rd party is expressly designated in the K; [2] whether performance by the promisor is to be made directly to the third party; [3] whether the 3rd party has any rights under the K (e.g., the right to designate when and where performance is to be made); and [4] whether the 3rd party has a relationship w/ the promisee from which one could infer that the promisee wished to make an agreement for the 3rd party’s benefit.

Front 337

When is a 3rd party a creditor/donee?

Back 337

A 3rd party is a donee Ben unless it was already a creditor of the promisee when the K was entered into between the promisee and promisor.

Front 338

Can the promisor and the promisee modify or terminate the rights of a 3rd party ben?

Back 338

The answer to this question depends on whether the Ben’s rights have vested.

Front 339

When do the rights of a beneficiary vest?

Back 339

[1] when the 3rd party brings suit to enforce the promise; [2] when the 3rd party materially changes its position in justifiable reliance on the promise; or [3] when the 3rd party manifests assent to the promise in a manner invited or requested by the parties (this rests in part on the analogy to the law of offer and acceptance and in part on the probability that the Ben will rely in ways difficult or impossible to prove.)

Front 340

What is the exception to the general rule of when 3pb rights vest?

Back 340

Contrary contract provisions control.

Front 341

Paul promises to pay me if I paint Betty’s house. Who is [1] 3pb? [2] Promisor? [3] Promisee?

Back 341

[1] 3pb = Betty; [2] Promisor = Me; [3] Promisee = Paul

Front 342

In 3pb situations, who can sue whom?

Back 342

[1] Ben can sue Promisor; [2] Promisee can sue the Promisor; [3] Creditor Ben can sue Promisee on the existing obligation between them.

Front 343

X contracts w/ Y to perform janitorial services. Y then delegates the contractual duty to perform janitorial services to Z. Who is [1] Delegating party? [2] Delegate? [3] Obligee?

Back 343

[1] Delegating party – Y [2] Delegate – Z (person to whom the duties are being delegated; [3] Obligee – X (the one to whom the duties are owed)

Front 344

What’s the difference between delegate and assign?

Back 344

You assign rights and you delegate duties. When they say assign duties, the mean delegate.

Front 345

Is the duty delegable? – Contract provisions – What if the K prohibits assignments?

Back 345

They really mean no delegation. More likely, the K won’t say.

Front 346

At CL, delegation is possible unless:

Back 346

[1] Special skills, or [2] special reputation

Front 347

Do you need the consent of the oblige for delegation?

Back 347

No.

Front 348

Do you need consideration for delegation?

Back 348

No

Front 349

What are the consequences of delegation?

Back 349

[1] Delegating party remains liable. [2] Delegate liable to oblige only if he receives consideration from delegating party.

Front 350

Compare an assignment of rights with a 3pb situation

Back 350

w/ 3pb, you are adding a person w/ rights. With assignment, you are substituting one person with rights for another.

Front 351

What’s the CL rule of assignments?

Back 351

An assignment cannot substantially change the duties of the obligor. Otherwise, it’s ok

Front 352

Can you assign output/requirement Ks?

Back 352

These can be assigned. UCC now says requirements can’t be unreasonably disproportionate from year to year or to the original requirements.

Front 353

What should you look at when analyzing contracts to see how they address assignments?

Back 353

Determine whether the K [1] merely prohibits assignments or [2] also invalidates assignments.

Front 354

What does a prohibition of assignments mean for the rights and powers?

Back 354

It takes away the right to assign, but not the power to make effective assignment.

Front 355

What is the language required for a present assignment?

Back 355

“I assign”, not “I promise to assign” or “I will assign” or “I intend to give you an assignment.” (Note: it is not necessary to use the word “assign”; any accepted words of transfer will suffice.

Front 356

Do you need a writing to have an effective assignment?

Back 356

Absent a statute to the contrary, a writing is not required to have an effective assignment.

Front 357

What kinds of assignments need to be in writing?

Back 357

[1] Wage assignments; [2] assignments of an interest in land; [3] assignments of choses in action worth more than $5000; [4] assignments intended as security interests under A9 of UCC

Front 358

Assignee vs. Obligor – generally

Back 358

Assignee takes the place of the assignor. The obligor generally does not participate in the assignment.

Front 359

What’s the general rule of gratuitous assignments?

Back 359

It’s possible to make one. Generally, a gift assignment can be freely revoked.

Front 360

How can revocation of a gratuitous assignment be revoked?

Back 360

Accomplished directly or indirectly.

Front 361

How can revocation of a gratuitous assignment be indirectly revoked?

Back 361

By [1] the death or bankruptcy of the assignor, [2] the assignor taking performance directly from the obligor, or [3] the making of a subsequent assignment of the same right by the assignor to another.

Front 362

What’s the general rule pertaining to claims among assignees?

Back 362

Since a later gift assignment revokes an earlier gift assignment, the general rule for resolving claims among assignees who did not provide consideration is a last in time rule.

Front 363

When is a gratuitous assignment not revocable?

Back 363

If: [1] the assignment is in a writing either signed or under seal that is delivered by the assignor, or [2] the assignment is accompanied by delivery of a writing of a type customarily accepted as a symbol or as E of the right assigned. Ex: deed of gift, non-negotiable promissory note, savings bank book, life insurance policy, registered bond

Front 364

A gratuitous assignment ceases to be revocable to the extent that before the assignee’s right is terminated:

Back 364

[1] the obligor has already performed (i.e., there has been payment or satisfaction of the obligation); or [2] the assignee has obtained a judgment against the obligor, or [3] the assignee has entered into a new K w/ the obligor by Novation; or [4] the assignee has relied on the assignment in a way that is reasonable, foreseeable, and detrimental.

Front 365

If the gift assignment is not revocable, will it be revoked by later assignment? What’s the priority?

Back 365

It will not be revoked by a later assignment and will take priority over a later assignment.

Front 366

What’s the general rule for assignments for consideration?

Back 366

The first assignee for consideration has priority over all subsequent assignees and over all creditors of the assignor.

Front 367

A subsequent assignee for value can take priority over earlier assignees if it is _________ and:

Back 367

Without notice; and [1] it is the first to obtain a judgment against the obligor, or [2] it is the first to obtain payment from the obligor, or [3] it enters into a new K with the obligor by novation that supersedes the obligation running to the assignor in favor of the new one running to him (this assumes that the obligor also had no knowledge of the prior assignment at the time of the novation), or [4] it gets the first delivery of a tangible token or writing, the surrender of which is required by the obligor’s K (a symbolic writing), or [5] it can set up an estoppel against the first assignee (e.g., the first assignee permits the assignor to retain a document that would indicate to a reasonable person that the assignor was the sole owner of the right)

Front 368

When there is an assignment for value, what does the assignor warrant to the assignee? What would be an example? What happens if the obligor is incapable of performing?

Back 368

That the rights assigned actually exist and that he will do nothing to impair the value of the assignment. E.g., the warranty is breached where the assignee brings an action against the obligor to enforce the obligation and the obligor successfully asserts against the assignee a defense which it has against the assignor. (Remember, the obligor can raise any defenses against the assignee that it has against the assignor.) Note: The assignor will not be liable to the assignee simply b/c the obligor is incapable of performing. The assignor does not warrant what the obligor will do.

Front 369

CRIM LAW

Back 369

CRIM LAW

Front 370

What are the major Specific Intent crimes?

Back 370

Inchoate: [1] Solicitation; [2] Attempt; [3] Conspiracy… [4] 1st Degree premeditated murder; [5] Assault; [6] Larceny & robbery; [7] Burglary… Defraud: [8] Forgery; [9] False Pretenses; [10] Embezzlement

Front 371

Define purposely

Back 371

When a person’s conscious object is to engage in certain conduct or cause a certain result.

Front 372

Define knowingly

Back 372

When a person is aware that his conduct is of a particular nature or knows that his conduct will necessarily or very likely cause a particular result.

Front 373

Define recklessly

Back 373

When a person knows of a substantial and unjustifiable risk and consciously disregards it.

Front 374

What are the elements of conspiracy?

Back 374

It requires [1] an agreement between two or more persons; [2] an intent to enter into the agreement; and [3] an intent by at least two persons to achieve the objective of the agreement. A majority of states now require an overt act, but an act of mere preparation is enough.

Front 375

What are the elements of attempt?

Back 375

Intent to commit a crime that falls short of completing the crime.

Front 376

Shorthand ways to remember the Four insanity tests

Back 376

[1] M’Naghten - Δ does not know right from wrong; [2] Irresistible Impulse – an impulse that Δ cannot resist; [3] Durham – but for mental illness, Δ would not have done the act; [4] ALI or MPC – combination of M’Naghten and irresistible impulse.

Front 377

What is the imperfect self-defense doctrine?

Back 377

When one of the elements of justified deadly force is missing ([1] w/o fault; [2] confronted with unlawful force; [3] threatened w/ imminent death or great bodily harm). It can reduce murder to manslaughter.

Front 378

What is battery?

Back 378

The unlawful application of force to the person of another resulting in either bodily injury or an offensive touching. A Completed Assault!

Front 379

What are aggravated batteries?

Back 379

[1] battery w/ a deadly weapon; [2] battery resulting in serious bodily harm; [3] battery of a child, woman, or police officer

Front 380

What is assault?

Back 380

Either: [1] an attempt (specific intent) to commit a battery or [2] the intentional creation – other than mere words – of a reasonable apprehension in the mid of the victim of imminent bodily harm. If there is actual touching, it is battery. Touching = NO assault

Front 381

What is aggravated assault?

Back 381

Assault w/ deadly weapon or intent to main or rape. Treated more severely than simple assault.

Front 382

Think of assault as ….

Back 382

Two separate crime: [1] attempted battery assault – a specific intent crime (Δ must intend to commit crime) and [2] creation of reasonable apprehension assault.

Front 383

CL – What is murder?

Back 383

The unlawful killing of a human being w/ malice aforethought.

Front 384

CL – when does malice aforethought exist?

Back 384

If there are no facts reducing the killing to voluntary manslaughter or excusing (i.e., giving rise to defense) and it was committed w/ one of the following states of mind: [1] Intent to kill; [2] intent to inflict great bodily injury; [3] reckless indifference to an unjustifiably high risk of human life (abandoned/malignant/depraved heart); or [4] intent to commit a felony (felony murder)

Front 385

CL – What is voluntary manslaughter?

Back 385

A killing that would be murder but for the existence of adequate provocation.

Front 386

Exam tip for Voluntary Manslaughter

Back 386

Note the interplay between reasonable person and Δ: [1] Sudden and intense passion that would cause reasonable person to lose control; [2] Δ lost control; [3] not enough time for reasonable person to cool off; [4] Δ did not cool off.

Front 387

What is imperfect self-defense and what does it do?

Back 387

Murder may be reduced to manslaughter even though: [1] Δ was at fault in starting altercation; or [2] Δ unreasonably but honestly believed in necessity of responding w/ deadly force; [3]

Front 388

When is a killing considered as involuntary manslaughter?

Back 388

If it was committed with criminal negligence (grossly negligent) or during the commission of an unlawful act (misdemeanor or felony not included w/in the felony murder rule)

Front 389

On the MBE, if it just says “manslaughter” what should you assume?

Back 389

Voluntary

Front 390

Statutory Modification of CL Classification of Murder – A murder will be 2nd degree murder unless it comes under the following circumstances which would make it 1st Degree Murder:

Back 390

[1] Deliberate and Premeditated; [2] Felony murder – if murder is committed during perpetration of enumerated felony (usually arson, robbery, burglary, rape, mayhem, & kidnapping) – other than these, it will be 2nd; [3] Others – killings performed in other ways like torture.

Front 391

Does voluntary intoxication apply to 1st degree murder?

Back 391

Yes, b/c it’s based on premeditation which is specific intent. If Δ was so intoxicated that he was unable to premeditate, he can be convicted only of 2nd degree murder, which requires only reckless indifference to human life (and for which voluntary intoxication is NOT a defense)

Front 392

What is felony murder and what is implied?

Back 392

Any death caused in the commission of, or in an attempt to commit, a felony is murder. Malice is implied from the intent to commit the underlying felony.

Front 393

What are limitations on liability for the felony murder rule?

Back 393

[1] Δ must be guilty of underlying felony (if he has Δ to underlying felony, he has Δ to felony murder rule); [2] felony must be distinct form killing itself; [3] Death must have been a foreseeable result of the felony; [4] Death must have been caused before the Δ’s immediate flight from the felony –once Δ reaches temporary safety, subsequent deaths are not felony murder; [5] Δ is not liable for felony murder when a co-felon is killed; [6] under agency theory, Δ is not liable when an innocent party is killed unless the death is caused by Δ or his agent (accomplice).

Front 394

What is false imprisonment?

Back 394

Unlawful confinement of a person without his valid consent. It’s not confinement to simply prevent a person from going where she desires to go, as long as alternative routes are available to her.

Front 395

What is kidnapping?

Back 395

Unlawful confinement of a person that involves either [1] some movement of the victim; or [2] concealment of the victim in a secret place.

Front 396

What is rape?

Back 396

Unlawful carnal knowledge of a woman by a man, not her husband, without her effective consent. Slightest penetration is sufficient.

Front 397

Larceny consists of:

Back 397

* [1] A Taking; [2] And carrying away; [3] Of tangible personal property; [4] Of another; [5] By trespass; [6] With intent to permanently deprive. ------ **[1] A taking of (obtaining control); [2] And carrying away (asportation – slight movement enough); [3] Of tangible personal property (excluding realty, services, and intangibles, but including written instruments embodying intangible rights such as stock certificates); [4] Of another with possession; [5] By trespass (without consent or by consent induced by fraud); [6] With intent to permanently deprive that person of her interest in the property (must exist at time of taking or it’s not larceny).

Front 398

What is embezzlement?

Back 398

* [1] the fraudulent; [2] Conversion; [3] of Personal Property; [4] of another; [5] By a person in lawful possession of that property ------------- **[1] the fraudulent; [2] Conversion (i.e., dealing w/ the property in a manner inconsistent w/ the arrangement by which Δ has possession); [3] of Personal Property; [4] of another; [5] By a person in lawful possession of that property

Front 399

What are the elements of false pretenses?

Back 399

* [1] Obtaining title; [2] to personal property of another; [3] By an intentional false statement of past or existing fact (false promise to do something in future will not ground liability); [4] with intent to defraud the other. -----** Victim must actually be deceived by, or act in reliance on, the misrepresentation

Front 400

Robbery consists of:

Back 400

* [1] A taking; [2] of personal property of another; [3] from the other’s person or presence (including anywhere in his vicinity); [4] By force or threats of immediate death or physical injury to the victim, a member of his family or some person in victim’s presence; [5] with the intent to permanently deprive him of it. (3, 4, 5 are assault) ------ ** Robbery = Larceny + Assault

Front 401

What is extortion?

Back 401

Corrupt collection of an unlawful fee by an officer under color of office. It often will consist of obtaining property by means of threats to do harm or to expose information.

Front 402

What are the elements of Receipt of Stolen Property?

Back 402

[1] Receiving possession and control; [2] of “stolen” personal property; [3] Known to have been obtained in a manner constituting a criminal offense; [4] by another person; [5] with the intent to permanently deprive the owner of his interest in it.

Front 403

What are the elements of forgery?

Back 403

[1] Making or altering (by drafting, adding, or deleting); [2] A writing w/ apparent legal significance (e.g., a K not a painting); [3] So that it is false; i.e., representing that it is something that it is not, not merely containing a misrepresentation (e.g., a fake warehouse receipt, but not an inaccurate real warehouse receipt); [4] with intent to defraud (although no one need actually have been defrauded)

Front 404

What are the elements of Uttering a Forged Document?

Back 404

[1] The malicious; [2] Destruction of or damage to; [3] the property of another. Malice requires no ill will or hatred. But it does require that the damage or destruction have been intended or contemplated by the Δ.

Front 405

What are the elements of burglary?

Back 405

[1] Breaking; [2] and Entry; [3] of a dwelling; [4] Of Another; [5] At nighttime; [6] With the intent to commit a felony in the structure

Front 406

Burglary – What is Breaking?

Back 406

Creating or enlarging an opening by at least minimal force, fraud, or intimidation; if the Δ had the resident’s consent to enter, the entry is not a breaking. The breaking can be actual or constructive. If a door is open, then there is no breaking. But look for an interior door to be opened.

Front 407

What elements does arson contain?

Back 407

* [1] Malicious; [2] Burning; [3] of the dwelling; [4] of another --- **[1] Malicious = intentional or with reckless disregard of an obvious risk; [2] Burning = requiring some damage to the structure caused by fire. No water damage, no smoke damage, and no explosions (unless it causes the fire). [3] No barns, no discos. BUT, MBE questions may assume that it can apply to structures other than dwellings; [4] You can’t own it

Front 408

CRIM PRO

Back 408

CRIM PRO

Front 409

What is the exclusionary rule?

Back 409

Judge-made doctrine that prohibits the introduction of E obtained in violation of a Δ’s 4th, 5th, or 6th rights. Illegally obtained E is not admissible at trial and all fruits of the poisonous tree must also be excluded.

Front 410

What are exceptions to the fruits of poisonous tree doctrine?

Back 410

[1] statements obtained in violation of Miranda; [2] Δ’s intervening act of free will; [3] inevitable discovery; [4] violations of knock & announce rule

Front 411

Exclusionary rule is inapplicable to:

Back 411

[1] grand juries (unless E was obtained in violation of fed. wiretapping statute); [2] Civil Proceedings; [3] Internal Agency Rules; [4] Parole Revocation Proceedings

Front 412

What constitutes a seizure?

Back 412

When a reasonable person would believe that she is not free to leave or terminate an encounter with the government

Front 413

An arrest occurs when …

Back 413

The police take a person into custody against her will for purposes of criminal prosecution or interrogation.

Front 414

When can the police Stop & Frisk?

Back 414

When they have a reasonable suspicion of criminal activity or involvement of a crime, supported by articulable facts. If they have reasonable suspicion that detainee is armed & dangerous, they may frisk for weapons.

Front 415

What is the duration & scope of a stop & frisk?

Back 415

No longer than necessary to conduct a limited investigation to verify the suspicion. May ask for name and arrest upon refusal. Can arrest if PC for arrest arises. Property seizures are valid if based on reasonable suspicion.

Front 416

To be valid, a roadblock must:

Back 416

[1] Stop cars on basis of some neutral, articulable standard; [2] be designed to serve purposes closely related to a particular problem pertaining to automobiles and their mobility.

Front 417

Questions to ask in search & seizure situations

Back 417

[1] Does Δ have a 4th right (seizure by government concerning a place or thing in which the Δ had a reasonable expectation of privacy)? [2] Did gov have a valid warrant (issued by a neutral and detached magistrate on a showing of PC and reasonably precise as to the place to be searched and items to be seized)? [3] If the police did not have a valid warrant, did they make a valid warrantless search and seizure?

Front 418

What are the warrantless search exceptions? (mnemonic)

Back 418

PI CHASE – [1] Plain View; [2] Incident to Lawful Arrest: [3] Consent; [4] Hot Pursuit; [5] Auto Search; [6] Stop & Frisk; [6] Evanescent Evidence (Exigent Circumstances)

Front 419

To have a 4th right, a person must have …

Back 419

His own reasonable expectation of privacy wrt the place searched or item seized. Determination made on totality of circumstances

Front 420

A person has a legitimate expectation of privacy any time:

Back 420

[1] he owned or had a right to possession of the place searched; [2] place searched was his home, whether or not he owned or a had a right to possession of it; or [3] he was an overnight guest of owner of place searched

Front 421

There is no reasonable expectation of privacy in: (mnemonic)

Back 421

Very Gross Dog Vapors Harass So Brody Can’t Learn; [1] Voice; [2]Garbage; [3] Driveway; [4] Vehicle; [5] Handwriting; [6] Smell; [7] Bank records; [8] Curtilage; [9] Land visible from public place

Front 422

A warrant will be issued only if…

Back 422

There is PC to believe that seizable E will be found on person or premises at time warrant is executed. Officers must submit to magistrate an affidavit setting forth circumstances to allow mag to make independent determination of PC

Front 423

What’s test for informers?

Back 423

Totality of circumstances. Anonymous informer is ok

Front 424

A search warrant based on affidavit will be held invalid if all three are met:

Back 424

[1] False statement was included in affidavit by affiant; [2] affiant intentionally or recklessly included the false statement; and [3] false statement was material to finding of PC. Δs are rarely successful in this challenge.

Front 425

Incident to a lawful arrest, the police may…

Back 425

Search the person and areas into which he might reach to obtain weapons or destroy E (including entire passenger area of car). They can also make a protective sweep of area if they believe accomplices are present.

Front 426

What is needed for the auto exception to warrant?

Back 426

PC that vehicle contains fruits, instrumentalities, or E of a crime. They may search whole vehicle and any container that might reasonably contain item which they had PC to search. They can also tow auto to station and search later.

Front 427

Plain View doctrine – police may make a warrantless seizure when they:

Back 427

[1] are legitimately on premises; [2] discover E, fruits or instrumentalities of crime, or contraband; [3] see such E in plain view; and [4] have PC to believe that item is E, contraband, or fruit or instrumentality of crime. Ex: If police is looking for handgun in drawer, if he finds coke, that’s considered plain view.

Front 428

What’s the standard for stop & frisk?

Back 428

Articulable and reasonable suspicion.

Front 429

Describe hot pursuit, Evanescent E and other emergencies and the need for warrants

Back 429

Police in hot pursuit of a fleeing felon may make warrantless search and seizure and may even pursues the suspect into private dwelling; police may seize w/o a warrant E likely to disappear before warrant can be obtained; and contaminate food or drugs, persons injured or threatened w/ injury, and burning fires justify warrantless searches & seizures.

Front 430

How can you get a warrant for administrative inspections and searches?

Back 430

More lenient than for other searches. You need a showing of general and neutral enforcement plan

Front 431

What are the exceptions permitting warrantless searches?

Back 431

The following warrantless searches have been upheld: [1] seize spoiled or contaminated food; [2] admin search of biz w/in highly regulated industry; [3] inventory searches of arrestees; [4] airline passengers; [5] searches of parolees and their homes; [6] government employees’ desks and file cabinets; [7] Drug tests of railroad employees involved in accident; [8] drug tests of persons seeking customs employment in positions connected to drug interdiction; [9] drug tests of public school students who participate in extracurricular activities

Front 432

A valid warrant authorizing a wiretap may be issued if:

Back 432

[1] there is showing of PC; [2] suspected persons involved in the conversations to be overheard are name; [3] warrant describes w/ particularity the conversations that can be overheard; [4] wiretap is limited to a short period of time; [5] wiretap is terminated when desired info has been obtained; [6] return is made to court, showing what conversations have been intercepted.

Front 433

6th Am guarantees …

Back 433

The right to the assistance of counsel in criminal proceedings

Front 434

The 6th guarantees the right to the assistance of counsel in all criminal proceedings, which include ….

Back 434

All critical stages of a prosecution after judicial proceedings have begun (formal charges have begun)

Front 435

What does the 6th prevent police from doing?

Back 435

Deliberately eliciting an incriminating statement from a Δ outside the presence of counsel after the Δ has been charged unless he has waived his right to counsel.

Front 436

A Δ who is arrested but not yet charged has what kind of right and doesn’t have what kind of right?

Back 436

has a 5th right to counsel under Miranda but does not have 6th right to counsel

Front 437

Even if a Δ’s 6th rights have attached regarding the charge for which he is being held, he may be questioned regarding ______ without violating the 6th right to counsel.

Back 437

Unrelated, uncharged offenses

Front 438

Under the 6th, two offenses will be considered different if ….

Back 438

Each requires proof of an additional element that the other crimes does not require.

Front 439

A person in custody must, prior to interrogation, be informed, in substance, that:

Back 439

[1] he has the right to remain silent; [2] anything he says can be used against him in court; [3] he has the right to the presence of an attorney; [4] if he cannot afford an attorney, one will be appointed for him if he so desires; [4.5] you can terminate interrogation at any time

Front 440

Does a failure to give Miranda warnings violate the 6th?

Back 440

No, it doesn’t violate the 6th’s right to counsel

Front 441

Does a failure to give Miranda warnings violate the 5th?

Back 441

Yes - violates the 5th’s right to be free from compelled self-incrimination

Front 442

What does interrogation include?

Back 442

Any words or conduct by police that they should know would likely elicit a response from the Δ.

Front 443

What are the differences between 5th and 6th right to counsels?

Back 443

One circumstance under 5th, which is when somebody after hearing Miranda requests a lawyer. He needs an attorney for custodial interrogation. All other times you request a lawyer, it invokes your 6th right to counsel. This is offense specific and the attorney would only have to be present if police is asking questions about that case.

Front 444

Describe the hearing for a admissibility of Id E

Back 444

Admissibility should be determined at a suppression hearing in absence of jury, but exclusion of jury is not C’ly required. The gov bears burden of proving that: [1] counsel was present; [2] accused waived counsel; or [3] there is an independent source of in-court id. Δ must prove an alleged DP violation.

Front 445

Three major differences between GJ proceedings and criminal trials:

Back 445

[1] Δ (GJ W) has no right to have counsel present during his GJ testimony; [2] GJ may consider E that would be excluded at criminal trial (e.g., illegally obtained E or hearsay); and [3] the Δ (GJ W) must appear if called, although he can refuse to answer specific questions on the grounds that they may incriminate him.

Front 446

A Δ is incompetent to stand trial if he either:

Back 446

[1] Lacks a rational as well as factual understanding of the charges & proceedings, or [2] lacks sufficient present ability to consult w/ his lawyer w/ a reasonable degree of understanding. Δ must show by preponderance of E.

Front 447

When do you have a right to trial by jury?

Back 447

If imprisonment of more than 6 months is authorized. But if it’s ≤ 6 months, there is no C’l jury trial right.

Front 448

How do you use an EP-based attack on peremptory challenges?

Back 448

[1] Δ must show facts or circumstances that raise an inference that exclusion was based on race or gender; [2] upon such showing, Ø must come forward w/ race-neutral explanation for strike. [3] Judge then determines whether Ø’s reason was the genuine reason or merely a pretext.

Front 449

Indigent Δs get counsel at:

Back 449

[1] custodial police interrogation; [2] post-indictment interrogation, whether or not custodial; [3] preliminary hearings to determine PC to prosecute; [4] arraignment; [5] post-charge lineups; [6] guilty plea and sentencing; [7] felony trials; [8] misdemeanor trials when imprisonment is actually imposed or when suspended sentence is imposed; [9] overnight recesses during trial; [10] appeals as a matter of right; [11] appeals of guilty pleas

Front 450

At what circumstances is there no right to counsel?

Back 450

[1] blood sampling; [2] taking of handwriting or voice exemplars; [3] precharge or investigative lineups; [4] photo id’s; [5] preliminary hearings to determine PC to detain; [6] brief recesses during Δ’s testimony at trial; [7] discretionary appeals; [8] parole & probation revocation proceedings; [9] post-conviction proceedings

Front 451

Which amendment includes the right to effective counsel?

Back 451

6th

Front 452

What circumstances constitute ineffective assistance?

Back 452

[1] Deficient performance by counsel; and [2] but for the deficiency, the result of the proceeding would have been different (e.g., Δ would not have been convicted or his sentence would have been shorter)

Front 453

What Am provides the ability to confront adverse witnesses?

Back 453

6th

Front 454

When can a Δ’s statement of confession be used against a co-Δ?

Back 454

[1] All portions referring to the other Δ are eliminated; [2] the confessing Δ takes the stand and subjects himself to cross-X wrt truth or falsity of what the statement asserts; or [3] the confession of the nontestifying co-Δ is being used to rebut the Δ’s claim that his confession was obtained coercively.

Front 455

What is a testimonial statement?

Back 455

At a minimum, statements from a preliminary hearing, a GJ hearing, a former trial, or police interrogation conducted to establish or prove past acts.

Front 456

What’s the burden of proof in all criminal cases?

Back 456

DPC requires in all criminal cases that the state prove guilt beyond a reasonable doubt. But state may generally impose the burden of proof upon the Δ in regard to an affirmative defense like insanity or self-defense

Front 457

What effect is a mandatory presumption or a presumption that shifts the burden of proof to Δ?

Back 457

It violates the 14th’s requirement that the state prove every element of the crime beyond a reasonable doubt.

Front 458

What does the judge have to do when a Δ wants to take a guilty plea?

Back 458

Determine that it’s voluntary and intelligent. Must be done by addressing the Δ personally in open court and on the record.

Front 459

What does the judge need to determine that the Δ understands in order to take a guilty plea?

Back 459

[1] nature of the charge & crucial elements of crime charged; [2] maximum possible penalty and mandatory minimum; and [3] that he has a right not to plead guilty and that if he does plead guilty, he waives the right to trial

Front 460

A plea can be set aside for:

Back 460

[1] involuntariness (failure to meet standards for taking plea); [2] lack of jdxn; [3] ineffective assistance of counsel; or [4] failure to keep the plea bargain

Front 461

What is it we have to know about death penalty?

Back 461

[1] Any death penalty statute that doesn’t give Δ a chance to present mitigating facts and circumstances is unconstitutional. [2] There can be no automatic category for imposition of the death penalty. (Ex: if you kill PO, you’ll get death penalty – this is unC’l); [3] The state may not by statute limit the mitigating factors; all relevant mitigating evidence must be admissible or the statute is unconstitutional. [4] Only a jury and not a judge may determine the aggravating factors justifying imposition of the death penalty.

Front 462

Death Penalty 1st sentence

Back 462

[1] Any death penalty statute that doesn’t give Δ a chance to present mitigating facts and circumstances is unconstitutional.

Front 463

Death Penalty 2nd sentence

Back 463

[2] There can be no automatic category for imposition of the death penalty. (Ex: if you kill PO, you’ll get death penalty – this is unC’l)

Front 464

Death Penalty 3rd sentence

Back 464

[3] The state may not by statute limit the mitigating factors; all relevant mitigating evidence must be admissible or the statute is unconstitutional.

Front 465

Death Penalty 4th sentence

Back 465

[4] Only a jury and not a judge may determine the aggravating factors justifying imposition of the death penalty.

Front 466

When does DJ attach?

Back 466

In a jury trial at the empanelling and swearing of the jury. In bench trials, it attaches when 1st W is sworn. Does not attaché in civil proceeding other than juvenile proceedings. Commencement of a juvenile proceeding bars a subsequent criminal trial for same offense.

Front 467

What are exceptions to DJ that permit a retrial of Δ even if jeopardy has attached?

Back 467

[1] If first trial ended in hung jury; [2] if there was manifest necessity to abort original trial or when termination occurs at behest of Δ on any ground not constituting acquittal on merits; [3] state may retry Δ who has successfully appealed a conviction unless ground for reversal was insufficient E to support a guilty verdict. Retrial is permitted when reversal is based on the weight (rather than sufficiency) of the E. On retrial, a Δ may not be tried for a greater offense than that for which he was convicted. A harsher sentence may be imposed for reasons other than vindictiveness for taking an appeal, but if the jury found that death penalty was not appropriate in the first trial, a death sentence may not be imposed at the 2nd trial.

Front 468

DJ – what amendment and what does it say?

Back 468

5th – person may not be retried for same offense once jeopardy has attached

Front 469

Two crimes are the same offense unless …

Back 469

Each crime requires proof of an additional element that the other does not require, even though some of the same facts may be necessary to prove both crimes. 2 crimes do not constitute the same offense if each crime requires proof of additional element that the other does not.

Front 470

An exception to the DJ bar exists if …

Back 470

If unlawful conduct that is subsequently used to prove the greater offense [1] has not occurred at the time of prosecution for the lesser offense or [2] has not been discovered despite due diligence.

Front 471

The DJ prohibits only …

Back 471

Repetitive criminal prosecutions. So a state could bring a civil action even after a criminal trial. OR, the gov can bring a criminal trial after a civil trial has been brought unless the statutory scheme is to impose a criminal penalty.

Front 472

What is collateral estoppel?

Back 472

A Δ may not be tried or convicted of a crime if a prior prosecution by that sovereignty resulted in a factual determination inconsistent with one required for conviction.

Front 473

Who can assert the privilege against compelled self-incrimination?

Back 473

Only natural persons, not corps or partnerships. The privilege is personal and so may be asserted by a Δ, W, or party only if the answer to the question might tend to incriminate him.

Front 474

What’s the simplified rule for self-incrim priv for civil/criminal?

Back 474

Use it (in civil) or lose it (in crim). You have to assert your right if you get asked, otherwise you waive it for all subsequent criminal prosecutions.

Front 475

What is the scope of protection of self-incrim privilege?

Back 475

Only testimonial or communicative E and not real or physical E. To be considered testimonial, it must relate a factual assertion or disclose info. Producing documents does NOT involve testimonial self-incrimination.

Front 476

What are the two most important things to remember about 5th self-incrim priv?

Back 476

[1] Only testimonial E is protected. Thus, a Δ has no self-incrim basis to object to a lineup or other ID procedure – even if he is asked to say certain words (e.g., “your money or your life”). This procedure does not involve testimonial E; the words are used for ID purposes and not as testimony. [2] Likewise, only compelled testimonial E is privileged. Thus, if Δ produced a writing of his own free will (e.g., took incriminating notes in a meeting), the police may seize this writing or the Δ may be compelled to produce it by subpoena, b/c he was not compelled to make the statement originally.

Front 477

What test is used to analyze Ø’s statement about Δ’s silence at trial?

Back 477

Harmless error

Front 478

How do you eliminate the priv against self-incrim?

Back 478

[1] Grant of immunity; [2] No possibility of incrim; [3] Waiver of priv

Front 479

What is use and derivative use immunity and is it sufficient?

Back 479

Yes, it’s sufficient. It guarantees that the W’s testimony and E located by means of the testimony will not be used against the W. However, the W may still be prosecuted if the Ø shows that the E to be used against the W was derived from a source independent of the immunized testimony.

Front 480

Is immunized testimony voluntary or involuntary? Can you use immunized testimony to impeach? What about perjury?

Back 480

Testimony obtained by a promise of immunity is coerced and therefore involuntary. Thus, immunized testimony may not be used for impeachment of a Δ’s testimony at trial. However, any immunized statements, whether true or untrue, can be used in a trial for perjury.

Front 481

What rights must be given to a child during delinquency proceeding?

Back 481

[1] written notice of charges; [2] assistance of counsel; [3] opportunity to confront and cross-X Ws; [4] the right not to testify; [5] the right to have guilt established by proof beyond reasonable doubt.

Front 482

Is the owner of personal property constitutionally entitled to notice & hearing before the property is seized for a forfeiture proceeding?

Back 482

No. But it is required before final forfeiture of the property.

Front 483

Is the owner of real property constitutionally entitled to notice & hearing before the property is seized for a forfeiture proceeding?

Back 483

Yes. Unless the gov can prove that exigent circumstances justify immediate seizure.

Front 484

PROPERTY

Back 484

PROPERTY

Front 485

What are the two strategies for property questions?

Back 485

[1] Identify & describe the three interests in land – (a) Estate, (b) Easement, (c) Restrictive Covenant; [2] How can these interests be acquired, retained, and transferred?

Front 486

General rule of the law of waste:

Back 486

Life tenant maintains the estate. Key word is maintain which expresses BOTH the maximum and the minimum that the life tenant can do to the land.

Front 487

What is permissive waste?

Back 487

Failure to maintain – Tenant must do three things to avoid liability for permissive waste – Repairs, Taxes, and mortgage debt

Front 488

The types of defeasible fees are:

Back 488

[1] Fee Simple Determinable; [2] Fee Simple subject to condition subsequent; [3] fee simple subject to executory interest

Front 489

What’s the traditional statement of RAP?

Back 489

No interest is good unless it must vest, if at all, not later than 21 years after the death of some life in being at the creation of the interest.

Front 490

What’s the modified version of RAP?

Back 490

No interest will be valid unless it must vest – if it is going to vest all– w/in 21 years after the death of some life in being who was alive at the moment the conveyance was made.

Front 491

What key question should you always ask under RAP?

Back 491

Could this future interest possibly vest in the grantee outside the time period of the Rule (i.e., is it possible that everyone alive at the time of the grant dies – plus more than 21 years go by – before that interest might vest?) If the answer is yes, then the interest is void.

Front 492

What are the four unities and what are they test for?

Back 492

Joint tenancy – Unity of TIME; Unity of TITLE; Unity of INTEREST; Unity of POSSESSION

Front 493

Describe the Four Unities test

Back 493

TTIP – [T] Unity of TIME – all joint tenancy interests must have vested at the same time; [T] Unity of TITLE – The grant to all joint tenants must be by the same instrument; [I] Unity of Interest – All joint tenants must take the same kind and same amount of interest; [P] Unity of Possession – all joint tenants must have same/identical rights of possession.

Front 494

What are the magic words that must be used to create a joint tenancy?

Back 494

“as joint tenants, with right of survivorship”; or “in joint tenancy with right of survivorship”

Front 495

What are the four ways in which a j/t can be severed?

Back 495

[1] Sale; [2] Mortgage; [3] Contract of Sale; [4] Creditor’s Sale of the interest in j/t -- [1] Ringo conveys ¼ of his interest in the j/t by deed to Bob. [2] In 1971 Ringo mortgages his ¼ interest in the j/t. [3] On Jan. 1, Ringo enters into a K of sale of his interest in the j/t, w/ closing to be on 4/1. (Severance happens on Jan.1 b/c of Doctrine of Equitable Conversion) [4] Suppose Ringo had business reversals and a creditor sought to reach his interest in the j/t. (if Ringo dies before Creditor’s sale, there is no severance.)

Front 496

What is the majority rule for mortgaging an interest in a j/t? The minority rule?

Back 496

[Majority Rule] In a lien theory state, there is NO severance of the j/t. When the mortgage is executed, a lien attaches to the title, but title is not transferred. So the unities are NOT disturbed. [Minority Rule] In a title theory state there is a severance of the j/t. When the mortgage is executed, title passes from mortgagor to mortgagee, even though title goes back to the mortgagor when the mortgage is satisfied. Unities are disturbed.

Front 497

What are the unities in a Tenancy by the Entirety?

Back 497

The Four Unities + Unity of Marriage

Front 498

Tenancy by the Entirety – How can you terminate?

Back 498

[1] Death; [2] Mutual agreement in writing; [3] divorce; [4] Execution by a joint creditor (an individual creditor can’t reach)

Front 499

In a concurrent estate of land, what are the incidents of co-ownership?

Back 499

[1] Possession; [2] Accountability; [3] Contribution. “Co-Tenant” refers to any of the multiple owners of any of the three concurrent estates)

Front 500

What are the three concurrent estates of land?

Back 500

[1] Joint Tenancy; [2] Tenancy in Common; [3] Tenancy by the Entirety

Front 501

Concurrent Estates of Land – Incidents of Co-ownership – Accountability – general rule

Back 501

One co-tenant does not have to account to another co-tenant for his share of the profits, subject to four exceptions. (hint) [1] Ouster – accounting is required if one co-tenant is either keeping a co-tenant off the property; or claiming a right of exclusive possession; [2] Agreement to share; [3] Lease of the property by a co-tenant to third party; [4] Depletion of natural resources

Front 502

Concurrent Estates of Land – Incidents of Co-ownership – Accountability – 4 exceptions to general rule

Back 502

[1] Ouster – accounting is required if one co-tenant is either keeping a co-tenant off the property; or claiming a right of exclusive possession; [2] Agreement to share; [3] Lease of the property by a co-tenant to third party; [4] Depletion of natural resources

Front 503

Periodic Tenancy – Creation – Three ways

Back 503

[1] By express agreement; [2] by implication (no agreement as to duration); [3] By operation of law – two ways – (a) Oral lease that violates SOF, (b) Holdover Tenant

Front 504

What is the general rule for creating a periodic tenancy by implication?

Back 504

If the lease does not specify how long the tenancy is to last, then it is presumed to be a periodic tenancy measured by the rent payment (e.g., a month-to-month periodic tenancy arises if the rent is to be paid monthly)

Front 505

What two ways can a periodic tenancy be created by operation of law?

Back 505

[1] Oral lease that violates the SOF*; [2] Holdover Tenant --- *If an oral 5-year lease was accepted and the first month’s rent was sent and accepted. The landlord’s acceptance of rent checks results in a periodic tenancy that arises by operation of law, even though the lease itself violates SOF. The period covered by the rent check that the landlord accepted determines the period of the tenancy.

Front 506

What are the criteria for notice of termination of a periodic tenancy?

Back 506

*To be valid, notice must satisfy two independent criteria: [1] Enough Time – an amount of time equal to the length of the period of the tenancy except in the case of year-to-year tenancy, which generally requires only 6 months notice; [2] Effective Date – to be valid the effective date specified in the notice must be at the end of the period of the tenancy --- By private agreement in the lease, the parties may lengthen or shorten or otherwise modify these common law notice requirements.

Front 507

Termination of a Tenancy at Will by Operation of Law – 5 ways

Back 507

[1] Death of either party; [2] Waste by Tenant; [3] Assignment by Tenant; [4] Transfer of Title by Landlord; [5] Lease by Landlord to third party

Front 508

What are the landlord’s options in a Tenancy at Sufferance (The Holdover Tenant)?

Back 508

[1] Sue to Evict; [2] Impose a New Periodic Tenancy

Front 509

How can a landlord impose new periodic tenancy in a Tenancy at Sufferance (The Holdover Tenant)?

Back 509

[1] The landlord may elect to treat the tenant as a new periodic tenant; [2] if the old expired tenancy was for less than a year, the new tenancy will be measured by the period covered by the rent payment. In the case of residential property, the new period will usually be month-to-month. [3] In the case of leases for commercial property, if the old, expired tenancy was for a year or more, the new periodic tenancy that the landlord may elect to impose will be for year-to-year. [4] The landlord may not impose a new periodic tenancy is it is not reasonable under the circumstances, e.g., tenant’s moving van is late by a few hours, etc.

Front 510

What are the duties of a tenant?

Back 510

[1] Duty to Pay rent; [2] Duty to maintain premises;

Front 511

What are the duties of a landlord?

Back 511

[1] Duty to deliver possession of the leased premises; [2] Duty regarding Condition of the leased premises; [3] Implied covenant of Quiet enjoyment

Front 512

What is a landlord’s duty to deliver possession of the leased premises?

Back 512

The landlord must deliver possession of the leased premises to the tenant when the lease begins. If the landlord cannot deliver actual possession, the landlord is in breach of the lease.

Front 513

What is a landlord’s duty regarding the condition of leased premises at CL?

Back 513

The landlord has not duty to deliver the leased premises in a habitable condition – lease involves transfer of an estate

Front 514

What is a landlord’s duty regarding the condition of leased premises under the modern majority?

Back 514

There is an implied warranty of fitness or habitability only for residential property. It provides that the leased premises are reasonably suited for residential use. There is no duty for non-residential use.

Front 515

What are the tenant’s remedies for the landlord’s breach of the implied warranty of habitability?

Back 515

[1] tenant can move out and end the lease; [2] tenant can stay on the property and sue for damages; [3] a growing # of states allow the tenant to make reasonable repairs and deduct this cost from future rent payments (“repair & deduct”) tenant must give notice.

Front 516

As a duty of a landlord, what is the general rule for implied covenant of quiet enjoyment?

Back 516

Every lease includes the landlord’s implied promise not to interfere w/ the tenant’s quiet enjoyment of the leased premises. This implied promise is included in every lease – residential, commercial or otherwise.

Front 517

How does a landlord breach the implied covenant of quiet enjoyment?

Back 517

[1] Total eviction; [2] Partial eviction; [3] Constructive Eviction

Front 518

How does a landlord’s partial eviction occur?

Back 518

[1] Where the landlord physically excludes the tenant from only some portion of the leased property.* [2] Can also occur where some third party, who holds paramount title, retakes the property and physically excludes the tenant from that portion of the leased premises. **[1] Landlord takes over a basement and tells tenant he can’t use. Tenant can stay on what’s left and stay for free. Few times where tenant gets the benefit in property law.

Front 519

What’s the general rule for a partial eviction?

Back 519

If there is a partial eviction by someone other than the landlord, the rent is proportionately reduced to reflect the amount taken. Otherwise, it’s free.

Front 520

What is a constructive eviction? When does it occur?

Back 520

This type of breach does not involve an actual physical exclusion of the tenant from all or some part of the leased premises. It occurs where the landlord fails to provide some service that the landlord is obligated to provide and that failure makes the property uninhabitable.

Front 521

What are the three requirements for a constructive eviction?

Back 521

[1] It must be the landlord’s failure to provide some service, not some third party’s failure; [2] There must be a substantial interference with the tenant’s quiet enjoyment of property. [3] Tenant must abandon within a reasonable time.

Front 522

What is the key to knowing how to answer questions regarding assignments?

Back 522

A lease involves both of the following: [1] A lease is a contract, creating privity of contract between the parties to the lease agreement. [2] A lease is also a conveyance of an estate, of an interest in land, thereby creating privity of estate between the parties. These are separate and independent grounds for liability on lease obligations.

Front 523

Assignment – general rule of liability

Back 523

A tenant is liable to the landlord for rent if there is either privity of estate or privity of contract

Front 524

Assignment – who has privity of estate?

Back 524

Only between present landlord and present tenant

Front 525

Assignment – who has privity of contract?

Back 525

Exists only where there is an agreement between the landlord and the particular tenant from whom the landlord seeks to recover the rent.

Front 526

What is the Assignee’s liability on other lease covenants?

Back 526

Covenant (promise) to pay rent always runs w/ the land and therefore is enforceable based on either privity of estate or privity of contract. As to other covenants (promises) contained in the lease, the general rule is that a covenant will run w/ the land if it touches and concerns the land

Front 527

What is a good way to recognize if something touches and concerns the land?

Back 527

If performance of the covenant (promise) makes the land more valuable or more useful, then the covenant touches and concerns the land. * A promise to repair a fence touches and concerns where a promise to pick up the mail in town does not (b/c it’s personal to grantee).

Front 528

What is the general rule for liability of successive landlords on the lease when a tenant sues the landlord?

Back 528

The Original landlord continues to be liable to original tenant b/c of privity of K. But successor landlords may be liable to original tenant if there is either privity o contract – or - privity of estate and the lease covenant runs w/ the land. * But a successor landlord can expressly assume an obligation

Front 529

What are the five defects to the CL rule that no duty is imposed on the landlord in tort situations?

Back 529

[1] Latent defects; [2] Short term lease of a furnished dwelling (summer cottage in Maine rule); [3] Common passageways under Landlord’s control; [4] Negligent repairs undertaken by landlord; [5] Public use exceptions

Front 530

What are the four main steps for dealing with easement questions?

Back 530

[1] Classify the easement; [2] Look at Method of creation; [3] Transfer of Easements; [4] scope of use of easement

Front 531

What are the types of easements?

Back 531

[1] Easements appurtenant; [2] Easements in gross

Front 532

What is an easement appurtenant? What is the burdened property called? The benefited property?

Back 532

Any time the easement directly benefits the use and enjoyment of a specific parcel of land. Burdened property = Servient. Benefitted Property = Dominant

Front 533

What is an easement in gross? What is a classic example?

Back 533

It occurs where there is no dominant estate b/c there is only one parcel of land involved, which is the property burdened by the easement – or the servient estate. Ex: Utility putting pipes underground or a railroad laying tracks.

Front 534

What are the different ways an easement can be created?

Back 534

[1] Express Easement; [2] Implied Easement; [3] Easement by Prescription

Front 535

What are the two ways and express easement may arise?

Back 535

[1] Express grant of an easement to someone else; [2] Express reservation of an easement when land is sold to another person

Front 536

What is the general rule for an express easement?

Back 536

[1] Must be in writing; [2] must be signed by the holder of the servient estate; [3] it must satisfy all the deed formalities. * Cross-reference RP III lecture on the conveyance an interest in land, including deed formalities and recording statutes.

Front 537

How can implied easements arise?

Back 537

[1] previous use by a common grantor (owner)(this can arise when an owner of a large piece of land sells off a smaller chunk); [2] Absolute right of access rule

Front 538

How can you obtain an implied easement by previous use by a common grantor/owner?

Back 538

There must be a previous use by a common owner and this previous use must satisfy three requirements: [1] Continuous; [2] Apparent (open & obvious); [3] Reasonably necessary

Front 539

What are the requirements to establish a prescriptive easement?

Back 539

[1] Use must be adverse to the true owner (i.e., a trespass on title); [2] Use must be continuous and uninterrupted and must last for the specified statutory period (20 years at common law) (seasonal use may satisfy this req’t if appropriate under the circumstances (fishing cabin used in summer); [3] Use is visible and notorious or made w/ owner’s knowledge; [4] Use is without the owner’s permission (note – oral permission is enough to destroy hostility needed to establish a prescriptive easement)

Front 540

What are the ways that a successor-in-interest to the servient estate may be put on notice of the easement?

Back 540

[1] Actual Knowledge or Notice; [2] Constructive Notice – arises from the fact that the document creating the easement is duly recorded in the buyer’s direct chain of title; [3] Inquiry Notice – arises from the buyer’s physical inspection of the land and the visible appearance of the easement on the land – OR – the notice that arises from the buyer’s inspection of the public records contained in the buyer’s direct chain of title

Front 541

What are the two presumptions where the easement is silent on use?

Back 541

[1] unless otherwise specified, an easement is presumed to be perpetual (lasts forever); [2] the use presumed is that of reasonable development of dominant estate

Front 542

There are four rules for repair of the easement.

Back 542

[1] The holder of the benefit of the easement (dominant estate) is responsible for making any necessary repairs to the easement. [2] The holder of the easement (dominant estate) can always go on the servient estate to repair the easement, even if the terms of the easement do not specifically provide for that right; [3] the holder of the easement must make a reasonable restoration of the servient estate after making repairs to the easement; [4] unless the easement says otherwise, the holder of the servient estate has no repair obligation.

Front 543

What are the six ways an easement can be terminated?

Back 543

[1] Unity of Ownership – Doctrine of merger; [2] Deed of Release; [3] Abandonment by Action; [4] Termination by estoppel; [5] Termination by Prescription; [6] Termination of Easements Created by Necessity

Front 544

What are two requirements for terminating an easement by estoppel?

Back 544

[1] A representation of relinquishment of the easement by the holder of the dominant estate; AND [2] the holder of the servient estate must make a change in his position in reliance on that representation.

Front 545

What’s a license?

Back 545

[1] A limited privilege to USE land in the possession of the licensor; [2] NOT a property interest; [3] is a contract right; [4] can always be revoked at the will of the licensor; [5] if the revocation is wrongful, the licensor may have to pay contract damages

Front 546

What are the four requirements to enforce a restrictive covenant at law?

Back 546

[1] Intent; [2] Notice; [3] Touch & Concern; [4] Privity

Front 547

Requirement #2 to enforce a restrictive covenant at law – Notice – generally & different types of notice

Back 547

Notice to the person against whom enforcement is sought. Three kinds: [1] Actual Notice; [2] Constructive Notice* [3] Inquiry Notice -- ** Constructive Notice – the notice that is imparted b/c the restriction is contained in a deed that has been duly recorded in the buyer’s direct chain of title.

Front 548

What are the defenses to an enforcement of Covenant as an Equitable Servitude?

Back 548

[1] Unclean hands – Π has made same use of her property; [2] Acquiescence – Π let other neighboring land owners do the same thing on their lots; [3] Laches – Π sat by while Δ built the office building and only complained after the building project was completed; [4] Estoppel – Π represented that she had no problems w/ Δ’s plans to construct an office building

Front 549

What are the ways to terminate covenants or servitudes?

Back 549

[1] Deed of Release; [2] Merger – Unity of Ownership; [3] Changed Conditions

Front 550

Mnemonic for Adverse Possession

Back 550

H-E-L-U-V-A – [1] Hostile; [2] Exclusive; [3] Lasting; [4] Uninterrupted; [5] Visible; [6] Actual. If even one is missing, there is no AP.

Front 551

AP – H______?

Back 551

Hostile – X is on the land w/ no right to be there.

Front 552

AP – E ______?

Back 552

Exclusive – X must be excluding others from possessing the property

Front 553

AP - L______?

Back 553

Lasting – the possession must last for the statutory period. Apply the relevant time period as specified in the facts of the question. If no such time period is specified, use the common law period of 20 years.

Front 554

AP - U______?

Back 554

Uninterrupted – the kind of continuous waste that an ordinary owner of the property would make.

Front 555

AP - V______?

Back 555

Visible – X’s use and possession of the property is out in the OPEN (“Open & Notorious”)

Front 556

AP - A______?

Back 556

Actual – X, the adverse possessor, must actually possess the land to obtain title. There are two exceptions – The following things are not required: [1] O, the true owner, does not have to know what’s going on. [2] X, the adverse possessor, does not have to think he owns it.

Front 557

Conveyancing – Covenants of Title – What are the different Covenants?

Back 557

3 Present Covenants – [1] Cov. of Seisin; [2] Cov. of Right to Convey; [3] Cov. against Encumbrances. 3 Future Covenants – [1] Cov. of Quiet Enjoyment; [2] Covenant of Warranty; [3] Covenant of Further Assurances (the mop-up covenant)

Front 558

Conveyancing – Covenants of Title – How are Future Covenants breached?

Back 558

A future covenant is not breached immediately, i.e., at the time the conveyance is made. A future covenant is breached, if at all, at some later date when the Grantee is disturbed in possession. Future covenants do run with the land and therefore can be enforced by all subsequent purchasers.

Front 559

What is the strategy for identifying the type of recording statute?

Back 559

[1] Look for words Without Notice – or the words – In Good Faith – which means the statute is either a Notice OR a Race-Notice statute. [2] Look for the words Recorded First or First Recorded – which indicate a Race-Notice statute. If these words are NOT present, then the statute is a Notice statute. [3] If the quoted language does NOT include the word Notice or the words – In Good Faith – then it is a pure Race act.

Front 560

EVIDENCE

Back 560

EVIDENCE

Front 561

Question

Back 561

Answer

Front 562

Three Major Areas of Evidence

Back 562

[1] Relevance; [2] Witnesses: Testimonial Evidence; [3] Hearsay

Front 563

Types of Relevance

Back 563

[1] Logical Relevance; [2] Discretionary, Pragmatic or Policy-based Relevance

Front 564

What is logical relevance?

Back 564

Evidence that has any tendency to make a material proposition or fact more probable or less probable than it would be without the evidence.

Front 565

Discretionary or Policy-Based Relevance – Even relevant E may be excluded if its probative value is substantially outweighed by the danger of:

Back 565

[1] Unfair Prejudice; [2] Confusion of Issues; [3] Misleading Jury; [4] Undue Delay; [5] Waste of Time; [6] Cumulative Evidence. No Mention Of UNFAIR SURPRISE

Front 566

What are the 8 types of similar occurrences where E is admissible even though it does involve some other time, some other event or some other person not directly involved in litigation?

Back 566

[1] Causation; [2] Prior Accidents or Claims (limited); [3] Intent or State of Mind in Issue; [4] Rebuttal E; [5] Comparable Sales to Establish Value; [6] Habit E; [7] Business Routine; [8] Industrial or Trade Custom

Front 567

Under Logical Relevance, what is Similar Occurrences?

Back 567

Where E is admissible even though it does involve some other time, some other event or some other person not directly involved in litigation

Front 568

Admissible – causation?

Back 568

Yes – to prove cause and effect ---- ** People getting sick at same time at restaurant

Front 569

Exceptions to general rule that Prior Accidents or Claims are not admissible

Back 569

[1] to show common plan or scheme or fraud; [2] if prior accidents are relevant to issue of damage to Π ------**[1] Rossi schemed and brought fraudulent claims; [2] if Rossi had hurt his back prior to an accident where he claims to have hurt his back and is the subject of a claim.

Front 570

What is the general rule of when Prior Accidents or Claims are admissible?

Back 570

Other accidents involving the same instrumentality which occurred under the same or similar circumstances are admissible to show [1] Notice to the party and [2] to infer that the instrumentality is defective & dangerous.

Front 571

What’s the general rule of admissibility for liability insurance?

Back 571

Not admissible to show person acted negligently or wrongfully or to show ability to pay or to show fault.

Front 572

Liability insurance admissibility exceptions

Back 572

It’s admissible when it’s relevant to [1] show ownership or control (when it’s disputed). [2] Impeach the credibility of witness by showing interest or bias

Front 573

Are subsequent remedial measures admissible?

Back 573

Not admissible to who negligence, culpable conduct, a defect in a product, a defect in a product’s design or a need for a warning or instruction.

Front 574

Subsequent Remedial Measures exceptions

Back 574

Admissible to show [1] Ownership & control when it’s disputed; and to [2] Rebut or impeach in order to show the feasibility of precautionary measures (usually for Δ who has contested the feasibility of precautionary measures)

Front 575

Are settlements admissible?

Back 575

Not admissible to prove fault, liability, or amount of damage.

Front 576

The non-admissibility of settlements is a broad rule of exclusion that covers:

Back 576

[1] Actual compromises; [2] Offers to compromise or settle; [3]Offers to plead guilty in a criminal case; [4] Withdrawn pleas of guilty; [5] Pleas of nolo contendere

Front 577

Three limitations on the rule of exclusion for settlements:

Back 577

[1] There must be a claim; [2] The claim must be disputed as to either liability or amount; and [3] An offer to pay medical expenses is not admissible even though it is not a settlement offer. But if an admission of fact accompanies a naked offer to pay hospital or medical expenses, the admission may be admitted.

Front 578

Key factors affecting character E rules and their application – 4 Preliminary Questions

Back 578

[1] Purpose of offer of character E (relevance); [2] Method of proving character; [3] type of case – civil or criminal; and [4] what traits of character is involved.

Front 579

What are the three types of purposes for offering Character E?

Back 579

[1] Character directly in issue (Person’s character is a material element in case); [2] Character as circumstantial E of person’s conduct at time of litigated event (Ch E to prove conduct in conformity w/ character on occasion in issue.); [3] Character to impeach the credibility of a witness (i.e., bad character for truthfulness to impeach the credibility of a W who testifies at trial).

Front 580

What civil cases would have character directly in issue as a need for character E?

Back 580

[1] Negligent entrustment; [2] Defamation; [3] Wrongful Death Case. VERY RARE. No Fraud

Front 581

What methods or techniques are used to prove character?

Back 581

Specific acts of conduct; Opinion; Reputation

Front 582

What’s the method of proof for proving Character in civil cases?

Back 582

If character is directly in issue and therefore admissible, it may be proved by any one of the specific techniques (specific acts, opinion, reputation)

Front 583

What is the first basic rule for proving character in criminal cases?

Back 583

Basic Rule 1 - Bad character, whether in the form of specific acts of prior misconduct, prior crimes or convictions, bad opinion or bad reputation, is not admissible at the initiative of the Ø if the sole purpose is to show criminal disposition in order to infer guilt from disposition.

Front 584

Basic Rule 1 of Ch in Crim Cases - Bad character, whether in the form of specific acts of prior misconduct, prior crimes or convictions, bad opinion or bad reputation, is not admissible at the initiative of the Ø if the sole purpose is to show criminal disposition in order to infer guilt from disposition UNLESS AND UNTIL:

Back 584

Basic Rule 2 - The accused is permitted to offer E of good character for the pertinent trait in the form of reputation and opinion to show disposition in order to infer innocence. Only then may the Ø respond by showing the bad character of the accused.

Front 585

How could a criminal Δ show his good character – what methods?

Back 585

Can use opinion or reputation, but NOT specific acts of good conduct.

Front 586

Basic Rule 3 of Character in Criminal Cases

Back 586

After the accused offers E of good character, the prosecution may respond by inquiry on cross-X of the accused’s good character witness about any specific acts which would tarnish the accused’s reputation or which would affect the opinion of the witness.

Front 587

Basic Rule 4 of Character in Criminal Cases

Back 587

After the accused offers E of good character the Ø may also respond by calling prosecution witnesses to testify to bad opinions or bad reputation in regard to the character of the accused.

Front 588

What can the accused do to question the character of the victim in self-defense situations?

Back 588

The accused may also take the initiative in homicide or assault cases, as part of self-defense plea, to show the character of the victim as circumstantial E to infer that on the occasion in question, the alleged victim was the first aggressor.

Front 589

What methods would the accused use to challenge the character of the victim in self-defense situations? How would Ø respond?

Back 589

Reputation or opinion. Ø could respond by showing good reputation or opinion concerning the victim or by showing the bad reputation or a bad opinion regarding the accused himself.

Front 590

When an accused claims self-defense and attacks the character of the victim, how may the victim respond?

Back 590

Show his good character or attack the character of the accused. But NO specific acts!

Front 591

What are examples of issues on which prior misconduct of the accused may be relevant independent of character or disposition?

Back 591

MIMIC [1] Motive; [2] Intent; [3] Identity; [4] Modus Operandi (another way to prove identity); [5] Common Plan or Scheme (this list is not exhaustive)

Front 592

What’s MIMIC? (mnemonic)

Back 592

Motive; Intent; Mistake, absence of; Identity; Common Plan or Scheme  Examples of issues on which prior misconduct of the accused may be relevant independent of character or disposition. – Apply to Civil & Criminal.

Front 593

What is MIMIC subject to?

Back 593

403 – E relevant to show motive, intent, identity, and common scheme may be excluded if the trial judge believes that PV is substantially outweighed by the danger of unfair prejudice.

Front 594

Ways to authenticate

Back 594

[1] Admission (Bob, is this your sig?); [2] Eyewitness Testimony (I saw Bob sign this doc in my office); [3] Handwriting Proof

Front 595

Types of people who can authenticate handwriting

Back 595

[1] Lay witness (anyone familiar w/ handwriting); [2] Expert witness (compare disputed w/ genuine specimen (which also needs to be in evidence); [3] Jury Comparison. Note: a lay witness cannot become familiar strictly for purpose of testifying.

Front 596

How can you authenticate writings by circumstantial evidence?

Back 596

[1] Ancient Document Rule; [2] Solicited Reply Doctrine

Front 597

What is the Ancient Document Rule?

Back 597

[1] 20 or more years, [2] regular on its face, [3] found in a place of natural custody. It’s a way to authenticate writings

Front 598

What is the Solicited Reply Doctrine?

Back 598

Proof that disputed document came in response to prior communication. (e.g., it’s highly unlikely that someone would intercept an offer and send a fake acceptance.) It’s a way to authenticate writings.

Front 599

How much proof do you need to authenticate a writing?

Back 599

Sufficient E to justify a jury finding of genuineness. Must be that a reasonable jury could find that the document is genuine.

Front 600

What does it mean for a document to be self-authenticating?

Back 600

The writing may be admitted without a foundation or testimonial sponsorship.

Front 601

What are examples of self-authenticating documents?

Back 601

[1] Certified Copies of Public or Business Records; [2] Official Publications; [3] Newspapers and Periodicals; [4] Trade Inscriptions or Labels; [5] Acknowledged Documents; [6] Signatures on Certain Commercial Documents as provided by UCC

Front 602

What is the Best Evidence Rule?

Back 602

It requires that a party seeking to prove the content of a writing (includes films, photos, X-Rays and recordings) must either: [1] produce the original document or [2] account for the absence of the original

Front 603

What does the BER apply to?

Back 603

[1] Legally operative documents; [2] Witness’ sole knowledge comes from a document (W wants to recite orally what he read)

Front 604

What kind of legally operative documents does the BER apply to?

Back 604

Documents that by their existence create or destroy a legal relationship that is in dispute. E.g., deed, divorce decree, will, written contract

Front 605

What three objections should spring to mind when there is a writing?

Back 605

[1] Improper authentication; [2] Hearsay; [3] BER

Front 606

What exceptions can you use to get a writing in?

Back 606

[1] Admission of a party; [2] Recorded Recollection; [3] Biz Record

Front 607

BER does not apply to …

Back 607

[1] Facts independent of the writing; [2] Collateral Documents

Front 608

What are three modifications to BER where you can sub something out for the original?

Back 608

[1] Public Records; [2] Voluminous Documents; [3] Duplicates

Front 609

What are the two qualifications for voluminous documents?

Back 609

Admissible as long as [1] originals would be admissible if offered and [2] originals are made accessible to opposing party

Front 610

How are duplicates a modification to BER?

Back 610

Duplicates can be used in place of the originals. They can’t be handwritten. A “duplicate” is a copy produced by any technique which avoids casual errors and “accurately reproduces the original.” Carbons, photographic copies, Xeroxes, faxes are all duplicates. A duplicate is admissible to the same extent as the original (i.e., no need to explain absence of the original) unless: [1] a genuine question is raised about authenticity of the original or [2] It would be unfair to admit the duplicate in lieu of the original.

Front 611

What are the four testimonial attributes?

Back 611

Personal Knowledge and Oath  [1] Perception; [2] Memory; [3] Communication; [4] Sincerity (Oath or Affirmation)

Front 612

What CL disqualifications for testimonial E have been abandoned?

Back 612

[1] Lack of Religious Belief; [2] Infancy; [3] Mental Incompetency; [4] Prior Convictions; [5] Interest

Front 613

What are the elements of a Dead Man Statute?

Back 613

[1] W on stand must be interested; [2] W must testify for his interest; [3] W must testify against decedent or his interests; [4] subject matter of testimony is important. W can testify, but just not about something like communication and transaction (anything else is ok); [5] strictly civil – NO criminal; [6] Even if you have all 5, you can have a waiver (ex: if decedent’s deposition makes it before the jury)

Front 614

When examining a W, what are examples of objectionable questions?

Back 614

[1] Narrative “Tell us everything…”; [2] Leading (Isn’t it true that the sound you heard was like a pistol shot or was it otherwise?); [3] Leading is permitted in certain situations (Cross-X, preliminary matters; aid W w/ memory, hostile W); [4] Misleading or Compound or Argumentative

Front 615

When are leading questions permitted?

Back 615

[1] Cross-X (not for friendly cross-X); [2] Preliminary/non-crucial questions; [3] Difficulty eliciting testimony (young, old, dumb); [4] adverse or hostile witness

Front 616

Leading questions are generally improper on __________ examination

Back 616

Direct

Front 617

What is the basic rule for W use of writings in aid of testimony?

Back 617

W usually cannot read testimony from previously prepared document but ma use a writing in aid of oral testimony in two situations when the W can’t remember. Two situations are: [1] refreshing recollection; [2] Recorded Recollection

Front 618

When can you use writings in aid of testimony?

Back 618

[1] Refreshing Recollection; [2] Recorded Recollection

Front 619

What is refreshing recollection?

Back 619

When W memory fails, anything can be used to jog the memory of the W.

Front 620

Can a refreshing article ever be admitted?

Back 620

Not by prosecution, but it can be by defense counsel. It can also be used in Cross-X.

Front 621

What is a recorded recollection?

Back 621

If W is unable to remember all or part of the details of a transaction about which she once had personal knowledge, her own writing shown to be reliable may be admitted in place of her testimony.

Front 622

What is the foundation for a recorded recollection?

Back 622

It requires a showing that: [1] at one time W had personal knowledge; [2] show that writing was made or supervised by W (or adopted by W if someone else wrote it); [3] Show that writing was timely made by W

Front 623

Exam Tip for Refreshing Recollection

Back 623

[1] Any writing may be used to refresh a W’s memory (can be other stuff like photo); [2] The W cannot read from the writing while testifying; [3] there is no hearsay problem, b/c the writing is not offered into evidence.

Front 624

Exam tip for Recollection Recorded

Back 624

[1] Only a writing that meets several foundational requirements (e.g., timely made by W; W cannot remember the events after reading the writing) may be used; [2] the writing itself is read into evidence; [3] this is hearsay, but it falls w/in a specific exception to the hearsay rule.

Front 625

Lay opinion is admissible if:

Back 625

[1] Rationally based on perception of the W (I saw auto going about 25 mph); [2] Helpful to trier of fact (in my opinion, driver was grossly negligent  not admissible b/c legal conclusion); [3] not based on scientific, technical, or other specialized knowledge

Front 626

What are the four basic requirements for expert testimony?

Back 626

[1] Subject matter must be appropriate for expert testimony; [2] must be qualified as expert; [3] should possess reasonable certainty or probability regarding the opinion; [4] the opinion must be supported by proper factual basis

Front 627

Eight situations where Lay W opinion is admissible:

Back 627

[1] general appearance or condition of a person; [2] state of emotion of a person; [3] matters involving sense recognition; [4] voice or handwriting ID; [5] speed of moving object; [6] value of his own services; [7] rational or irrational nature of another’s conduct; and [8] intoxication of another.

Front 628

What are possible sources for an expert’s proper factual basis?

Back 628

[1] personal observation; [2] facts made known to the expert at trial (hypos); [3] facts not known personally but supplied to him outside the courtroom and of a type reasonably relied upon by experts in the particular field (ex: Dr. relies on x-ray tech’s opinion of x-ray)

Front 629

What’s the basic rule for a treatise?

Back 629

A learned text, treatise, or article concerning a relevant discipline is admissible as an exception to the rule against hearsay if established as reliable by [1] reliance by your expert on direct X, [2] admission on Cross-X of your opposing expert, [3] testimony of any expert, or [4] judicial notice

Front 630

What are the limitations of a treatise?

Back 630

[1] Expert must testify (at trial or deposition) unless judge takes judicial notice; [2] Treatise is admitted by being read to the jury. Text itself is not received as E.

Front 631

Exam Tip – When a question involves a party impeaching his own W, be sure to avoid the following wrong answer choices reflecting the traditional rule, which prohibits impeaching your own W unless the W:

Back 631

[1] is an adverse party or identified w/ an adverse party; [2] is hostile and affirmatively uncooperative; [3] is one whom the party is required by law to call; or [4] gives surprise testimony that is affirmatively harmful to the party calling him. (These are wrong answer choices). The FRE rule is that a W can be impeached by any party, including the party calling him.

Front 632

What is the collateral matters doctrine?

Back 632

Impeachment by contradiction of the W is limited. Cross examiner is bound by the answers given by the W as to collateral matters. No Extrinsic E is allowed to contradict a W as to a collateral matter.

Front 633

What are the key points about Cross-X?

Back 633

[1] Party has absolute right to cross-X a W who testifies live; [2] Cross-X should not exceed the scope of direct; [3] Collateral Matters Doctrine (bound by answers given)

Front 634

What are the rules of accrediting your own W?

Back 634

[1] No bolstering own W unless there has first been an appropriate impeachment (bad must come before good)(this includes prior consistent statements); [2] Prior consistent statement would be admissible if the St was one of ID

Front 635

When can you admit a prior consistent statement to bolster?

Back 635

Admissible if the statement is one of identification. A prior out-of-court statement of ID that was made by a W who testifies at trial is excluded form the definition of hearsay and may be admitted.

Front 636

What are the five techniques for impeaching an adversary W?

Back 636

[1] Attacks on Testimony – (a) Prior inconsistent St; (b) Showing intent/bias/motive to of W to misrepresent or exaggerate; [2] Character Attacks – (c) Prior conviction of crime; (d) Specific acts of deceit or lying which may be inquired into in Cross-X; (e) Bad reputation or opinion for truth & veracity

Front 637

What are the key points of a prior inconsistent statement?

Back 637

[1] Generally admissible only to impeach – not for its truth – not affirmative or substantive E (destroy, not bolster); [2] But if the prior inconsistent ST was given under oath AND at a trial, hearing or other proceeding or in a deposition, such a St is admissible for its truth.

Front 638

What kinds of crimes are usable to impeach?

Back 638

[1] Any crime (felony or misdemeanor) if it involves dishonesty (meaning “deceit”) or false statement. Ex: fraud, larceny by trick, embezzlement, perjury but NOT robbery or ordinary larceny b/c there is no deceit or false statement involved. OR [2] a felony (i.e., a crime punishable by more than one year) not involving dishonesty (i.e., deceit) or false statement is admissible to impeach in the discretion of the Court. Ex: Robbery, ordinary larceny, felony assault. Misdemeanors are NOT admissible to impeach if they do not involve deceit or false statement.

Front 639

Is the extrinsic evidence of conviction admissible?

Back 639

Yes. The certificate of conviction or through Cross-X. No foundation is necessary

Front 640

Can you use specific instances of misconduct or bad acts to impeach?

Back 640

Yes, on Cross-X if the act is probative of truthfulness (i.e., is an act of deceit or lying). NO extrinsic E

Front 641

What are the guidelines for specific bad acts impeachment?

Back 641

[1] Good faith is required and reasonable basis for believing it; [2] the act inquired about must involve deceit or lying; [3] No extrinsic E is permitted. It’s limited to Cross-X.

Front 642

What are the guidelines for rehabilitating after impeachment?

Back 642

[1] Good reputation (opinion) for truth may be shown if impeachment involved a character attack (prior conviction; act of deceit or lying; bad reputation/opinion for truth); [2] Prior Consistent Statement to rebut an express or implied charge of recent fabrication or improper influence or motive – (a)Not usually to rebut charge of prior inconsistent St; (b) to rebut charge of recent fabrication or improper influence or motive; (c) must be pre-motive statement; (d) admissible for its truth (this is explicitly excluded from definition of hearsay)

Front 643

What are the Means of Proof and necessary foundation for the Impeachment Method of Prior Inconsistent Statements?

Back 643

[1] Means of Proof – (a) Cross-X, (b) Extrinsic E (if not a collateral matter); [2] Foundation – W must be given opportunity to explain or deny the inconsistent St (exception for hearsay declarants)

Front 644

What are the Means of Proof and necessary foundation for the Impeachment Method of Bias or Interest?

Back 644

[1] Means of Proof – (a) Cross-X, (b) Extrinsic E; [2] Foundation – W must be asked on Cross-X about facts showing bias or interest before extrinsic E is allowed. If these facts are admitted on Cross-X, admissibility of extrinsic E is w/in court’s discretion.

Front 645

What are the Means of Proof and necessary foundation for the Impeachment Method of Conviction of Crime (must be felony or crime involving dishonesty)?

Back 645

[1] Means of Proof – (a) Cross-X, (b) Record of Judgment; [2] Foundation – None required

Front 646

What are the Means of Proof and necessary foundation for the Impeachment Method of Specific Instances of Misconduct (Bad Acts)?

Back 646

[1] Means of Proof – Cross-X only; [2] Foundation – Not applicable

Front 647

What are the Means of Proof and necessary foundation for the Impeachment Method of Opinion or Reputation for Truthfulness?

Back 647

[1] Means of Proof – Calling other Witnesses [2] Foundation – None required

Front 648

What are the Means of Proof and necessary foundation for the Impeachment Method of Sensory Deficiencies?

Back 648

[1] Means of Proof – (a) Cross-X; (b) Extrinsic E; [2] Foundation – None Required

Front 649

What’s the definition of Attorney-Client privilege?

Back 649

Confidential communications between attorney and client made during professional legal consultation are privileged from disclosure unless waived by the client or the representative of the deceased client. (privilege survives death of client)

Front 650

What are the three elements of attorney-client privilege?

Back 650

[1] The right parties (att’y, client); [2] Confidential Communication (not physical E or pre-existing documents); [3] Professional Legal relationship – (a) Intent by client to establish a professional legal relationship (retainer negotiations are covered), (b) predominantly legal advice must be sought

Front 651

Under the A/C privilege, what does Professional Legal Relationship mean?

Back 651

[1] Intent by client to establish a professional legal relationship. Retainer negotiations are covered. It doesn’t matter whether the establishment of the relationship is successful. [2] Predominantly legal advice must be sought.

Front 652

What are exceptions to the A/C privilege (situations where the privilege does not apply)?

Back 652

[1] Future crime or fraud; [2] At issue exception (when client or patient affirmatively puts communication in issue); [3] Disputes between the parties to the professional relationship (Actions for fee or malpractice) [4] Joint Client Exception (where 2 or more parties communicate w/ att’y about a matter of common interest. No privilege between them - but there would be privilege as to 3rd parties). The first three apply to all professional relationships

Front 653

What is the definition of the Physician/Psychiatrist patient privilege?

Back 653

The patient has a privilege against disclosure of confidential information acquired by the physician/psychiatrist in a professional relationship entered into for the purpose of obtaining treatment.

Front 654

What are the key elements of the Physician/Psychotherapist privilege?

Back 654

[1] Patient must be seeking treatment; [2] information acquired must be confidential and necessary to facilitate professional treatment. (So a patient bleeding from the head will not be privileged. Also, if the patient babbles off topic, then no privilege)

Front 655

Do federal courts recognize physician or psychotherapist exceptions?

Back 655

Psychotherapist.

Front 656

What are the husband-wife spousal privileges?

Back 656

[1] Spousal Immunity Privilege – protects one spouse form being forced to testify against the other about anything in a criminal case; [2] Confidential Marital Communications Privilege – Narrower b/c it only protects against confidential communications made during marriage. This applies to civil & criminal.

Front 657

What is the definition of spousal immunity privilege?

Back 657

One spouse can’t be forced to give adversary testimony against the other in a criminal case. There is nothing here about a communication or confidence.

Front 658

What are the requirements of a spousal immunity privilege?

Back 658

[1] Valid marriage at the time of trial (makes no difference if testimony sought concerns pre-marriage activities); [2] Protects against any and all testimony; [3] holder of privilege is W spouse and not party spouse; [4] Applies only in a criminal case.

Front 659

What is the definition of Confidential Marital Communications privilege?

Back 659

A husband or a wife shall not be required or, without the consent of the other, shall not be allowed to disclose a confidential communication made by one to the other during the marriage.

Front 660

What are the requirements of Confidential Marital Communications Privilege (and differences from spousal immunity)?

Back 660

[1] Married not necessarily at time of trial but at time of protected communication (this privilege outlasts the marriage); [2] Protects only confidences not all testimony; [3] Holder of privilege is either spouse not just W spouse; [4] Privilege applies to all cases, civil as well as criminal.

Front 661

Three situations in which state evidence law will apply in federal court if state substantive law applies (as in the typical diversity jdxn case)

Back 661

“In civil actions or proceedings wrt an element of a claim or defense as to which state law applies the rule of the decision (i.e., state substantive law applies). State law will apply regarding: [1] Presumptions and burdens of proof; [2] Competency of W (ex: State Dead Man Statute); [3] Privileges

Front 662

What is the definition of hearsay?

Back 662

Hearsay is an out-of-court statement offered for the purpose of establishing the truth of the content of the statement (or “truth of the matter asserted in the statement”)

Front 663

What three questions should you ask in a hearsay question?

Back 663

[1] Is it an out-of-court statement? [2] What precisely is the out-of-court statement? (put quotes around the statement and then ask the next question) [3] Is it being offered for the purpose of establishing its truth?

Front 664

What’s the 1st main type of a specific non-hearsay situation?

Back 664

Verbal Acts or Legally Operative Facts – where the words spoken or written have relevant legal significance in the case by virtue of being spoken or written. (words of offer, acceptance, defamation, conspiracy, bribery, cancellation, misrepresentation, waiver, permission)

Front 665

What are examples of Verbal Acts or Legally Operative Facts?

Back 665

Words of offer, words of acceptance, defamation, conspiracy, bribery, cancellation, misrepresentation, waiver, permission.

Front 666

What’s the 2nd main type of a specific non-hearsay situation?

Back 666

Out-of-Court St offered not for its truth but to show its effect on the person who heard or read the St. (E.g., to show notice to, or the good faith of, or reason for action or inaction by the person who heard or read the o-o-c St)

Front 667

What’s the 3rd main type of a specific non-hearsay situation?

Back 667

Out-of-Court St offered not for its truth but as circumstantial E of declarant’s relevant state of mind.

Front 668

Can a W’s own prior statement be hearsay?

Back 668

Yes, if it’s being offered for the purpose of establishing the truth of the content of the statement.

Front 669

Prior statements of a W which are not hearsay  generally

Back 669

These statements are in fact being offered for their truth and would be hearsay under the CL. But FRE excludes them form the definition of hearsay by express rule provisions. Therefore they are admissible non-hearsay. These are EXCLUSIONS!

Front 670

What are examples of prior statements of a W which are not hearsay?

Back 670

[1] Prior inconsistent Statements given under oath at a trial, hearing, other proceeding or deposition; [2] Prior consistent Statements to rebut charge of recent fabrication or improper influence or motive; [3] prior statement of identification made by a W.

Front 671

What are the major exceptions/exclusions?

Back 671

[1] Admission of party; [2] former testimony; [3] statement against interest; [4] dying declaration; [5] spontaneous statements – (a) present state of mind in issue; (b) statement of existing intent to prove intended act; (c) Excited Utterance; (d) present sense impression; (e) Declaration of present physical condition; (f) Declaration of past physical condition; [6] Business Records

Front 672

Is a party admission an exception?

Back 672

No. it’s non-hearsay under FRE

Front 673

What’s the definition of former testimony?

Back 673

Testimony given in earlier proceeding by person now unavailable is admissible if [1] party against whom testimony is offered had, during earlier proceeding, an opportunity to examine that person and motive to conduct exam was similar to the motive it has now, or [2] in civil case, party against whom testimony is offered was in privity (a predecessor in interest) w/ a party to earlier proceeding who had opportunity and similar motive to examine.

Front 674

What are the requirements for admitting former testimony?

Back 674

[1] Meaningful opportunity to cross; [2] unavailability of the declarant.

Front 675

How does grand jury testimony fit under Former Testimony?

Back 675

The grand jury testimony of an unavailable declarant that is offered against the accused in a criminal case would not qualify b/c the accused does not have an opportunity to cross-X grand jury witnesses.

Front 676

What elements are included in a meaningful opportunity for cross-X under Former Testimony?

Back 676

[1] Same issue and motive; [2] Some identity of party. Party against who offered must have been a party in first proceeding, or in civil case, at least in privity w/ party in first proceeding.

Front 677

What’s the definition of a Statement against interest?

Back 677

Declaration of a person, now unavailable as a W, against that person’s pecuniary, proprietary, or penal interest (or St which would expose declarant to civil liability or which would tend to defeat a civil claim by declarant) at the time the St was made.

Front 678

What is the limitation of a Statement against interest?

Back 678

A St tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless “corroborating circumstances clearly indicate the trustworthiness of the statement.”

Front 679

Four ways to distinguish Statement against Interest from Admission of Party

Back 679

[1] St against interest must be made against interest at time St was made; [2] St against interest may be made by any person, not necessarily a party; [3] St against interest requires personal knowledge; [4] St against interest requires unavailability

Front 680

What is the definition of a Dying Declaration?

Back 680

In a prosecution for homicide or in a civil action or proceeding, a St made by a declarant while believing that the declarant’s death was imminent, concerning the cause or circumstances of the impending death.

Front 681

What are the requirements for a dying declaration?

Back 681

[1] State of Mind – made under sense of impending death; [2] Declarant need not die but must be unavailable at time of trial; [3] Kind of case in which admissible – homicide or civil case. NO criminal cases! [4] Content limitation – must concern cause or circumstances of impending death (can’t talk about undue influence in a will)

Front 682

Exam hint about Dying Declaration

Back 682

Just saying “Spano did it” is not enough. There was nothing showing knowledge of impending death. You need state of mind requirement.

Front 683

Spontaneous Statements generally

Back 683

A group of six exceptions for which unavailability is not required b/c the law regards prior statement as being at least as reliable as present in-court testimony.

Front 684

What are the six types of spontaneous statements?

Back 684

[1] Declaration of existing state of mind in issue; [2] Declaration of (present) existing intent to do something in the future offered to infer that the intended future act was done; [3] Excited utterance; [4] present sense impression; [5] Declaration of Present pain, suffering or physical condition; [6] Declaration of Past Physical Condition

Front 685

What is the definition of an excited utterance?

Back 685

St relating to a startling event or condition is admissible when made while declarant was still under stress of excitement cause by event or condition

Front 686

What are the requirements for an excited utterance?

Back 686

[1] Startling event; [2] Made under stress of excitement; [3] Describes the facts of the startling event

Front 687

Considerations/things to look for when looking for an excited utterance

Back 687

[1] nature of event; [2] time lapse and what is going on during that time (has the excitement worn off?); [3] Language of excitement (exclaimed, shouted, screamed) (not “discussed” or “volunteered”). Look for “!”

Front 688

What is the definition of a Present sense impression?

Back 688

A statement describing or explaining an event or condition made while declarant was perceiving the event or condition or immediately thereafter.

Front 689

Distinguish PSI from EU

Back 689

PSI – unnecessary to have startling event or excitement but must have almost precise contemporaneousness – no appreciable time lapse.

Front 690

What is the definition of a Present Pain, suffering or physical condition?

Back 690

A declaration of then existing physical or mental condition is admissible to show the condition. This is almost like a type of PSI. “It hurts.”

Front 691

What is the definition of a Past Physical Condition?

Back 691

Statement made for purposes of diagnosis or treatment and describing medical history or past symptoms or the general character of the cause or external source of the symptoms insofar as reasonably pertinent to diagnosis or treatment.

Front 692

What are the requirements for a Declaration of a Past Physical Condition?

Back 692

[1] Made to medical personnel; [2] pertinent to either diagnosis or treatment (even if diagnosis is only for the purpose of giving testimony)

Front 693

What is a preliminary question of fact?

Back 693

For expert opinion – “is he qualified as an expert?”

Front 694

What’s the rule for preliminary questions of fact upon which admissibility depends?

Back 694

Preliminary questions concerning the qualification of a person to be a W, the existence of a privilege, or the admissibility of E shall be determined by the court (judge). But in making its determination it is not bound by the rules of evidence. (ex: judge can consider hearsay)

Front 695

What is the rule for impeaching the hearsay declarant?

Back 695

When a hearsay statement has been admitted in E, the credibility of the declarant may be attacked by any evidence which would be admissible for that purpose if declarant had testified as a live witness.

Front 696

Definition of business records

Back 696

Records made at or near the time by, or from information transmitted by, a person w/ knowledge are admissible if kept in the regular course of business and if it was the regular course of that business to make the record unless the source of info or circumstances of preparation indicate a lack of trustworthiness.

Front 697

What are the problem areas for business records?

Back 697

[1] Does the exception apply? Usually turns on whether entry is germane to the business. If it’s germane, it applies. [2] Multiple Hearsay Problem – assume the entry is germane to the business so that the biz records exception ordinarily applies. But suppose the record contains w/in it a statement made by someone outside the business. Reconsider the rationale and purpose of the exception.

Front 698

What is the rule for the 6th Am Right of Confrontation?

Back 698

Even though an o-o-c statement qualifies as an exception to the rule against hearsay, the accused’s 6th Am right of confrontation may render the St inadmissible when it is offered against the accused in a criminal case. The S.C. in Crawford v. Washington recently held that o-o-c statements, even if they fit a hearsay exception, will not be admitted if: [1] the o-o-c St is offered against the accused in a criminal case and [2] The declarant is unavailable at the trial and [3] the o-o-c St was “testimonial” and [4] the accused had no opportunity to cross-X the declarant’s “testimonial” St when it was made unless the Ø demonstrates that the Δ has forfeited his Confrontation Clause objection by wrongdoing that prevented the declarant from testifying at trial.

Front 699

What did Crawford v. Washington hold?

Back 699

o-o-c statements, even if they fit a hearsay exception, will not be admitted if: [1] the o-o-c St is offered against the accused in a criminal case and [2] The declarant is unavailable at the trial and [3] the o-o-c St was “testimonial” and [4] the accused had no opportunity to cross-X the declarant’s “testimonial” St when it was made unless the Ø demonstrates that the Δ has forfeited his Confrontation Clause objection by wrongdoing that prevented the declarant from testifying at trial.

Front 700

A hearsay statement is testimonial if:

Back 700

Declarant makes a St that he anticipates will be used in the prosecution or investigation of the crime.

Front 701

What are some examples of statements made in the prosecution or investigation of a crime?

Back 701

Witness statements made to police or other law enforcement officials in response to police questioning; any testimony given at a formal proceeding – preliminary hearing, grand jury, or motion to suppress; guilty plea allocutions of co-conspirators to prove that a conspiracy existed; forensic lab reports revealing drugs, fingerprints, firearms evidence, blood, DNA, etc.)

Front 702

Considerations in determining whether statements are testimonial

Back 702

[1] Likely motivation and intent of the declarant making the statement (to get help or provide E?); [2] Likely motivation and intent of interrogator (to safeguard the victim or secure the scene or to get E?); [3] The temporal element (ongoing emergency or description of past events?); [4] Identity of person eliciting the statement (law enforcement connected or acquaintance/relative of the declarant?); [5] Degree, amount, circumstances and location of police interrogation (preliminary on-scene questions or sustained structured questioning?)

Front 703

CON LAW

Back 703

CON LAW

Front 704

What is the cases & controversies requirement?

Back 704

There must be a live dispute to be justiciable

Front 705

What does the SC have original jdxn over?

Back 705

Ambassadors, public ministers, consuls, states as parties.

Front 706

What state court cases can come to SC by writ of certiorari?

Back 706

Where the constitutionality of a federal statute, federal treaty, or state statute is in issue, or where a state statute allegedly violates federal law.

Front 707

What are the limitations on federal judicial power?

Back 707

[1] no advisory opinions; [2] ripeness; [3] mootness; [4] standing; [5] Political Questions

Front 708

What are the two exceptions to mootness?

Back 708

[1] A wrong capable of repetition but evading review; [2] class actions

Front 709

What are the components of standing?

Back 709

[1] Injury; [2] Causation; [3] Redressability; [4] No standing to assert others’ rights, unless Π himself is injured and (a) 3rd parties find it difficult to assert their own rights, or (b) Π’s injury adversely affects his relationship w/ 3rd parties; [5] Associational Standing; [6] No citizenship/taxpayer standing, except taxpayers have standing to challenge government expenditures as violating the Establishment Clause

Front 710

What is the injury component of standing?

Back 710

Must show actual injury. It must be specific. It need not be economic, but that helps.

Front 711

In associational standing, an organization may sue for its members if:

Back 711

[1] The members would have standing to sue; [2] the injury is related to the organization’s purpose; and [3] Neither the claim nor the relief requires the participation of individual members.

Front 712

What is generalized grievance standing?

Back 712

No citizenship/taxpayer standing except that taxpayers have standing to challenge government expenditures as violating the Establishment Clause.

Front 713

What are Political Questions and what are some examples?

Back 713

Issues that are constitutionally committed to another branch of government or are inherently incapable of judicial resolution. Ex: The Guaranty Clause; Foreign Relations; Impeachment and Removal process

Front 714

When will the SC refuse to review a state court decision?

Back 714

When there is an independent and adequate state law ground of decision.

Front 715

What are the exceptions to the general rule that Federal Courts may not hear suits against state governments? (11th Am)

Back 715

[1] Suits against state officers are allowed, either for injunctive relief or for damages to be paid out of their own pockets; [2] state waiver of immunity from suit is permitted; [3] Congress may waive states’ immunity from suit to allow suits under federal statutes passed pursuant to constitutional amendments adopted after the 11th, including § 5 of 14th, and; [4] the federal government may sue state governments

Front 716

What is the concept of abstention?

Back 716

Federal courts may not enjoin pending state court proceedings.

Front 717

What are the only times where there is federal police power?

Back 717

Military bases, Indian reservations, Federal lands, DC

Front 718

What is the N&P Clause?

Back 718

Congress has the power to make all laws necessary and proper (appropriate) for executing any power granted to any branch of federal government. It must work in conjunction w/ another law. So look for answer choices w/ another federal power linked to it.

Front 719

What are the enumerated and implied powers of Federal Legislation?

Back 719

[1] N & P Clause; [2] Taxing/Spending power and commerce power; [3] 10th Am; [4] § 5 of 14th Am

Front 720

Describe the taxing/spending power of Congress

Back 720

Congress may tax and spend only for the general welfare. There is no specific clause for this. It will usually be a wrong answer. General Welfare = Police power (which Congress doesn’t really have)

Front 721

What does the Commerce Clause control?

Back 721

[1] Channels of Interstate Commerce – Places where commerce occurs like highways, airspace, internet; [2] Instrumentalities (facilitate I.C. ex: trucks, planes, internet) of I.C. and person or things (electricity, pollution, lotto, hoes) in interstate commerce; [3] Activities that have a substantial effect on I.C. – aggregate effect will not work if the activity is non-economic

Front 722

Justiciability Mnemonic

Back 722

RAMPS – [1] Ripeness; [2] Advisory Opinions; [3] Mootness; [4] Political Questions; [5] Standing

Front 723

What is commandeering?

Back 723

When the federal gov passes a statute that requires a state to pass a statute. Fed gov can’t do this.

Front 724

Hierarchy of Laws

Back 724

[1] Constitution; [2] Act of Congress (if you have an act of Congress that conflicts w/ a Treaty, go with last in time); [3] Executive Agreement / Executive Order; [4] State Law

Front 725

What’s the rule for property power?

Back 725

Congress has power to dispose of territory or other property belonging to US. As long as you don’t create an EP issue, you can give property to one tribe over another.

Front 726

What’s example of property that US gov can control?

Back 726

[1] wild animals; [2] military ships and planes; [3] federal buildings; [4] Indian reservations

Front 727

What’s the affectation doctrine?

Back 727

Congress may regulate any activity which has a substantial economic effect on I.C.

Front 728

What are the suspect classes under EP Standard of Review for Strict Scrutiny?

Back 728

NRA – National Origin; Race; Alienage. You have a “suspect” and you have the NRA

Front 729

What are the fundamental rights under EP Standard of Review for Strict Scrutiny?

Back 729

CAMPER (Camper – if you like to backpack, you like to be alone. Your campsite is secluded and you are alone. It’s very private.) [C] – Contraception; [A] – Abortion; [M] – Marriage; [P] – Procreation; [E] – Education (right to private Edu.); [R] – Relations of Family

Front 730

What are the standards of review for EP?

Back 730

Strict Scrutiny; Intermediate Scrutiny; Rational Basis Scrutiny

Front 731

What is SDP?

Back 731

A term used to classify the source from which the fundamental rights (right to vote, right to travel, right to privacy) derive

Front 732

Differences between SDP and EP

Back 732

SDP – when the law impacts everyone; EP – law impacts similarly situational people differently

Front 733

What is the Art. IV P & I Clause?

Back 733

Prevents economic discrimination by one state against citizens or residents of another state, unless a substantial reason exists

Front 734

Are Total Spending limits by a candidate UnC’l or C’l? Are individual campaign contribution limits?

Back 734

Total Spending – UnC’l; Individual – C’l if reasonable.

Front 735

What are the buzz words to look for in Takings Issues questions?

Back 735

“Deprive owner of any beneficial use”

Front 736

Obscenity Test (Miller). To be obscene, the material must: (mnemonic)

Back 736

[1] Appeal to the prurient interest in sex; [2] Depict sexual conduct in a patently offensive way; and [3] lack SLAPS Serious Literary, Artistic, Political, or Scientific value

Front 737

Three Areas of Commerce Clause (mnemonic)

Back 737

CIA – [C] – Channels of Commerce (hotels, restaurants, etc.); [I] Instrumentalities of Commerce (airlines, railroads, drugs, kidnapping – very broad); [A] Activities that substantially affect Commerce (intrastate that has substantial effect on commerce)

Front 738

Intermediate Scrutiny (mnemonic)

Back 738

SIC – [S] Sex or gender; [I] Illegitimacy; [C] Children of Aliens

Front 739

PDP – Matthews Test (mnemonic) – Balancing Test of whether you get a hearing

Back 739

IRA – [I] Importance of interest affected; [R] Risk of error by gov if no additional procedures are required; [A] Administrative burden on Gov if hearing is required

Front 740

In Con Law, what is the Rebuttable Presumption Doctrine?

Back 740

A WRONG answer

Front 741

Con Law wrong answers:

Back 741

[1] ‘privilege and not a right’; [2] Rebuttable presumption doctrine; [3] ‘utterly without redeeming social value’

Front 742

What is the process required for: Commitment to a Mental Institution?

Back 742

Adults – prior notice and prior evidentiary hearing (except in emergency). Children – prior screening by neutral factfinder. (parental consent alone is insufficient)

Front 743

What is the process required for: Welfare Benefits?

Back 743

Prior notice and prior evidentiary hearing

Front 744

What is the process required for: Disability Benefits?

Back 744

Prior notice and opportunity to respond, and subsequent evidentiary hearing

Front 745

What is the process required for: Public Employment (tenured or termination only “for cause”)?

Back 745

Generally, prior notice and opportunity to respond, and subsequent evidentiary hearing

Front 746

What is the process required for: Public Education (disciplinary suspension or academic dismissal)?

Back 746

Prior notice and opportunity to respond; no formal evidentiary hearing required

Front 747

What is the process required for: Driver’s License Suspension?

Back 747

Prior evidentiary hearing. Exception: Breathalyzer test suspension statutes

Front 748

What is the process required for: Termination of Parent’s Custody Rights?

Back 748

Prior notice and prior evidentiary hearing

Front 749

What is the process required for: Civil Forfeitures?

Back 749

Prior notice and evidentiary hearing for real property; subsequent notice and hearing for personal property.

Front 750

Are the following a Taking or a Regulation? [1] Condemnation of land to build highway; [2] Ordering destruction of diseased trees; [3] Landmark Ordinances; [4] Creating Public access easement on private property; [5] Abolishing inheritance rights; [6] Zoning Ordinances that merely prohibit the most beneficial use of property

Back 750

[1] Taking; [2] Regulation; [3] Regulation; [4] Taking; [5] Taking; [6] Regulation

Front 751

What gets the Rational Basis test for [1] DP; [2] EP

Back 751

[1] When no fundamental rights are involved; [2] When no Suspect or Quasi-Suspect Class and No Fundamental Right are involved

Front 752

What gets Strict Scrutiny Test for [1] DP; [2] EP

Back 752

[1] when Fundamental Rights Involved (Privacy, Interstate Travel, Voting, 1st Am); [2] Suspect Class Involved (NRA – National Origin, Race, Alienage)

Front 753

What gets the Intermediate Scrutiny Test for EP?

Back 753

Quasi-Suspect Class involved (gender, legitimacy)

Front 754

What is the Rational Basis Test and who has the burden?

Back 754

Test – is the law rationally related to a legitimate government purpose? Burden – on challenger

Front 755

What is the Strict Scrutiny Test and who has the burden?

Back 755

Test – is the law necessary to achieve a compelling government purpose? Burden – on Government

Front 756

What is the Intermediate Scrutiny Test and who has the burden?

Back 756

Test – is the law substantially related to an important government purpose? Burden – on government

Front 757

Under EP, what is covered by rational basis?

Back 757

[1] Social or economic welfare measures (welfare benefits); [2] Education – public; [3] Housing; [4] Unrelated people living together; [5] Bankruptcy; [6] Age; [7] Poverty; [8] Wealth; [9] Mental Retardation; [10] Necessities of life (e.g., food, shelter, clothing, and medical care)

Front 758

On the right to be a candidate, what is the standard of review for the following: [1] Wealth Restriction; [2] Residency Restriction; [3] Property Ownership Requirements; [4] Party Affiliation; [5] Racial Classification; [6] Age Classification; [7] Prohibition on Officeholders from Being Candidates for another office

Back 758

[1] Strict Scrutiny; [2] Strict Scrutiny; [3] No Articulated Standard; [4] Strict Scrutiny; [5] Strict Scrutiny; [6] Rational Basis; [7] Rational Basis

Front 759

What is the approach for the following types of questions: [1] Least Accurate; [2] Weakest Argument; [3] Not Accurate or Not Helpful

Back 759

[1] Eliminate all correct statements; [2] Look for False Statement; [3] Choose wrong statement of law

Front 760

What is the Negative Implications Doctrine of the Dormant Commerce Clause?

Back 760

Where Congress has not otherwise regulated, the states are free to regulate interstate commerce; regulation must be: [1] non-discriminatory – may not favor or protect local interests, and [2] not unduly burdensome – state interest is balanced against the burden on I.C. such that no less restrictive alternative means is available

Front 761

What amendments are incorporated through the 14th?

Back 761

2nd – right to bear arms; 5th – right to a grand jury in criminal cases; 7th – right to jury trial for civil cases

Front 762

What are protected liberty interests?

Back 762

Commitment to a mental institution, right to contract, right to engage in gainful employment; right to refuse unwanted medical care, right of natural parents in the care and custody of their children; NOT injury to reputation

Front 763

What are property interests (entitlements)?

Back 763

Right to public education; welfare benefits; liability benefits; continued public employment where termination can only be “for cause”; revocation of a driver’s license

Front 764

What is the Lemon test?

Back 764

To be constitutional, a sect-neutral government aid/program must satisfy three requirements: the law must [1] have a secular purpose; [2] have a primary effect that neither advances nor inhibits religion, and [3] not foster excessive government entanglement w/ religion.

Front 765

What is the main principle of the Establishment Clause? What’s the major test for it?

Back 765

The government may not aid or prefer one religion or sect over another, subject to strict scrutiny review. Lemon Test

Front 766

What are the general principles under the Establishment Clause?

Back 766

[1] Government sponsored religious activities in public schools are UnC’l; [2] government aid to parochial schools may not be used for religious purposes, but such aid is constitutional if made available to all students at public and private schools

Front 767

What is the relationship of tax deductions and the Establishment Clause?

Back 767

Reimbursing parents for tuition paid only to religious schools is invalid; similarly tax exemptions available for religious organizations is an invalid endorsement of religion. But property tax exemptions for religious property have been upheld; religious displays are permissible in public places provided no one religion is being favored over another

Front 768

What are the four types of facial attacks on free speech?

Back 768

[1] Overbreadth – statute punishes both protected as well as unprotected speech; [2] Vagueness – statute is so unclearly defined that persons of ordinary intelligence must guess at its meaning; [3] Prior Restraint – government action restricting free speech in advance of publication is generally invalid (licensing permits, injunctions, gag order barring the media from pretrial publicity), valid where national security interests are compelling, or the regulation of obscene books and films where procedural safeguards are afforded. [4] Unfettered Discretion – where a licensing official has unfettered discretion as to whether to confer or deny a permit

Front 769

In a Free Speech Essay question, what is the first question to ask?

Back 769

Is the Speech the Statute is regulating Content Specific (regulates the message) or Content Neutral (Time, Place, Manner Regulation – statute exists regardless of the message)?

Front 770

In a Free Speech Essay question, what do you do if the speech the statute is regulating is Content Specific (regulates the message)?

Back 770

Ask if the Speech being regulated is Protected or Unprotected. If [1] Protected – Apply strict scrutiny – i.e., the statute is unconstitutional unless the government can show the law is necessary to a compelling interest; [2] Unprotected – Unprotected includes Clear and Present Danger; Defamation; Obscenity; Child Porn; Fighting Words; Fraudulent Commercial Speech

Front 771

In a Free Speech Essay question, what do you do if the speech the statute is regulating is Content Neutral (Time, Place, Manner Regulation – statute exists regardless of the message)?

Back 771

If content neutral regulation of time, place, manner –then apply a 3-party test. The regulation must: [1] further a significant government interest (noise, crowd, or litter control; traffic safety); [2] Be narrowly tailored (no more restrictive than necessary), and [3] leave open alternative channels of communication (commercial door-to-door solicitation w/o invitation of the homeowner may be restricted b/c other avenues of communication exist such as the mail, newspaper advertisements, radio, and television)

Front 772

What must the government show in order to deny public employment and bar membership based on someone’s group affiliation?

Back 772

Must show that the person [1] is a knowing (scienter) and active (dues-paying) member of subversive group, and [2] has the specific intent to further the group’s unlawful objectives.

Front 773

What are the types of unregulated speech?

Back 773

Clear and present danger; defamation; obscenity; child porn; fighting words; fraudulent commercial speech; other areas

Front 774

What is clear and present danger speech?

Back 774

Speech [1] directed at producing imminent unlawful action and [2] likely to produce such action

Front 775

Describe defamation as an unprotected speech

Back 775

[1] Public officials, public figures, and limited public figures must prove malice (knowing falsity or reckless disregard for the truth) [2] private person Πs – constitutional limitations apply on where the defamatory statement involves a matter of public concern, in which case negligence must be proven (no liability w/o fault); punitive damages are not awarded absent proof of malice.

Front 776

Describe child porn as an unprotected speech

Back 776

Outside the protection of the 1st Am – visual depictions of sexual conduct including children may be punished even if not obscene under Miller

Front 777

Describe fighting words as an unprotected speech

Back 777

Restricted speech includes personally abrasive language likely to invite the average person to commit acts of physical violence; however, statutes designed to punish only particular viewpoints are invalid – e.g., fighting words that provoke violence on the basis of race, religion, or gender

Front 778

Describe fraudulent commercial speech as an unprotected speech

Back 778

Generally commercial speech is protected by may be restricted as to false or deceptive advertising or illegal products; a lawful, narrowly tailored regulation will be valid if it directly advances a substantial government interest and there is a reasonable “fit” between the means used and the legislation’s end; attorney may advertise, provided it is not misleading; in-person solicitation is not protected.

Front 779

Describe “other areas” as an unprotected speech

Back 779

[1] Symbolic speech (where medium is the message) may be restricted where the regulation furthers an important government interest unrelated to the suppression of speech and the incidental burden on speech is no greater than necessary; e.g., UnC’l to ban flag burning. [2] Freedom not to speak – allows children not to be compelled to salute or say pledge of allegiance. Allows motorist to cover “Live Free or Die”

Front 780

Time, place, manner restrictions for nonpublic forums must be:

Back 780

[1] viewpoint neutral (content may be regulated, but limiting the presentation to only one view is impermissible) and [2] reasonably related to a legitimate government interest

Front 781

Time, place, manner restrictions for public forums must be:

Back 781

The regulation must: [1] further a significant government interest (noise, crowd, or litter control; traffic safety); [2] Be narrowly tailored (no more restrictive than necessary), and [3] leave open alternative channels of communication (commercial door-to-door solicitation w/o invitation of the homeowner may be restricted b/c other avenues of communication exist such as the mail, newspaper advertisements, radio, and television)

Front 782

What are the licensing statutes requirements?

Back 782

To be valid, a licensing scheme must relate to an important government objective, be clearly written, narrowly drawn, and reasonably regulate time, place and manner of speech

Front 783

What do you do if a licensing statute is valid on its face?

Back 783

The speaker may not ignore the statute and must seek a permit. If the request is denied, even wrongfully, the speaker must nonetheless seek prompt judicial relief before speaking; otherwise a subsequent claim of violation of 1st Am rights will fail.

Front 784

What do you do if a licensing statute is Void on its face?

Back 784

(Due to overbreadth, vagueness, prior restraint, or unfettered discretion) – the speaker may ignore the statute and speak, as well as successfully defend against any subsequent prosecution

Front 785

What do you do if an injunction is issued in situations where a licensing statute exists?

Back 785

Where the speaker is enjoined from speaking, she must obey the injunction (even if facially invalid) or appeal from it. Invalidity of the injunction must be established on appeal and is no defense to a subsequent charge of contempt.