My Flash Cards

Front 1

What are the elements of accomplice liability?

What is an accomplice liable for?

NY rule regarding accomplice's testimony against other participant?

Back 1

1. Aiding, abetting, and counseling the crime--active aiding required. Mere presence not enough, even if by presence D seems to be consenting to the crime, or even if D fails to notify police.
2. Liability: the crime itself and all other foreseeable crimes.
*NY* need more than accomplice's testimony to convict

Front 2

Defenses to accomplice liability.

Back 2

1) Withdrawal, Affirmative Defense
2) Accessory After the Fact (helping someone escape is a separate lesser charge, and you're not liable for crime itself)

Front 3

MS: is withdrawal a defense to the inchoate crimes?

Back 3

In general, on the MS, withdrawal is NOT a defense to the inchoate crimes.

Front 4

What are the inchoate offenses?

Back 4

1) Solicitation
2) Conspiracy
3) Attempt

Front 5

What are the elements of Solicitation?

Back 5

Element: asking someone to commit a crime (note, refusal or legal incapacity of the solicitee is NO DEFENSE)

Front 6

What are the elements of Conspiracy?

Back 6

1) an agreement
2) intent to agree
3) attempt to achieve the unlawful purpose or object of the agreement
4) NY: overt act in the direction of the crime

Front 7

Who is liable for a conspiracy?

Back 7

1) each conspirator is liable for all crimes of co-cons if foreseeable & in furtherance of conspiracy
2) NY - mere conspiring w/o participation doesn't create liab for substantive offense committed by co-con
3) NY - can be convicted even if all other parties to agreement can't due to legal impediments

Front 8

Defenses to conspiracy?

Back 8

1) no "impossibility defense"
2) no withdrawal possible, b/c agreement + act = crime
3) no merger, i.e., can be convicted of conspiracy to rob and robbery
4) NY - affirmative defense: must voluntarily renounce and prevent crime

Front 9

Elements of attempt?

Special NY rule for attempt?

Back 9

Element: specific intent
*NY* must come "very near" or "dangerously near" completion of intended crime

Front 10

Defenses to attempt? (MS)

Back 10

1) Factual impossibility is not a defense
2) LEGAL IMPOSSIBILITY is a defense (it's not a crime to do that which defendant attempted to do)
3) Abandonment is not a defense

Front 11

What are the elements of NDF self-defense?

What is the special rule in NY?

Back 11

NDF - a vic may use NDF in self-defense if he reasonably believes force is about to be used on him.
*NY* ...unless defender was orig aggressor or provoked use of force or unlawful combat agreement

Front 12

What are the elements of DF self-defense?

Back 12

Victim can use DF in SD any time victim believes DF is about to be used on him
1) never for defense of prop
2) NY requires retreat if safe to do so b4 resorting to DF...no duty to retreat in own home, if preventing rape, kidnapping, arson, burglary, or sodomy, or making lawful arrest

Front 13

DF in self-defense by original aggressor

Back 13

Withdraw and communicate that withdrawal to original victim.

Front 14

Use of DF to arrest

Back 14

officer must reasonably believe suspect armed or presents a danger to public

Front 15

What if fact-finder finds no right to self-defense?

Back 15

Voluntary manslaughter

Front 16

Affirmative defense of insanity. (NY)

Back 16

*NY* Due to mental disease/defect at time of crime committed, def lacked capacity to know: nature and consequence of conduct, or that such conduct is wrong

Front 17

Intoxication

Back 17

Not a defense, but may negate intent

Front 18

Entrapment...elements? (NY)

Back 18

*NY* Affirmative Defense
1) Criminal design originated with authorities, and
2) Def was not predisposed to commit crime
(Govt may introduce def's past crimes during case in chief to assert def was predisposed to commit crime)

Front 19

Duress in NY?

Back 19

Affirmative defense applicable to all crimes.

Front 20

NY Homicide: 1st Degree Murder

Back 20

Intentional Murder with Special Circumstances:
1) Intended vic was a police officer, engaged in official duties, and perp knew
2) def was serving life sentence or escaped from life sentence at time of killing
3) intended vic was a witness/family member of witness to crime
4) murder for hire
5) vic was intentionally killed during killer's flight from robbery, 1st or 2nd burg, kidnapping, 1st or 2nd arson, rape, sodomy, sexual abuse, escape, or attempted murder in 2nd
6) during an intentional killing, def kills additional persons or recidivism
7) torture murder
8) serial murder (24 mo rule)
9) vic killed b/c was a judge

Front 21

Intentional 2nd Degree Murder in NY: elements?

Back 21

1) intent to cause death
2) causes death

Front 22

There are 3 forms of 2nd Degree Murder in New York

Back 22

1) Intentional Murder (other than 1st Degree)
2) Highly Reckless Murder
3) Felony Murder

Front 23

Felony murder in NY: elements?

Back 23

1) vic was unintentionally killed by def/accomplice during or fleeing from:
burglary, robbery, arson, kidnapping, rape, sodomy, aggravated sexual abuse, escape

Front 24

Affirmative defenses to Intentional 2nd Degree Murder in NY

Back 24

1) Extreme emotional distrubance (heat of passion)
2) Aiding a suicide

Front 25

Elements of First Degree Manslaughter in NY?

Back 25

1) serious bodily harm resulting in death
2) heat of passion

Front 26

Elements of 2nd Degree Manslaughter (involuntary) in NY?

Is intoxication a defense?

Back 26

Reckless - intoxication no defense.

Front 27

NY - Elements of criminally negligent homicide (involuntary)

Back 27

1) causing the death of another due to failure to perceive a substantial & unjustifiable risk of death.
2) defendant's conduct was culpable (failure to preceive risk is not enough)
3) death producing event must have been foreseeable

* generally applies to negligent driving of autos

Front 28

1st Degree Burglary in NY: elements?

Back 28

1) Knowlingly entering/ remaining in dwelling
2) with intent to commit crime, and
3) def injures a nonparticipant or threatens with dangerous weapon

Front 29

Specific Intent Crimes

Back 29

Battery
Assault
False Pretenses
Forgery
Larceny
Embezzlement

Solicitation
Conspiracy
Attempt
Robbery
First Degree Murder

Hint 29

BAFFLE SCARF

Front 30

Conspiracy: elements

Back 30

Intent
Agreement
Attempt to pursue criminal objective (overt act)?

Hint 30

3 elements

Front 31

MS: Is withdrawal a defense to the conspiracy?

Back 31

In general, withdrawal from the conspiracy is NOT a defense, because the conspiracy is complete as soon as the agreement is made and an act in furtherance is performed.

Withdrawal MAY be a defense to crimes committed in furtherance of the conspiracy, including the substantive target crime of the conspiracy.

To withdraw, conspirator must perform an affirmative act that notifies all members of the conspiracy of her withdrawal. Notice must be given in time for members to abandon their plans. If she has assisted as an accomplice, she must try to neutralize this assistance

Front 32

Attempt: elements

Back 32

Intent
Substantial step in furtherance of the crime.

Hint 32

2 elements

Front 33

M'Naughten

Back 33

Defendant is entitled to acquittal only if he had a mental disease or defect that caused him to either:
1) not know his act was wrong, or
2) not understand the nature and quality of his actions.

Front 34

Irresistable impulse

Back 34

at the time of the conduct, defendant lacked capacity for self-control and free choice

Front 35

Durham rule

Back 35

(NH & DC) defendant’s conduct was a product of his mental illness

Front 36

MPC Definition of Insanity

Back 36

at the time of his conduct, defendant lacked ability to conform his conduct to the requirements of the law

Front 37

NY Definition of Insanity (crim)

Back 37

A person is not criminally responsible for conduct if, at the time of the conduct, as a result of mental disease or defect, he lacked capacity to know or appreciate either the nature and consequence of such conduct or that such conduct was wrong
(NOTE: once raised, defendant may not refuse to submit to a psych exam by prosecution on 5thA grounds)

Front 38

NY Infancy (crim law)

Back 38

Infancy is a defense subject to statutory exceptions:
• Age 13-15, may be prosecuted for 2nd Deg Murder
• Age 14-15, responsible for serious offenses against persons or property

Except for the above, a defendant age 7-16 who commits a crime (misdemeanor or felony) is subject exclusively to family court juridsiction as a juvenile defendant

Front 39

MS Infancy (crim)

Back 39

under 7, no liability
under 14, rebuttable presumption of no liability

Hint 39

7 rule

Front 40

NY is a retreat jurisdiction

Back 40

Victims are required to retreat to the wall if it’s safe to do so, before using DF. 3 exceptions:
(1) no retreat necessary out of one’s own home;
(2) if victim of rape or robbery, don’t have to retreat;
(3) police officers have no duty to retreat

Front 41

When, if ever, should you give SD to an original aggressor?

Back 41

Only if the original aggressor (1) withdraws, and once he’s properly withdraws (by retreat?) he (2) communicates to the other party that he’s withdrawn, i.e., “I’m all done here, I don’t intend to do anything else”

Front 42

When can deadly force be used to defend only property?

Back 42

NEVER

Hint 42

Spring-loaded gun

Front 43

Who bears the burden (pla or def) and what is the standard for proving affirmative defenses in NY (crim law)

Back 43

Must be raised and proven by a preponderance of evidence by the defendant.

Hint 43

Who has the burden?

Front 44

Two theories of assault

Back 44

assault as attempted battery
assault as a threat

Front 45

Larceny: elements

Back 45

(1) a taking
(2) wrongful taking by trespass or trick (a.k.a., stealing)
(3) carry away
(4) personal property of another
(5) no consent
(6) with intent to deprive owner permanently of his interest in property

Front 46

Embezzlement

Back 46

• Embezzler always has (1) lawful possession, then (2) illegal conversion (i.e., trustee)

Front 47

False pretenses (crim)

Back 47

• Defendant persuades owner to convey title by false pretenses

Front 48

Robbery: elements

Back 48

• Robbery = larceny + assault
• Elements:
(1) take property from person or presence
(2) against the person’s will
(3) by violence or fear of imminent harm, i.e., “Your money or your life!”

Front 49

MS Burglary: elements

Back 49

breaking
entering
dwelling of another
intent to commit felony
at night

Front 50

MS Arson: elements

Back 50

malicious burning of
the dwelling of
another
(must be material wasting; charred, not scorched)

Hint 50

3 elements

Front 51

What does Article III of the US Constitution define?

Back 51

Powers of the courts; federal judicial power

Front 52

Requirements for cases & controversies

Back 52

Standing, ripesness, mootness, political question doctrine

Hint 52

there are 4

Front 53

Can the courts issue advisory opinions?

Back 53

No.

Front 54

Describe injury in terms of standing.

Back 54

Plaintiff has been or imminently will be injured. TIP: usually the best standing is a plaintif who has personally suffered an economic loss.

Front 55

When is third party standing permissible?

Back 55

1) close relationship (ie, doctor-patient)
2) injured third party is unlikely to assert his rights (ie, crim defs have standing to raise claims about jury discrimination)
3) Associational Standing - organization can sue on behalf of members

Hint 55

there are 3

Front 56

What are the requirements for associational standing?

Back 56

1) injury in fact to members that gives them a right to individually sue
2) injury is related to organization's purpose
3) individual member participation in lawsuit unnecessary

Hint 56

there are 3

Front 57

When to taxpayers have standing to challenge?

Back 57

In generally, the plaintiff may not be suing solely as "taxpayer" or "citizen." But, a taxpayer has standing to challenge government spending that violates the Establishment Clause (spending $$, not property)

Hint 57

$$ & religion

Front 58

May a court grant pre-enforcement review of a statute or regulation?

Back 58

In general, no--ripeness doctrine. However, the court will consider (1) the hardship that will be suffered w/o pre-enforcement review, and (2) the fitness of the issues and the record for judicial review.l

Hint 58

2 issues

Front 59

Exceptions to mootness doctrine?

Back 59

(1) wrong capable of repetition but evading review
(2) voluntary cessation
(3) class action suits

Hint 59

there are 3

Front 60

What are considered political questions?

Back 60

1) "republican form of government" clause
2) challenges to pres's conduct of foreign policy
3) challenges to impeachment & removal process
4) challenges to partisan gerrymandering

Hint 60

there are 4

Front 61

Final Judgment Rule

Back 61

USSC will not do "interlocutory appeals." The USSC will only hear the case after final judgment.

Front 62

Sovereign immunity

Back 62

11th A bars suits by private parties or foreign governments against state governments in federal courts.

Sovereign immunity bars suits against states in state courts or federal agencies, even on federal claims, unless defendant state consents.

Front 63

Congress' police powers.

Back 63

In general, there is no federal police power--only the states have police power, and Congress needs authority to act. Congress has police power for "MILD"
-Military
-Indian reservations
-Federal lands and territories
-District of Columbia

Hint 63

4 exceptions to general rule

Front 64

Necessary & Proper Clause

Back 64

Congress can adopt all laws necessary and proper to carry out its authority.

Front 65

Taxing & Spending Power

Back 65

Congress may tax and spend for the "general welfare."

Front 66

Commerce Power

Back 66

Congress has authority to regulate commerce with foreign nations, for Indian tribes, and among the states.

Front 67

What can Congress regulate under the Commerce Clause?

Back 67

1) channels of interstate commerce (places where commerce occurs)
2) instrumentalities of interstate commerce (trucks, planes, internet)
3) persons & things in interstate commerce
4) activities that have a substantial effect on interstate commerce

Hint 67

PICTS

Front 68

Limits on Congress' ability to delegate legislative power.

Back 68

In general, there are no limits on Congress' power to delegate. Legislative power may be delegated ot executive or judicial branch as long as intelligible standards are set and whe power is not uniqu

Front 69

What must occur for Congress to act?

Back 69

Bicameralism (passage in House & Senate) and
Presentment (to President for signature or veto)

Front 70

Legislative veto

Back 70

Unconstitutional.
A legislative veto is an attempt by Congress to overturn an executive agency action without bicameralism or presentment.

Front 71

Line item veto

Back 71

Unconstitutional.
Attempt by President to veto part of a bill while signing the rest into law.

Front 72

Definition of "Treaty"

Back 72

Agreement between US and foreign country; negotiated by president; must be ratified by Senate.

Front 73

Treaty and state law.

Back 73

Treaty prevails

Front 74

Treaty and federal law

Back 74

Whichever was adopted more recently prevails.

Front 75

Treaty and US Con

Back 75

Constitution always trumps.

Front 76

Executive agreement.

Back 76

Agreement between US and foreign country; effective when signed by President and head of foreign nation.

Front 77

Exec agreement and state law.

Back 77

Exec agreement wins.

Front 78

Exec agreement and federal law or US Con

Back 78

Con or fed law wins.

Front 79

Who does President appoint?

Back 79

Ambassadors, federal judges, and officers of congress.

Congress may give power to appoint inferior officers to Pres, heads of depts, or lower fed cts.

Front 80

Who does President remove?

Back 80

Pres may fire any executive branch officer.

For Congress to limit removal power, it must be an officer where independence from the President is desirable.

Front 81

Can Congress prohibit President's removal?

Back 81

Only if there was no good cause.

Front 82

For what can Pres, VP, fed judges, and officers be impeached and removed?

Back 82

Treason, bribery, high crimes & misdemeanors,

Front 83

What else do you need besides impeachment for removal?

Back 83

Conviction by 2/3 of Senate.

Front 84

What is required for impeachment?

Back 84

Impeachment by House requires a majority vote.

Front 85

President's immunity to civil suits for money damages.

Back 85

Pres has absolute immunity to civil suits for money damages for actions which took place while in office.

Front 86

Executive Privilege

Back 86

must yield to other important governmental interests

Front 87

Presidential power to pardon

Back 87

Pres may pardon those accused or convicted of federal criminal acts.

Front 88

Supremacy Clause

Back 88

The Constitution, and laws and treaties made pursuant to it, are the supreme law of the land.

Front 89

States & taxes

Back 89

States may not tax or regulate federal governmental activity.

Front 90

Dormant Commerce Clause

Back 90

State & local laws are uncon if they place an undue burden on interstate commerce.

Hint 90

"negative implications of the Commerce Clause"

Front 91

Privileges & Immunities Clause of Art. IV

Back 91

No state may deny citizens of another state the privileges and immunities it affords its own citizens.

Front 92

DCC / PIC analysis...does the law discriminate against OOS'ers?

Back 92

NO: PIC doesn't apply...DCC violated if law's burdens exceed its benefits.
YES: PIC violated unless law is necesary to achieve an important government purpose....DCC violated unless law is necessary to achieve an important government purpose.

Front 93

Exceptions to DCC violations

Back 93

(1) Congress consents to discrimination.
(2) market participation exception

Front 94

Market Participation Exception to DCC violations?

Back 94

A state or local government may prefer its own citizens in receiving benefits from government programs or in deaing with government owned businesses.

Front 95

Limits on state taxes

Back 95

1) can't be used to help in-state businesses
2) can only be used if there is a substantial nexus (significant connection) to the state
3) taxation of interstate business must be fairly apportioned

Front 96

Situations where private conduct must comply with the Constitution.

Back 96

1) public function exception (running elections, running towns)
2) entanglement exception (when government authorizes, encourages, or facilitates unconstitutional activity)

Front 97

Application of Bill of Rights

Back 97

Applies directly only to Federal Government. Applies to state and local governments indirectly by incorporation of the Due Process Clause of the 14th Amendment.

Front 98

Exceptions to incorporation of Bill of Rights

Back 98

2ndA right to bear arms
3rdA right not to have soldiers
5thA right to grand jury in criminal cases
7thA right to jury trial in civil cases
8thA right against excessive fines

Front 99

Levels of Scrutiny

Back 99

Rational Basis
Intermediate Scrutiny
Strict Scrutiny

Hint 99

there are 3

Front 100

Rational Basis Test

Back 100

Law will be upheld if rationally related to a legitimate government purpose.

Front 101

Intermediate Scrutiny

Back 101

Law will be upheld if it is substantially related to an important government purpose.

Means must be narrowly tailored.

Front 102

Strict Scrutiny

Back 102

Law will be upheld if necessary to achieve a compelling government purpose.

Means must be least restrictive.

Front 103

Due Process

Back 103

Neither the fed nor state government may deprive anyone of life, liberty, or property, without due process of law.

Front 104

Before welfare benefits can be terminated

Back 104

need notice and hearing

Front 105

When SS disability benefits are terminated,

Back 105

need only be a post termination hearing.

Front 106

Before parental rights can be terminated

Back 106

need notice & hearing.

Front 107

What is the core of procedural due process?

Back 107

Has the government deprived a person of life, liberty (freedom), or property (entitlement)

Front 108

What is the core of substantive due process?

Back 108

Does the government have an adequate reason for depriving someone of life, liberty, or property?

Front 109

Two concerns of substantive due process

Back 109

1) Economic liberties
2) Individual privacy

Front 110

What test is used for laws affecting economic rights?

Back 110

Rational basis test.

Front 111

What is the basis of the Takings Clause?

Back 111

Government can take private property for public use if it provides just compensation.

Front 112

Two types of takings

Back 112

Possessory (physical) or regulatory (leaves no reasonably economically viable use of the property)

Front 113

Government conditions on development as takings

Back 113

Must be justified by a benefit that is roughly proportionate to the burden imposed, otherwise it's a taking.

Front 114

What is the basis of the Contracts Clause?

Back 114

No state shall impair the obligations of contracts (...by regulations / legislation)

Front 115

What level of scrutiny is used for Contracts Clause interference?

Back 115

Intermediate scrutiny (but not traditional)
1) Does the legislation substantially impair the party's rights under an existing K?
2) If YES, is the law a reasonably and narrowly tailored means of promoting an important and legitimate public interest?

Front 116

What level of scrutiny is used for state or local interference with government contracts?

Back 116

Strict scrutiny--state and local government can abrogate their own Ks only if strict scrutiny is met.

Front 117

PRIVACY

Back 117

Is a fundamental right, protected under "liberty" of the substantive due process clause.

Front 118

What level of scrutiny is used when the government interferes with a privacy right?

Back 118

Strict scrutiny.

Front 119

Examples of privacy

Back 119

1) right to marry
2) right to procreate
3) right to custody of kids
4) right to keep family together
5) right to contraception
6) right to abortion*
7) right to privacy (homosexual activity)
8) right to refuse medical treatment

Front 120

Is the right to physician-assisted suicide considered a fundamental right of privacy?

Back 120

No

Front 121

Special level of scrutiny for abortion.

Back 121

Viability test
1) prior to viability, states may not prohibit, but may regulate so long as they do not create undue burden
2) after viability, states may prohibit unless necessary to protect woman's life / health

Front 122

Other rights triggering strict scrutiny.

Back 122

Right to travel, right to vote, freedom of speech, freedom of association, free exercise of religion (so long as burdening law is not a neugral law of general applicabilty)

Front 123

Approach to equal protection questions

Back 123

1) What is the classification?
2) What level of scrutiny should be applied?
3) Does this law meet the level of scrutiny?

Front 124

Equal protection, strict scrutiny:

Back 124

Race & National Origin

Aleinage (sometimes)

Front 125

Equal protection, intermediate scrutiny

Back 125

Gender

Discrimination against non-marital children.

Front 126

When will gender discrimination be allowed?

Back 126

Only if it meets intermediate scrutiny test, and only if there's an exceedingly persuasive justification for the law.

Front 127

Alienage and equal protection

Back 127

In general, strict scrutiny.

Rational basis test is used for alienage classifications that concern self-government and the democratic process (voting, jury, police officer, teacher, probation officer).

Rational basis used for Congress' discrimination against aliens (plenary power to regulate immigration).

Intermediate scrutiny used for discrimination against undocumented alien children.

Front 128

All other types of discrimination use rational basis review, such as:

Back 128

Age discrim, disability discrim, wealth/poverty discrim, economic regulations, sexual orientation discrim

Front 129

Right to travel, what level of scrutiny?

Back 129

Laws that preent people from moving into a state must meet strict scrutiny.

Durational residence requirements must meet strict scrutiny.

Restrictions on foreign travel must meet rational basis test.

Front 130

Right to vote, what level of scrutiny?

Back 130

Laws that deny some citizens the right to vote must meet strict scrutiny.

One person, one vote.

Use of race in drawing election lines to benefit minorities must meet strict scrutiny.

Counting uncounted votes without standards violates equal protection.

Front 131

Two types of restrictions on speech.

Back 131

Content-based and content-neutral.

Front 132

What level of scrutiny must content-based restrictions meet?

Back 132

Generally, strict scrutiny.

Front 133

What types of restrictions are content-based?

Back 133

Viewpoint resrictions and subject matter restrictions.

Front 134

What level of scrutiny must content-neutral restrictions meet?

Back 134

Generally, intermediate scrutiny.

Front 135

What are prior restraints?

Back 135

Prior restraints prevent speech before it occurs, rather than punish it afterwards--rarely allowed.

Front 136

What level of scrutiny must prior restraints meet?

Back 136

Court orders supressing speech must meet strict scrutiny.

The govt can require a license for speech only if there is an important reason for licensing and clear criteria leaving almost no discretion to the licensing authority.

Front 137

Vagueness and overbreath (con law)

Back 137

If a statute does not specify in sufficient detail the prohibited conduct, it is overbroad or vague (generalized "inciteful behavior" or "fighting words" laws are unconstitutionally vague and overbroad)

Front 138

When can government regulate symbolic speech?

Back 138

If government's interest in regulating is important and unrelated to suppression of themessage, and if impact on communication is no greater than necessary to achieve government's purpose.

Front 139

What types of symbolic speech are protected?

Back 139

Flag burning, burning a cross so long as it's not a threat

Front 140

What types of symbolic speech are unprotected?

Back 140

Draft card burning, nude dancing

Front 141

Election campaign spending limits...?

Back 141

Contribution limits are constitutional;
Expenditure limits are unconstitutional

Front 142

Is anonymous speech protected under 1st A?

Back 142

Yes...people have a 1st A right to speak anonymously without exposing their identity.

Front 143

Less protected and unprotected speech?

Back 143

Incitement of illegal activity, obscenity and sexually-oriented speech, commercial speech, defamation, government secrets which government intends to limit access to

Front 144

When can government punish incitement of illegal activity?

Back 144

If there is a substantial likelihood of imminent illegal activity and if the speech is directed to causing imminent illegality.

Front 145

What is the test for obscene?

Back 145

1) The material must appeal to the prurient (shameful or morbid) interest.
2) the material must be patently offensive under the law prohibiting obscenity
3) taken as a whole, the material must lack serious redeeming artistic, literary, political or scientific value (on a national standard)

Front 146

What must defendant do to be guilty of possesion of obscene articles?

Back 146

Def must possess the material with intent to promote.

NY: a person who has six or more identical or similar obscene articles is presumed to possess with intent to promote.

"Private use" defense - def must conclusively show that he possessed the material for private use.

Front 147

May government punish private possession of obscene materials?

Back 147

No, except for child pornography.

Front 148

Is profane and indecent speech protected by the 1stA?

Back 148

Generally, YES.
Exceptions: over free broadcast media, and in school

Front 149

Are false/deceptive ads protected by 1stA?

Back 149

No...government can prohibit / punish false and deceptive ads, and those which promote criminal activity.

Front 150

Is defamation protected by the 1stA?

Back 150

In general, no.

Front 151

What are the categories of plaintiffs in defamation suits?

Back 151

Public offical
Public figure
Private figure, matter of public importance
Private figure, no public interest

Front 152

What must a public offical plaintiff in a defamation suit prove?

Back 152

By clear and convincing evidence, the falsity of the statement and actual malice.

Front 153

What is "malice" in defamation?

Back 153

Defendant knew statement was false or acted with reckless disregard for the truth.

Front 154

What must a public figure plaintiff in a defamation suit prove?

Back 154

By clear and convincing evidence, the falsity of the statement and actual malice.

Front 155

What must a private figure, public importance plaintif prove in defamation suit?

Back 155

Plaintiff must prove falsity and negligence by defendant.

However, plaintiff may recover presumed or punitive damages only by showing of actual malice.

Front 156

What must a private figure, no public importance plaintif prove in defamation suit?

Back 156

Plaintiff can recover presumed or punitive damages without showing actual malice.

Front 157

What places are available for speech?

Back 157

Public forums and limited public forums. Non-public and private forums are not available for speech.

Front 158

To regulate speech in a public forum, what standard must regulations meet?

Back 158

Regulations must be subject matter and viewpoint neutral, and if not, strict scrutiny must be met.

Front 159

What may government regulate in public forums?

Back 159

Time, place, or manner must serve an important government interest, and must leave open adequate alternatives.

Front 160

What standard must government meet to regulate speech in non-public forums?

Back 160

Rational basis test--regulation must be reasoanble and viewpoint neutral.

Front 161

What are examples of non-public forums?

Back 161

Military bases, areas outside prisons/jails, advertising space on city buses, sidewalks on post office property, airports

Front 162

What level of scrutiny must laws that prohibit or punish group membership meet?

Back 162

Strict scrutiny--freedom of association.

Front 163

What must be met to punish membership in a group?

Back 163

1) active affiliation,
2) knowing of groups illegal activities,
3) specific intent to further illegal activities.

Front 164

What level of scrutiny must laws require disclosure of group membership meet?

Back 164

Where such disclosure would chill association, strict scrutiny.

Front 165

Are laws that prohibit a group from discriminating constitutional?

Back 165

Yes, unless they target intimate exceptions (dinner parties) or expressive activity (Nazi party membership)

Front 166

Can the free exercise clause be used to challenge a neutral law of general applicability?

Back 166

No

Front 167

Test for establishment clause violations:

Back 167

The government violates the establishment clause if it fails any prong:
1) secular purpose for the law
2) effect of law must neither advance nor inhibit religion
3) no excessive entanglement with religion

Front 168

What level of scrutiny must government meet when it discriminates against religious speech or among religions?

Back 168

Strict scrutiny.

Front 169

When does equal protection apply?

Back 169

Equal protection applies where a statute or governmental action treats similar people in a dissimilar manner (i.e., classifies people)

Front 170

Which privileges and immunities are covered by the 14thA?

Back 170

The privileges and immunities covered by the 14thA are those attributes peculiar to United States citizenship (e.g., the right to petition Congress for redress or the right to vote for federal officers)

Front 171

When will a federal court step in to enjoin a state court proceeding?

Back 171

Fed cts generally will not enjoin pending state criminal proceedings, even if they have jurd. For purposes of this rule, a case is deemed to be pending as soon as it is filed.
Exception: fed cts will hear an action to enjoin a pending state court prosecution if it is being conducted in bad faith; e.g., merely to harass the defendant.

Front 172

Which laws govern wills & estates in New York?

Back 172

1) Estates Powers & Trust Law (EPTL)
2) Surrogate's Court Procedure Act (SCPA)
3) Uniform Simultaneous Death Act (USDA)

Hint 172

There are 3...

Front 173

Definition of "decedent"

Back 173

Dead person

Front 174

Definition of "intestate"

Back 174

Without a will

Front 175

Definition of "testator"

Back 175

Dead person who died with a will.

Front 176

Definition of "administration proceeding"

Back 176

A proceeding to appoint a personal representative, a.k.a., "administrator," to administer the estate of a person who dies intestate.

Front 177

Definition of "executor"

Back 177

Person who administers the estate of a person who dies testate (usually, the executor is named in the will).

Front 178

Definition of "probate proceeding"

Back 178

Proceeding to administer the property of a person who dies testate.

Front 179

Definition of "probate assets"

Back 179

Assets held in the decedent's name alone, that do not pass by operation of law, and that which the executor administers in accordance with the decedent's will.

Front 180

Definition of "operation of law"

Back 180

Property that passes automatically because of the way the property's title is held (not affected by existence of will or intestacy)

Front 181

3 ways property can pass:

Back 181

1) laws of intestacy
2) by will
3) by operation of law

Front 182

Definition of "issue"

Back 182

All persons who have descended from a common ancestor (synonymous with "descendants")

Front 183

Definition of "distributees"

Back 183

Those individuals who inherit property under intestate succession.

Front 184

Definition of "beneficiaries"

Back 184

Those individuals who receive a bequest (real property) under a will (bequest, a.k.a., legacy or devise)

Front 185

Definition of "residuary estate"

Back 185

The balance of the testator's estate after all claims, taxes, and particular bequests have been distributed...aka, "the rest and residue of my estate"

Front 186

Definition of "class gift"

Back 186

Gift to a group, ie, "all my children"

Front 187

When does intestacy law apply?

Back 187

1) no will
2) partial intestacy (will doesn't make complete disposition of estate)
3) probate denied due to successful will challenge

Hint 187

3

Front 188

Order of priority for appointment as administrator.

Back 188

1) surviving spouse
2) children
3) grandchildren
4) parents
5) siblings
6) any other distributee

Front 189

Intestate decedent, survived by spouse, no children/issue

Back 189

Surviving spouse takes whole estate.

Front 190

Intestate decedent, survived by spouse and children/issue

Back 190

1) if estate < $50k, spouse takes whole estate
2) if estate > $50k, spouse takes first $50k, then 1/2 remaining estate, and the other 1/2 goes to the children/issue by representation per capita at each generation

Front 191

Intestate decedent, not survived by spouse or issue

Back 191

1) parents or surviving parent
2) if none, issue of parents
3) if none, grandparents
4) if none, issue of grandparents

Front 192

When is a spouse disqualified from taking an intestate share?

Back 192

D - Divorce
I - Invalid divorce, procured by surviving spouse
S - separation agreement against surviving spouse
M - marriage is void (incestuous/bigamous)
AL - abandonment or lack of support

If any of these happen, treat the surviving spouse as if s/he had predeceased the dead spouse, and drop their share to their issue

Hint 192

DISMAL

Front 193

Who do adopted children inherit from?

Back 193

Adopting family.

Front 194

Who don't adopted children inherit from?

Back 194

Biological family, except in cases where child is adopted by a spouse of a biological parent (ie, dad dies, mom remarries, and stepdad adopts child)...then, child inherits from both adopting and biological family.

Front 195

Special rule for children adopted by family members.

Back 195

1) if child is related to decedent by both a natural and an adopted relationship, the child inherits under the natural relationship only, unless decedent was the adoptive parent, and then the child inherits under the adoptive relationship only.

Front 196

Class gifts and "adopted out child"

Back 196

An adopted child only takes as a beneficiary of a class gift made in the will of a natural family member if the child was adopted by another family member.

Front 197

When can a non-marital child inherit via the biological father?

Back 197

Only if paternity is established by:
1) legitimate marriage after birth
2) Order of Filiation in paternity suit
3) Father files affidavit of paternity with Putative Father Registry (witnessed, ack'd before notary)
4) Paternity estab'd in probate proceeding, by (i) clear & convincing evidence (ie, participation in school activities) and (ii) open & notorious acknowledgement of child as his own, or
5) blood genetic market test, plus clear & convincing evidence

Hint 197

5 ways

Front 198

Definition of "advancement" (wills)

Back 198

A lifetime gift to an intestate distributee that is in partial or total satisfaction of a later distribution.

Front 199

NY rule for advancements (wills)

Back 199

In NY, there is NO ADVANCEMENT unless proved by 1) a contemporaneous writing made at the time of the gift, and
2) writing signed by donor/donee

Front 200

How to include advancements in an estate for intestate distribution.

Back 200

Add value of the advancement to value of present estate, figure out the shares from that total amount, then subtract the advancement from the individual taker's share.

Front 201

Definition of "satisfaction of legacies" presumption (CL rule)

Back 201

Presumption that a lifetime gift to a beneficiary named in the testator's will is in partial or total satisfaction of a later legacy (CL)

Front 202

NY rule for "satisfaction of legacies" presumption.

Back 202

NY rejects "satisfaction of legacies" presumption. In NY, a lifetime gift is not treated as "satisfaction of legacy" unless proved by
1) contemporaneous writing,
2) signed by the donor or donee

Front 203

Effect of valid disclaimer (wills)

Back 203

Person who disclaims is treated as if s/he predeceased the testator/decedent.

Front 204

Elements of a valid disclaimer (wills):

Back 204

1) in writing, signed and ack'd before a notary
2) accompanied by separate affidavit that states no consideration was given (ie, you weren't paid to disclaim)
2a) court can authorize receipt of consideration for the disclaimer
3) disclaimer must be irrevocable
4) disclaimer must be filed in Surrogate's Court within 9 months of date of death.

Front 205

What happens during probate?

Back 205

1) judicial determination that decedent died with a validly executed will
2) intestate distributees determined (notice of will)
3) Executor is appointed

Front 206

Test for validly executed will

Back 206

1) signed/ack'd in PRESENCE of each witness
2) CAPACITY (over 18)
3) SIGNED
4) WITNESSES, two
5) signed at END of will
6) PUBLISHED (told it was a will)
7) THIRTY days from first witness signing

Hint 206

7 points test - PC SWEPT

Front 207

Definition of "codicil"

Back 207

Later amendment or supplement to a will, executed with 7-point formalities.

Front 208

Who bears burden of proof as to due execution?

Back 208

Will proponent (person offering will for probate, usually the executor).

Front 209

If will is not self-proved...

Back 209

...both attesting witnesses must testify as to the facts necessary to show due execution.

Front 210

What to do in cases of missing witnesses during probate?

Back 210

If one witness is dead/absent/incompetent/missing, the testimony of the other will suffice.
If both are unavailable, the will proponent must prove at least 2 signatures (the testator's and one other witness)

Front 211

Definition of "attestation clause" (wills)

Back 211

Attestation clause appears below the testator's signaure and above the witnesses' signature line, and recites all elements of due execution.

Front 212

What effect does an attestation clause have on a will?

Back 212

Attestation clause is prima facie evidence of facts presented (not legally required, but useful when witnesses has a "bad memory" or is hostile).

Front 213

Definition of "self-proving affidavit" (wills)

Back 213

Document, attached to back of will, in which witnesses sign a sworn statement in the presence of an attorney that recites all statements they would make if called to testify in court (ie, that 7 point test has been fulfilled)

Front 214

Effect of a "self proving affidavit"? (wills)

Back 214

Substitute for the live testimony of the witnesses. Will is admissible to probate on the strength of the sworn recitals in the affidavit, unless an interested party objects, in which case formal rules of proof of due execution apply (must call 2 attesting witnesses to testify)

Front 215

Who is an "interested witness"? (wills)

Back 215

Intestate distributee who is adversely affected by the admission of the will to probate.

Front 216

What happens if a will beneficiary is an attesting witness?

Back 216

Bequest to witness is VOID, unless
1) supernumeracy rule (at least 3 witnesses, 2 who were disinterested, so you don't need interested witness' signature to admit will for probate)
2) interested witness would be an intestate disributee if testator had died without will (interested witness takes lesser of either his bequest under the will or his intestate share)

Front 217

Foreign Wills Act: a will is admissible to probate in NY if it was validly executed under...

Back 217

1) laws of state where executed, regardless of testator's domicile at that time
2) NY law
3) Law of state where testator was domiciled, either when will was executed or at death

Hint 217

END

Front 218

Definition of "holographic will"

Back 218

Will entirely in testator's own handwriting and signed, but not witnessed.

Front 219

Definition of "nuncapative will"

Back 219

Oral will

Front 220

NY rule for holographic and nuncapative wills

Back 220

VOID, except for members of armed forces during declared/undeclared war (expires 1 yr after discharge) or mariners at sea (expires after 3 yrs)

Front 221

Holographic wills executed in other states

Back 221

If valid in that other state, even if not valid in NY, it will be valid under the Foreign Wills Act.

Front 222

Attorney malpractice...can beneficiaries sue for negligence after testator is dead?

Back 222

NO, there is no privity of K between beneficiaries and attorney--the estate can only bring an action for the costs of drafting the will (damages are de minimus)

Front 223

A will can be validly revoked by:

Back 223

1) Subsequent testamentary instrument, duly executed, or
2) physical act (burning, tearing, cutting, cancelling, obliteration, act of mutilation)

Hint 223

Only 2 ways

Front 224

Crossing out signature with big "X" (wills)

Back 224

Constitutes revocation by physical act...anything done to signature shows intent to revoke entire will.

Front 225

To the extent that a 2nd document (duly executed), which has no revocation language, is wholly inconsistent with a 1st document (duly executed)

Back 225

The 1st document is "revoked by implication".

Front 226

What is necessary for a valid revocation by proxy?

Back 226

Must be
1) at testator's request
2) in the testator's presence
3) witnessed by 2 witnesses of the act
...so, at least 4 people needed in the room

Front 227

Presumption when will was last seen in testator's possession/control but is not found after death

Back 227

Presumption that Testator revoked will by physical act.

Front 228

Presumption when will was last seen in testator's possession/control and is found mutilated after testator's death.

Back 228

Presumption that Testator revoked by physical act.

Front 229

In what ways can a testator change a will after it has been duly executed?

Back 229

In NY, only 2 ways:
1) duly execute a new will which revokes 1st will
2) duly execute a codicil, changing only parts of the 1st will

Hint 229

2 ways

Front 230

Rule for revival of revoked wills

Back 230

A will that has been revoked by a later will/codicil is NOT REVIVED simply by destroying the later will.

Front 231

Ways to revive a revoked will:

Back 231

1) Re-execution of revoked will, or
2) Republication by codicil (testator validly executes a codicil to will #1, referencing that will)

Hint 231

2 ways

Front 232

Doctrine of Dependent Relative Revocation (wills)

Back 232

Common law doctrine which permits revocation to be disregarded when premised/conditioned/dependent on a mistake of law as to the validity of another disposition (ie, testator's mistaken belief that by revoking will #2, he had revived will #1)

Front 233

Effect of Doctrine of Dependent Relative Revocation

Back 233

Disregard revocation of will #2, and permit its probate.

Front 234

When to apply Doctrine of Dependent Relative Revocation?

Back 234

When the disposition that results from disregarding the revocation comes closer (than intestate distribution) to doing what the testator tried, but failed, to do.

Front 235

Which courts in NY use Doctrine of Dependent Relative Revocation?

Back 235

Only one Apptellate Division court, so make sure you ARGUE IT BOTH WAYS ON THE BAR EXAM

Front 236

Proof of Lost Wills Statute

Back 236

Need all 3:
1) due execution (7 point test), AND
2) must be established that will was NOT revoked, AND
3) all provisions of the will must be clearly and distinctly proved by each of at least 2 credible witnesses, or by a copy or draft of the will proved to be true and complete

Hint 236

3 necessary elements

Front 237

Explaination of NY's anti-lapse statute.

Back 237

For a pre-deceased beneficiary, the gift to them lapses or fails, unless the pre-deceased beneficiary was testator's sibling or issue, and the pre-deceased beneficiary leaves issue who survive the testator.

Front 238

Explanation of the "surviving residuary beneficiaries" rule

Back 238

If testator's residuary estate is devised to 2 or more people, and the gift to one of them lapses or fails for some reason, and the anti-lapse statute does NOT apply, the othe rresiduary beneficiaries take the entire residuary estate, in proprotion to their interest in the residue.

Front 239

Rule: Class gifts: predeceased members of class, and will bequests.

Back 239

Class members who survive the tesator take lapsed gifts of predeceasing members of the class (if determined that testator was "group-minded")

Front 240

When individuals are named individually, and not as a class, ie, "to A, B, and C, the children of my brother", and some members predecease?

Back 240

Any lapsed gifts go towards the residuary estate.

Front 241

Rule of Convenience (wills)

Back 241

Class is closed (later-born members excluded) at the time a distribution to the class must be made (subject to gestation principle)

Front 242

Gestation Principal

Back 242

280 days from conception to birth

Front 243

Class closings and life estates.

Back 243

Class closes at the death of the life tenant or income beneficiary.

Front 244

Simultaneous deaths & USDA

Back 244

The property of each person is disposed of as if he had survived the other.

Front 245

What happens if testator gets married after writing his will, and no changes are made?

Back 245

No problem, because spouse can always take elective share.

Front 246

What happens if testator gets divorced after writing his will, and no changes are made?

Back 246

Read will as if spouse predeceased testator, so long as divorce is final.

Front 247

Definition of "incorporation by reference" (wills) (CL)

Back 247

At common law, the terms of an extrinsic document, not present at the time the will is signed (and thus not part of the will) can be incorporated by reference if the document was in existance when will was drafted, the will shows an intent to incorporate the document, and the extrinsic document is clearly identified in the will.

Front 248

NY rule regarding "incorporation by reference" (wills)

Back 248

NY does NOT recognize incorporation by reference, so everything MUST BE FULLY EXECUTED

Front 249

Examples of nonprobate assets:

Back 249

1) Property passing by right of survivorship (joint bank account, joint stock account, joint tenancy)
2) Property passing by K (life ins policy, employee benefits to someone other than decedent or decedent's estate)
3) Property held in trust
4) Property over which decedent held a power of appointment.

Front 250

Classification of gifts that can be made by a will:

Back 250

1) Specific (gift of tangible prop)
2) Demonstrative legacy (specific amt from specific source)
3) General legacy (specific amt from nonspecific source)
4) Residuary disposition
5) Intestate property

Front 251

Order in which gifts abate. (wills)

Back 251

1) intestate
2) residuary
3) general legacy
4) demonstrative legacy
5) specific gift

Front 252

NY rule with respect to exoneratin of liens (wills)

Back 252

Liens on specifically devised property are NOT exonerated, unless SPECIFICALLY directed by the will (general exoneration, directing "payment of all debts upon my death," does not work in NY)

Front 253

Definition of "ademption" (wills)

Back 253

Failure of a gift, because gift does not exist at the time the gift is made.

Front 254

Gift exceptions to ademption.

Back 254

Ademption does not apply to general and demonstrative legacies.

Front 255

Statutory exceptions to ademption

Back 255

1) insurance proceeds paid after death
2) sales proceeds of an executory contract, to the extent those proceeds are paid after death
3) sale by guardian/conservator of specifically bequeathed prop (beneficiary is entitled to receive funds if traceable)

Front 256

Ademption; gifts of stock in publicly traded companies...

Back 256

are general legacies, and don't adeem, unless language says "my ...stock" which evidences an intent to make a specific bequest (in which case, adeemable)

Front 257

Definition of "pretermitted child"

Back 257

Child born or adopted after will is executed.

Front 258

If testator had at least one child, and a will which made gifts to the other children, a pretermitted child takes...

Back 258

a share in the amount to the other children as if a class gift were made.

Front 259

If testator had at least one child, and it appears that the intention of the testator was to make a limited/nominal provision only to his children living at the time of execution, the pretermitted child takes...

Back 259

his intesate share.

Front 260

If testator had no children when will was executed, a pretermitted child takes...

Back 260

his intestate share.

Front 261

Definition of "abatement"

Back 261

If there are so many creditor claims against the estate that there aren't enough assets to cover all gifts made by will, the gifts ABATE (are not given effect, so that the creditors' claims can be paid)

Front 262

Ademption; gifts of shares of stock in closely held companies

Back 262

Evidence of a specific bequest, which means they will adeem.

Front 263

Stock splits and ademption.

Back 263

Splits are treated as specific bequests, whether language says "my" or not. Giftee takes all shares.

Front 264

Takeovers, stocks, and ademption.

Back 264

Ademption does not apply to specific bequests of stock in company #1 which is later taken over by company #2.

Front 265

Presumption of plain meaning.

Back 265

Absent suspicious circumstances, it is conclusively presumed that the testator read his will before he signed it, and intended its consequences. The plain meaning of the will won't be overturned by extrinsic evidence.

Front 266

Definition of extrinsic evidence:

Back 266

Evidence relating to a K/document but not appearing on teh face of the K/doc because it comes from other sources, such as statements between the parties or the circumstances surrounding the agreement.

Front 267

In general, when is extrinsic evidence NOT admissible?

Back 267

Extrinsic evidence is usually not admissible to contradict or add to the terms of an unambiguous document.

Front 268

Definition of "latent ambiguity"

Back 268

Misdescription - an error which is not evident by looking at the face of the will.

Front 269

Is extrinsic evidence admissible to clarify a latent ambiguity (to clarify a misdescription)?

Back 269

YES

Front 270

What types of extrinsic evidence are admissible to clarify a latent ambiguity?

Back 270

1) facts and circumstances evi (family, claimants, habits, and thoughts)
2) testator's declaration of intent third parties
3) testator's statements to his attorney who prepared the will

Front 271

Definition of "patent ambiguity"

Back 271

Mistake appearing on face of will, such as a typo.

Front 272

Is extrinsic evidence admissible to clarify a patent ambiguity?

Back 272

YES

Front 273

What types of extrinsic evidence are admissible to clarify a patent ambiguity?

Back 273

1) facts and circumstances evidence (family, claimants, habits, thoughts)
2) testator's statements to attorney who prepared will

NOT testator's declaration of intent to third parties

Front 274

What is precatory language, and what is its effect on a disposition?

Back 274

Precatory language doesn't impose a mandatory obligation to carry out testator's will, i.e., "I desire Bill to have Blackacre."

Precatory language won't work in a will; gift fails.

Front 275

What is a conditional will?

Back 275

Duly executed will premised on another event happening, ie, "If I should die on this trip, I leave all my property..."

Front 276

What do you do with a conditional will if condition is never met?

Back 276

2 arguments:
1) this is a conditional will, meaning that probate would be denied because condition was never met
2) this reference to the trip merely reflects a motive or inducement for making the will, but the intent to make a will is still valid

Front 277

Elements of an enforceable contract to make a will or not to revoke a will.

Back 277

To be enforceable, contracts ot make wills or not to revoke wills or trusts must be
1) in writing, and
2) signed by the party to be charged, therewith

Front 278

Joint wills / contractual wills ...executed on or after September 1, 1983.

Back 278

A joint will executed on or after this date is not contractual unless expressly stated to be.

Front 279

Joint wills / contractual wills ...executed before September 1, 1983.

Back 279

With respect to a joint will executed before this date, an agreement (contract) not to revoke may be implied by the language of the will (use of possessive plural pronouns, such as "we", plus a common plan for disposition of both parties' property)

Front 280

Effect of breach of contractual will

Back 280

If Will #1 is a contractual will, and survivor breaches by writing Will #2 with inconsistent provisions...
1st, probate Will #2,
2nd, impose a "constructive trust" in favor of the original intended beneficiares of Will #1

Front 281

Partial intestacy and the disinherited person, under the Common Law

Back 281

When a will doesn't make a complete disposition of property, resulting in partial intestacy, a disinherited person under the will can still take under instestacy (CL's rationale is that property passing by intestacy is governed by the intestacy statutes, not by decedent's will)

Front 282

NY's "Negative Bequest" Rule regarding partial intestacy and the disinherited person.

Back 282

Words of disinheritance are given full effect, even in partial intestacy...when words of disinheritance are clear in the will, treat the disinherited person as if she predeceased (doesn't take under intestacy)

Front 283

What is the spouse's elective share?

Back 283

The greater of $50k or 1/3 of the estate, plus interest at 6% beginning 7 months after issuance of letters testamentary.

If net estate < $50k, elective share = whole estate.

Front 284

What is the actual amount to which spouse is entitled if s/he takes elective share?

Back 284

Elective share, minus value of all outright dispositions passing to the spouse under the will or as testamentary substitutes.

Front 285

Elective share applies to net estate, after...

Back 285

...payments of debts, but before payment of estate taxes.

Front 286

Elective share vs. intestate share.

Back 286

In most cases, a surviving spouse's intestate share if decedent had died without a will would be larger than his/her elective share, *unless testamentary substitutes are involved.

Front 287

Net estate includes...

Back 287

...testamentary substitutes.

Front 288

What nonprobate transfers are considered testamentary substitutes?

Back 288

T - Totten Trust bank accounts
S - Survivorship estates (joint tenancies, tenancies by entirety, joint and survivor bank accounts)
L - lifetime transfers with "strings attached" (revocable trusts, and irrevocable transfers with retained life estates made on or after September 1, 1992)
E - employee pension, profit-sharing, derferred compensation plan (if employee designated the beneficiary on or after September 1, 1992, and otherwise, only 1/2 of a qualified plan is a testamentary substitute)
G - gifts made within 1 yr of deadh, in excess of annual $11k gift tax exclusoin; also, Gifts Causa Mortis (gifts made in fear of impending death, even within the $11k exclusion, and which are automatically revoked if donor survives peril)
U - US Govt Bond and other "Pay on Death" arrangements
P - powers of appointment - property over which decedent held a presently exercisable power of appointment, but not property over which he held a general testamentary power)

Hint 288

Testamentary Substitutes need a "leg up"

Front 289

What is a Totten Trust?

Back 289

A revocable trust created by one's deposit of money in one's own name as a trustee for another. A Totten Trust is commonly used to indicate a successor to the account without having to create a will.

Front 290

What probate transfers are NOT considered testamentary substitutes?

Back 290

L - Life insurance policies
O - one-half of qualified pension and profit-sharing benefits
G - gifts made w/in 1 year of death, within $12k annual exclusion
P - pre-marriage irrevocable transfers (gift to friend prior to marriage)
I - irroevocable transfers made more than 1 yr prior to death
T - transfers with retained life estate made prior to September 1, 1992

Hint 290

LOGPIT

Front 291

For survivorship estates, between deceased spouse and a 3rd party, what amount is considered a testamentary substitute?

Back 291

Consideration Furnished Test: whatever the spouse can prove the decedent contributed

Front 292

For survivorship estates, between deceased spouse and surviving spose, what amount is considered a testamentary substitute?

Back 292

1/2 of the estate = t-sub.

Front 293

Formula for calculating elective share

Back 293

Net probate estate
(+) Testamentary substitutes
---------------------------
(=) Elective Share Estate


1/3 Elective Share Estate
(-) Specific will amounts
(-) T-sub amounts
----------------------------
(=) Net elective share to which spouse is entitled to

Front 294

Elective share, t-subs, and intestacy

Back 294

If intestacy applies, and if the amount that surviving spouse takes under intestacy is greater than the elective share (due to t-subs), the surviving spouse has no elective share rights.

Front 295

How do you make up the elective share when decedent died with a will?

Back 295

In making up the net elective share, all other beneficiaries contribute pro ratably.

Front 296

Definition of elective share trust?

Back 296

Trusts which gives the surviving spouse a life estate (income to spouse for life)

Front 297

Elective share trusts, and decedents who die before Sept. 1, 1994.

Back 297

For estates of decedents dying before this date, the right to an elective share could be wiped out through the use of an elective share trust, as long as at least $50k was given outright to the sposue...if the sum of outright dispositions of at least $50k, plust the principle of the trust, equaled or exceeded the 1/3 elective share amount, then the spouse had NO right of election.

Front 298

Elective share trusts, and decedents who die after September 1, 1994.

Back 298

LIFE ESTATES NO LONGER SATISFY elective share entitlement. If there is an elective share trust in the will, it is attorney malpractice not to re-examine all wills executed before Sept. 1, 1994. If there is an elective share trusts, and the surviving spouse files for an elective share, read the trust as though the surviving sposue predeceased the testator, meaning, as though there was no life estate in the surviving spouse, and thus any remainder interest would be "accelerated"

Front 299

Procedural rules for elective share

Back 299

1) Must be filed for w/in 6 months of letters of testamentary/administation, & even with proper extensions, no longer than 2 years after death.
2) Only surviving spouse can choose election.
3) Election can be waived (must be in writing, signed, ack'd before notary)

Front 300

The decedent is a non-domiciliary, with property in NY--what elective share result?

Back 300

Only a spouse of a decedent domiciled in NY at teh time of death has a right of election, unless it is expressly stated in decedent's will that a disposition of property in NY is to be goverened by NY law

Front 301

The decedent is a domiciliary, with property out of state--what elective share results?

Back 301

Net estate includes value of the out of state property.

Front 302

What property is exempt from calculating the net estate (statutorily exempt "allowances")?

Back 302

1) car, up to $15k
2) furniture, appliances, computers, up to $10k
3) $15k cash allowance, not subject to creditors' claims except funeral expenses
4) animals, farm machinery, tractor up to $15k
5) books, pictures, videotapes, software up to $15k
6) TOTAL, up to $56k

Front 303

When is spouse disqualified from taking elective share?

Back 303

D - Divorce
I - Invalid divorce procurred by surviving sposue
S - separation decree (not agreement)
M - marriage void as incestuous
AL - abandonment or lack of support

Hint 303

DISMAL

Front 304

Will contest based on lack of testamentary capacity.

Back 304

Did testator have sufficient capacity to:
1) understand nature of act,
2) know nature and approximate value of property
3) know the natural object of his bounty,
4) understand disposition he was making

Capacity to make will requires less capacity than required for any other legal instrument.

Front 305

Even if testator wrote and signed her will after having been adjudicated incompetent...

Back 305

It could be found that testator executed a will during a lucid interval

Front 306

Will contest based on lack of testamentary capacity and insane delusions

Back 306

Testator has a persistent belief in supposed facts which have no real existence except in testator's perverted imagination...the supposed facts are against all evidence, probability, and control, and produce the exercise of the testamentary act.

Front 307

Will contest based on undue influence.

Back 307

Influence was exerted on testator that subverted the mind of the testator at the time of the will's execution, and resulted in a will that would not have been executed but for the influence.

Front 308

Inference of undue influence if...(wills)

Back 308

...beneficiary was in a confidential relationship with testator and was active in procuring the will.

Front 309

What happens if will makes bequest to attorney who prepared will?

Back 309

Inference of undue influence.

Surrogate Court will make Putnam Scrutiny (automatic), even if no one objects to probate, to determine whether gift was voluntarily made.

Front 310

What happens if will names drafting attorney as executor?

Back 310

For attorney's appointment to be valid,
1) attorney must have made a written disclosure to the client that any person could be named as executor, and that executor receives statuory compensation,
2) client must have signed and ack'd disclosure, with 2 witnesses

Front 311

Failure to comply with statutory disclosure requirements in case of drafting attorney named as executor?

Back 311

Attorney only gets 1/2 stautory commission.

Front 312

Will contest based on fraud.

Back 312

Either:
1) misrepresentation as to nature or contents of the instrument (fraud in the factum)
2) testator is induced into making a will or gift by misrepresentations of fact that influence her motivation (fraud in the inducement)

Front 313

Will contest based on mistake.

Back 313

Testator was mistaken as to nature of the instrument (ie, she thought she was signing a power of attorney)

Front 314

Majority rule for no-contest clauses (in terrorem clauses)

Back 314

No-contest rules are given full effect, unless court finds that contest was brought in good faith and with probable cause.

Front 315

Definition of "no contest clause" or "in terrorem clause"

Back 315

Clause in the will that says if anyone contests, he gets nothing.

Front 316

No-contest clauses in NY (wills)

Back 316

Clause is given full effect, even if there is probable cause to challenge the suit.

Front 317

Exceptions to rule regarding no contest clauses in NY

Back 317

No-contest clause will not be given full effect if the will contest is:
1) based on forgery, or that the will was revoked by a later will (if the surrogate finds probable cause for contest; does not apply to revocation by physical act)
2) filed on behalf of an infant/incompetent
3) a construction proceeding, to construe the will's terms (patent and latent ambiguities), OR
4) an objection to jurisdiction of court

Front 318

Definition of "power of appointment" (wills)

Back 318

An authority created by a person (creator / donor) to designate, within limits proscribed by the creator of the power, the persons who shall take the property and the manner in which they will take it.

Front 319

Definitions of "donor", "donee", and "takers in default"

Back 319

Donor - creates the power
Donee - is given the power
Takers in default - persons who take prop if donee fails to properly exercise power.

If person reserves power in herself, she is both donor and donee.

Front 320

General power of appointment

Back 320

One exercisable in favor of donee herself, her estate, her creditors, or the creditors of her estate.

Front 321

Special power of appointment (limited power of appointment)

Back 321

One exercisable in favor of a specified class of persons, not including donee, her estate, her creditors, or the creditors of her estate

Not permitted to appoint yourself as donee

Limited/designated class to which you can appoint the power.

Front 322

Presently exercisable power of appointment

Back 322

One exercisable by the donee during her lifetime (can be exercised by donee's will unless such an exercise is expressly prohibited)

Front 323

Testamentary power

Back 323

Exercisable only by donee's will.

Front 324

Elective shares, and powers of appointment

Back 324

General presently exercisable powers of appointment ARE reachable as a testamentary substitute for elective share purposes.

General testamentary powers of appointment and special powers of appointment are NOT reachable.

Front 325

What is are the applicable contracts laws on the MBE?

Back 325

1) Common law
2) UCC, Art. 2 (only applies to sales of goods)

Hint 325

there are 2

Front 326

What are the applicable contracts laws in NY?

Back 326

1) Common law, with NY variations
2) Art. 2 (sales of goods)
3) Art. 2a (leases of goods)

Hint 326

there are 3

Front 327

Defintion of "contract"

Back 327

Legally enforceable agreement

Front 328

Definition of "express contract"

Back 328

Legally enforceable agreement created by the parties' oral or written words.

Front 329

Definition of "implied contract"

Back 329

Legally enforceable agreement created by the parties' conduct.

Front 330

Definition of "quasi-contract"

Back 330

Equitable remedy that applies whenever contract law yields an unfair result. Quasi-K is goverened by principles of equity -- designed to protect against "unjust enrichment".

Front 331

What if the Statute of Frauds barred someone from enforcing a contract when the other party had already received the benefit?

Back 331

This is unjust enrichment, and quasi-contract might be a remedy that would come into play.

Front 332

In quasi-K, what can the plaintiff usually recover?

Back 332

The reasonable value of the benefit conferred, NOT the original contract price (usually, the value of the benefit conferred is LESS than the original contract price)

Front 333

Definition of "bilateral contract"

Back 333

Offer can be accepted by any reasonable way.

Extremely flexible in nature.

Every contract is bilateral, unless the offer specifically says that it can be accepted only by performing.

Front 334

Definition of "unilateral contract"

Back 334

An offer which specifically says it can be accepted only by performing.

Front 335

What is an "offer"?

Back 335

An offer is a manifestation of intention to be bound, created by words or conduct.

Front 336

Advertisements are generally NOT offers. To constitute an offer, an advertisement would need:

Back 336

1) quantity term
2) price
3) limit on number of people who can potentially accept

Front 337

Is an open price term in an offer too indefinite?

Back 337

Under common law, YES. Under common law, offer must contain a price.

Under Art. 2, NO.

Front 338

To be valid, an offer must be...

Back 338

1) an expression of promise, undertaking, or commitment to enter into K
2) definite and certain in terms
3) communicated to offeree

Front 339

Advertisements are generally... (offers or not offers?)

Back 339

NOT OFFERS...advertisements are generally "invitaions to deal"

Front 340

An offer may be accepted so long as it hasn't been...

Back 340

terminated.

Front 341

Lapse of offer

Back 341

After a stated time, or after a reasonable time has passed if no time is stated.

Front 342

Ways offer will terminate:

Back 342

1) offer lapses
2) offeror revokes offer
3) offeree rejects offer
4) death of either party before acceptance (except for irrevocable offers)

Hint 342

4 ways

Front 343

Ways in which offeror can revoke:

Back 343

1) direct (offeror unambiguously indicates revocation directly to offeree), OR

2) indirect (offeror's conduct unambiguously indicates that he's revoked, & the offeree is aware of the conduct)

Hint 343

2 ways

Front 344

When is revocation of an offer effective?

Back 344

Only on offeree's receipt of the revocation.

Front 345

What if the offeree already accepts the offer before she receives the offeror's revocation of the offer?

Back 345

It's too late for the offeror to revoke the offer, and the acceptance is valid.

Front 346

In general, the offeror can revoke any time...

Back 346

before acceptance.

Front 347

The offeror can generally revoke any time before acceptances, except in the following situations:

Back 347

1) option (promise to keep offer open, that's paid for)
2) reasonably foreseeable reliance before acceptance (only in contractor-subcontractor situations)
3) beginning performance, for a unilateral K
4) firm offer under Art. 2

Hint 347

there are 4

Front 348

Unilateral Ks...on the MBE, the offeror can no longer revoke when...

Back 348

once the offeree starts performing (mere preparation is not enough...the offeree must actually start performing for this exception to apply)

Front 349

Unilateral Ks...in NY, the offeror can no longer revoke when...

Back 349

In NY, an offer can be revoked UNTIL PERFORMANCE IS COMPLETED!

Front 350

Contractor/subcontractor rules on offers...

Back 350

When a subcontracter submits an offer that the contractor relies on in making a bid, the contractor still has the choice, after the bid is won, to accept or reject the offers.

Front 351

What is a "firm offer"

Back 351

Under Art. 2, a signed, written promise by a merchant to keep an offer open (merchant = businessperson)

Hint 351

must involve goods!

Front 352

What is the time limit on a firm offer?

Back 352

3 months

If writing says anything longer than that, it's reduced to 3 months.

If writing is silent, the offer would be firm for a reasonable time not to exceed 3 months.

Front 353

NY rule, regarding "firm offers"

Back 353

In NY, a signed, written promise is enough, even without consideration, and you don't have to be a merchant.

NOTE: the signed writing acts as a substitute for the consideration.

Front 354

What is considered "rejection" by the offeree?

Back 354

1) counteroffer
2) conditional acceptance
3) acceptance with additional, or different, terms (under CL, but not Art. 2)

Front 355

"Mirror image rule"

Back 355

Common law contracts rule that says if the offeree adds an additional clause to the offer, or changes something on the offer (even trivial), this operates as a rejection.

Front 356

Art. 2 has no mirror image rule. But, the additional / changed terms do not automatically become part of the contract...need:

Back 356

1) both parties to be merchants,
2) term changed is not "material"
3) offeror does not object within a reasonable amount of time

Hint 356

3 elements

Front 357

Under Art. 2, if both parties are merchants, and the offeree tries to change a material element of the offer,

Back 357

There is a contract, but it does NOT include the attempt to change the material element, UNLESS the term added is customary practice in the particular trade or industry (then, it's not considered a material change).

Hint 357

I.e., disclaimer of warranties is a material change. Saturday delivery is not a material change as between merchants.

Front 358

Commencing performance as acceptance of a bilateral contract...

Back 358

If offer doesn't require any particular acceptance, starting performance = acceptance, and starting performance also = promise to finish performance

Front 359

Commencing performance as acceptance of a unilateral contract

Back 359

An offer to enter a unilateral K can only be accepted by completing performance.

Starting performance does NOT obligate the performer to finish.

Front 360

On the MBE, for unilateral Ks, if offeree has started performing, can offeror revoke?

Back 360

NO (once performance starts, the offeror is bound, but the offeree is NOT bound...that's why it's called a unilateral K)

Front 361

In NY, for unilateral Ks, if the offeree has started performing, can the offeror revoke?

Back 361

In NY, YES, an offeror can revoke until performance is complete.

Front 362

What is the effect of commencing improper performance?

Back 362

It operates as both acceptance, and simultaneous breach, under CL and Art. 2.

Front 363

When does silence equal acceptance?

Back 363

Generally, never.

In NY, silence operates as acceptance of UNSOLICITED GOODS (such goods are considered unconditional gifts)

Front 364

When is acceptance effective?

Back 364

MAILBOX RULE: acceptance is effective when mailed.

Front 365

What happens if acceptance gets lost in the mail?

Back 365

Doesn't matter...acceptance is still effective when mailed...burden of loss is on offeror.

Front 366

Defenses (contracts)

Back 366

1) defendant's lack of capacity
2) duress
3) misrepresentation / non-disclosure of material fact
4) mutual mistake about material fact
5) lack of consideration (except in NY)
6) illegality
7) public policy
8) unconscionability

Hint 366

there are 8

Front 367

Defenses to formation of a K

Back 367

1) absence of mutual assent, ie, mutual mistake, misrepresentation
2) absence of consideration
3) public policy (illegality)

Front 368

Defenses based on lack of capacity (contracts)

Back 368

defendant under 18, intoxicated, or mentally incompetent

Front 369

Defenses to enforcement of a K

Back 369

1) Statute of Frauds
2) unconscionability

Front 370

What is "implied affirmation" (K law)

Back 370

an incapacitated party can impliedly affirm a K by retaining the benefit of the K without complaining after gaining (or regaining) capacity

Front 371

Mailbox rule and irrevocable offers?

Back 371

Mailbox rule does not apply to irrevocable offers.

Front 372

Mailbox rule: if offeree sends acceptance, then rejection?

Back 372

Mailbox Rule applies, and acceptance is effective, unless rejection gets there first and offeror detrimentally relies on rejection.

Front 373

Mailbox rule: if offeree sends rejection, then acceptance?

Back 373

Whichever gets there first is effective.

Front 374

What, if anything, is an incapacitated defendant liable for (K law)?

Back 374

Necessities (food, shelter, clothing, medical care), but only on a quasi K basis.

Front 375

elements of economic duress (K)

Back 375

1) threat to break existing K unless threatening party gets another/a better deal
2) the threatened party agrees only to get the original deal done, AND
3) there are NO OTHER ALTERNATIVES

Front 376

under K law, is an honest or innocent misrepresentation fatal to the K?

Back 376

YES, if it goes to a material fact

Front 377

are parties bound by Ks in which there is a mutual mistake regarding a material fact central to the K?

Back 377

NO

Front 378

what are considered material facts central to the K (with respect to mutual mistake)?

Back 378

mutual mistakes are material if they regard:
a) existence of something
b) what the something is

BUT NOT, what that something is worth

Front 379

are parties bound by Ks in which there is a unilateral mistake regardinga material fact central to the K?

Back 379

in general, yes. unless other party is aware of the first party's mistake

Front 380

Definition: "consideration"

Back 380

bargained-for legal detriment or benefit

(promise, performance, or forebearance)

Front 381

Is past consideration valid as consideration?

Back 381

MBE, NO

NY, YES, past consideration is binding if it is expressly stated in a signed writing and can be proved.

Front 382

What is required to modify a K under the common law?

Back 382

Consideration, due to the "Pre-Existing Duty Rule"

Front 383

What is required to modify a K under NY law?

Back 383

Modification must be contained in a signed writing

(no pre-existing duty rule; consideration NOT required if signed writing acts as substitute for consideration)

Front 384

What is required to modify a K under Art. 2?

Back 384

Good faith...consideration NOT required to modify K for goods (no pre-existing duty rule under K law)

Front 385

Is part payment valid consideration to forgive the rest of a disputed debt?

Back 385

YES, the law favors settlement of disputed claims.

Front 386

Is part payment valid comsideration to forgive the rest of an undisputed, due debt?

Back 386

MBE, NO

NY, yes, b/c you don't need consideration if the promise to forgive the balance of the debt is a signed writing

Front 387

Is a written promise to pay a debt, collection of which is barred by SOL, enforceable even without consideration?

Back 387

YES, in NY and on the MBE. The writing serves as a substitute for consideration.

Front 388

When can promissory estoppel serve as a substitute for consideration?

Back 388

When promisor should reasonably expect her promise to induce action or forebearance, of a definite and substantial character, and such action or forebearance is in fact induced.

Front 389

When will a court consider when reviewing non-compete clauses?

Back 389

1) the geographic & time scope, AND
2) the need for the covenant

Front 390

Is renunciation a defense to attempt in NY? (crim)

Back 390

YES (this is unlike the MS rule) *NY* - must make voluntary and complete renunciation and (a) thereby avoid the commission of object crime, or (b) if renunciation alone is not enuf, take affirmative stepts to prevent commission

Front 391

What is considered a felony in New York?

Back 391

Felonies are offenses for which death or a prison sentence of more than 1 year may be imposed.

Front 392

In NY, what is the rule when an accomplice testifies against another participant in the crime?

Back 392

In NY, a person may not be convicted solely upon the uncorroborated testimony of an accomplice, except in police disciplinary hearings.

Front 393

In NY, is withdrawal a defense to any inchoate crimes?

Back 393

YES, in NY, withdrawal is a defense to solicitation and conspiracy, if defendant
1) voluntarily and completely renounces, and
2) prevents the commission of teh object crime.

Front 394

In NY, what is the rule when a person solicited for a crime testifies against the solicitor?

Back 394

Defendant may be convicted upon the testimony of the person solicited.

Front 395

NY follows the (unilateral or bilateral) approach to conspiracy?

Back 395

Unilateral approach, also the MPC approach, which says that a single defendant can be convicted of a conspiracy, and you CAN conspire with a police officer.

Front 396

In NY, what is the difference between a "defense" and an "affirmative defense"?

Back 396

Defense -- must be disproved by the prosecution beyond a reasonable doubt.

Affirmative defense -- must be raised and proved by the defendant by a preponderance of the evidence (insanity, extreme emotional disturbance, entrapment, duress)

Front 397

What is "battery" in NY?

Back 397

In NY, there is no crime of battery. Common law battery is statutory assault in NY, and common law assault is statutory "attempted assault" in NY.

Front 398

What are the elements of Highly Reckless 2nd Degree Murder in NY?

Back 398

1) demonstrating depraved in difference to human life;
2) person recklessly engages in conduct that creates a grave risk of death to another
3) thereby causes the death of another

NOTE: force directed at the individual, with no intention to kill, may suffice for conviction.

Front 399

In NY, what felonies count for felony murder?

Back 399

* burglary, robbery, arson, kidnapping *

also: 1st degree rape/sodomy, sexual or aggravated sexual abuse, 1st & 2nd degree escape

Front 400

In NY, when does an accomplice have an affirmative defense to a felony murder charge?

Back 400

must meet all 4 qualifications:

1) he did not commit / aid in commission of homicidal act
2) he was not armed
3) he had no reasonable grounds to believe others were armed with deadly weapons
4) no reason to believe any participant intended to engage in conduct likely to cause death

Front 401

In NY, what crimes are considered first degree manslaughter?

Back 401

1) serious bodily harm resulting in death (similar to MS involuntary manslaughter)

2) extreme emotional disturbance murder (heat of passion)...defendant must raise and prove the affirmative defense of extreme emotional disturbance (similar to MS voluntary manslaughter)

3) unjustified abortional act

Front 402

In NY, what is generally considered second degree manslaughter?

Back 402

Reckless murder - conscious disregard of a substantial risk, which causes the death of another.

Intoxication is not a defense.

Front 403

What are the elemtnts of First Degree Kidnapping in NY?

Back 403

person abducts another

1) with intent to compel ransom, compel an act, or restrain an act, OR
2) victim restrained for more than 12 hours, with intent to inflict physical injury / terrorize, OR
3) victim dies

Front 404

What are the elements of 2nd Degree Kidnapping in NY?

Back 404

Abducting someone

Front 405

Affirmative defense to kidnapping in NY?

Back 405

Victim was a relative, and defendant's sole purpose was to assume control of victim.

Front 406

Elements of 1st Degree Rape / Sodomy in NY

Back 406

Person engages in sexual / deviate sexual intercourse with any other person:
1) who is less than 11, or
2) who is physically helpless, or
3) by forcible compulsion

Front 407

What is the rule when a victim tesifies against a sexual offender in NY?

Back 407

No corroboration required in cases of forcible rape, sodomy, or sexual abuse.

Defendant may not be convicted solely on testimony of the victim for any other sex crime. Corroborating evidence must tend to
1) establish attempt to have intercourse/sexual contact wtih victim, and
2) connect defendant with commission of the offense / attempt.

Front 408

What crimes are considered "larceny" in NY?

Back 408

1) larceny by trespassory taking
2) larceny by trick
3) false pretenses
4) embezzlement

Front 409

What acts are considered larceny in NY?

Back 409

1) acquiring lost / mislaid property
2) issuing a bad check
3) false promise
4) extortion
5) embezzlement
6) appropriating leased or rented items

Front 410

What is grand larceny in the 1st degree in NY?

Back 410

Property worth more than $1 million dollars

Front 411

What is grand larceny in the 2nd degree in NY?

Back 411

Property worth over $50,000, or extortion by fear of physical injury, damage to property, or defendant's abuse of his powers as a public servant.

Front 412

What is 3rd degree burglary in NY?

Back 412

1) Knowingly entering or remaining unlawfully,
2) in a building, and
3) intent to commit a crime therein

Front 413

What is 2nd degree burglary in NY?

Back 413

3rd degree, aggravated by any 1 of the following
1) dwelling
2) defendant injures a nonparticipant, or
3) def is armed

Front 414

What is 1st degree burglary in NY?

Back 414

burglary of dwelling or motor vehicle, and
1) defendant is armed, or
2) nonparticipant is injured by the defendant

Front 415

Explain arson in NY?

Back 415

3rd - intention damage to building or motor vehicle by starting fire or causing explosion

2nd - with knowledge that nonparticipant is in building or reasonable possibility

1st - explosion or fire by incendiary or explosive device