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123 Cards in this Set

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The Duty of a possessor/owner of land to licensees
Possessor owner has duty to warn licensees of concealed dangerous conditions that he or she is aware of. If π knows about a danger, he assumed the risk. AOR: π is subjectively aware of the risk of harm and knowingly exposes himself of that danger.
13th Am. & housing
construed to prohibit both public and private racial discrimination in housing.
Mens Rea for Involuntary Manslaughter
Δ's conduct is grossly/criminally negligent. More than tort negligence. Doesn’t rise to the level of recklessness. Lower, less serious.
Depraved Heart Murder
an unintentional killing resulting from Δ’s reckless conduct. Substantial / unjustifiable risk of death or serious bodily injury.
When does a person have a legal duty to aid another?
Generally, there's no legal duty to come to the assistance of a stranger in peril.
Legal Duty to Act exists in some special relationships of parties: H&W: duty to warn of impending danger and if you fail, you can be criminally liable for death and can be guilty of murder; parent-child; K – lifeguard is under a K’ual duty to render assistance to a swimmer who might be in peril of drowning; statute – good Samaritan statutes which require people to come to the assistance of another.
Police put listening device in jail cell & defendant makes a confession
4. Defendant has no reasonable expectation of privacy in a jail cell. Hofa case: undercover cop recorded conversation. USSC ruled that person has no right of privacy in jail cell, confession can be used in a subsequent criminal prosecution.
Executive Order v. an Act of Congress
Congress's Act supersedes and takes precedence over the Executive Order.
Promise to name a child a certain name in exchange for $
6. K: Restatement §79: where A is pregnant w/ the illegitimate child of B, who is a wealthy man, and A promises to give child B’s name in exchange for $, the naming of the child is sufficient consideration for B’s return promise.
6th Am. right to counsel in pre & post indictment lineups
pre-indictment lineups = no right to attorney.

post-indictment lineup = Δ has right to an attorney.
Right to a Speedy Trial
a federal indictment must be made w/in 30 days of an arrest.
Mortgage Hypo
a. E takes out a mortgage with BOA.
b. E defaults
c. BOA institutes foreclosure.
d. A purchases property at foreclosure sale. Here, title passes to A. BOA no longer has any interest in the property. A is now the legal owner of the property.
e. Original mortgage for $350K, and BOA sold to A for $250K, then the bank can seek and recover a deficiency judgment from E for the $100K difference.
f. A resells the property back to E, the original mortgagor.
g. E is now the record title owner.
h. BOA can sue in personam to secure deficiency judgment but no in rem action against the property.
How grantees & devisees must be identified in a conveyance or a devise
the grantees or the devisees must be identified with reasonable certainty. “To all the residents living in Cliffwood.” Can’t identify these grantees/residents with reasonable certainty, so it’s invalid.
14th Am
applies to states; not the FG.
P&I of A4 Section 2
invalidates state laws that discriminate against non-residents in a commercial or economic activity or endeavor.
Mistake of Fact as a Defense for SI & GI Crimes
SI: may be a defense for a SI crime, whether it’s reasonable or unreasonable, as long as it’s honest.

GI: it must be a reasonable mistake.
Assault
SI crime: intent to commit a battery. In minority it’s intent to frighten.
Criminal Battery
GI crime: Criminal battery is the unlawful application of force to the person of another. Guilty if injury though criminal negligent or reckless conduct. Don’t have to specifically intend to injure your victim b/c it’s a GI crime. Even careless.
President's Powers
Commander in Chief of the Armed Forces: military, army, navy, air force.

Pardoning power for persons convicted of federal crimes.
Under Sep. of Power: Congress can’t limit President’s pardoning power.

Appointment power

Validity of an Executive Order/ Agreement: If in conflict w/ an earlier act of Congress, Act of Congress will supersede. EO will take precedence and supersede over a conflicting state law.
What does the 6th Amendment strive to protect when a party seeks to admit a declarant's statement into evidence?
The confrontation clause of the 6th Amendment strives to protect the opportunity to XEX the declarant who made the statement.
Sentencing guidelines & Apprendi v. NJ
USSC ruled that any fact, which increases the penalty/enhanced sentence for a crime beyond the statutory guidelines must be proved BRD.
When do police have to give someone Miranda warnings?
Miranda: think: custodial interrogation. Once they have Δ in custody, before they interrogate, they must notify him of M rights.
a. Was there a valid Waiver?
b. Was the Δ in police custody?

On the scene questioning is ok
Objective Test:
1. Where did the questioning take place?
2. How long was the Δ being questioned?
3. How many officers were involved?
4. Did Δ subjectively believe he was free to leave?

Oregon v. Mathiason: no custody when person came to the police station in response to an invitation from police.
Negligence v. Battery in a respondeat superior situation
Respondeat superior: employer is held vicariously liable for the negligence of his employee that occurs w/in the scope of the employment relationship.

Where employee commits intentional tortuous acts, employer isn’t liable unless employee commits the intentional torts in the furtherance of his employer’s business.
Defamation of a Public Figure or a Limited Purpose Public Figure
Plaintiff must show malice: knowledge of falsity or reckless disregard of the truth.
Defamation of a Private individual
negligence – π only has to show that Δ was negligent to recover.
When is a will legally operative?
When the testator dies.
Spousal Privilege
prevents one spouse from testifying against another in a criminal case. The witness-spouse is the holder of the privilege, not the Δ spouse.
Marital Privilege
Δ can prevent the other spouse from testifying in marital privilege. It protects all confidential communications during the marriage.
What does privilege law generally aim to protect?
c. Priv Law Protects confidential communications: if a party makes a statement in the presence of 3rd persons, confidentiality waived and the privilege is lost.
What is the USSC's Original Jurisdiction?
a. Ambassadors
b. Other public Ministers
c. Consuls
d. Cases in which a State is a party

OJ of USSC can’t be constitutionally expanded. Congress can’t give immediate, OJ to USSC & enlarge OJ of USSC.
Joint Tortfeasors
Where 2 or more combined act that causes indivisible injury, each is j&s liable for the full amount of damages.

Don’t confuse that with a situation where the acts are separate and distinct injuries: T1 shoots, T2 stabs. T1 is liable for shooting; T2 liable for stab.
Common Law Burglary
breaking, entering, dwelling house, or another, at night w/ intent to commit a larceny or felony therein.
Common Law Larceny
the trespassory taking & carrying away of the personal property of another w/ intent to steal or permanently deprive forever.
Continuing Trespass
a person takes another’s property w/o permission intending to return or restore it and thereafter you change your mind & decide to keep it, then you’re guilty of larceny.
How can an offer or order calls for the shipment or delivery of goods be accepted?
UCC 2-206: Where an offer or an order calls for the shipment or delivery of goods, it can be accepted either by a prompt promise to ship or by a prompt or current shipment. If Seller sends non-conforming goods, the shipment is a valid acceptance, & simultaneously there’s a breach of K.

Fact Pattern: Where buyer orders X9 computers and seller doesn’t have that but has X7 computers. Seller tells buyer, that to accommodate, he’s sending substitute goods. If seller notes accommodation, that’s a conditional acceptance.
Contracts of Minors
can’t ratify the K if you are still a minor. An effective ratification can’t take place prior to the attainment of majority. If minor sues you b/c he wants to go through with a K for sale, then you will win b/c the K is voidable due to the minor's minority.
Mutual Mistake
where both parties to a K or an agreement are mutually mistaken regarding the terms. If the party’s mutual mistake goes to the heart or essence of the K, it will be grounds for rescission. A boundary line agreement – and parties are mutually mistaken as to the accuracy of the boundary line. Remedy: equity will do equity.
Valid Conveyance
the deed must adequately describe the land being conveyed. If no adequate description, the conveyance will fail for indefiniteness.
Free Exercise Clause
Exam Tip: when a question deals w/ FEC, look to see whether the law has an indirect or incidental burden on religion or if it’s a direct & purposeful burden.

i. Indirect: RBS: presumptively valid if RR to legit gov’t interest.

ii. Direct: SS: gov’t will have to show necessary to achieve compelling state interest.
Executive Order re: foreign commerce
Congress Has Plenary Power to Reg. Interstate Commerce & Commerce w/ Foreign Nations.

Executive Order: if it deals w/ foreign commerce, it’s unconstitutional b/c Congress, not the President, has the power and authority to regulate foreign commerce. Unless a federal statute authorizes the issuance of such an Executive Order.
Installment Land Sale K's
Sometimes, a buyer wants to buy property but can’t obtain a conventional mortgage b/c of bad credit rating. Some states allow ILSC when a buyer can’t obtain a conventional mortgage.
a. ILSC: buyer is allowed to make a series of installment payments to the seller over an extended period of time. After the last installment payment, title passes to the buyer.
i. It’s Not A Lease: If the buyer defaults, or is in beach, then the buyer still has the right of redemption. He’s granted an extension. So, the ILSC is really the same as the mortgage b/c a mortgagor in default is given the same right of redemption. Can redeem w/in a reasonable time.
Equitable v. Statutory Right of Redemption
a. At common law, when a mortgagor failed to make his mortgage payment on the due date (law day) title of property was forfeited. Only remedy that mortgagor has was to go to equity court & request an equity of redemption – the right to pay off the mortgage & make the late payment & get an extension from the court. In response, lenders sought a decree of strict foreclosure (To bar, shut out). If court issues a foreclosure decree, that bars the equity of redemption. So, in that case, the mortgagor’s only recourse is to seek a statutory right of redemption.
b. Statutory Right: mortgagor’s right to redeem during a statutory period after the foreclosure decree.
c. If Q says foreclosure sale, make an assumption that there’s been a decree of strict foreclosure & only recourse is a statutory right of redemption.
Bargained for Exchange
General Rule: When a debt is not in dispute, debtor is obligated to make full payment. Pyament of less will not be sufficient consideration to extinguish the debt obligation.
However, Forbearance to sue is adequate consideration to extinguish a past debt obligation.
Accord & Satisfaction
2 requirements
i. Must be a bona fide claim or the amount is in dispute
ii. Made in good faith
Statute of Frauds
MYLEGS
a. M: Marriage – a K in consideration of marriage, must be in writing to be enforceable.
b. Y: a K not to be performable w/in span of 1 year
c. L: a K for the sale or transfer of an interest in land
d. E: K of an executor
e. G: guarantee – a promise to answer for the debt of another. Oral promise unenforceable under SOF
f. S: SOG of $500 or more
Duty to Act Affirmatively
b. Rule – a person is under no legal duty to render assistance to a stranger in peril.
i. Dr. owes no legal duty to render assistance and absent a good Samaritan statute he won’t
Leading Questions
generally permissible on the XEX of a witness. One exception: if the W is biased in favor of the cross-examiner, then leading questions are not allowed. Like if a Δ is being cross-examined by his own attorney.
Catch-all Provision to the Hearsay Rule
a. Hearsay deals w/ trustworthiness – sometimes an out of court statement will be trustworthy even though it doesn’t fit into an exception. If it is, it can be admitted under this.
b. Court looks to the following to determine trustworthiness – Circumstantial guarantees of Trustworthiness:
i. Whether statement was made under oath;
ii. Whether declarant has 1st hand knowledge of the event
iii. Motivation to speak truthful;
iv. Duration or time-lapse b/n the event and statement.
Executive Order v. State Law
a. Executive agreement takes precedence over conflicting state law.
4th Amendment State Actor Requirement
a. 4th A prohibition against illegal S+S only applies to Gov’t conduct.
b. Does not apply to searches conducted by private individuals.
Recording Statutes: Notice or Race Notice
Protect a subsequent BFP, who pays value, w/o notice. If statute says “w/o notice” that means the purchaser doesn’t have actual or constructive notice of another’s claim. Buyer must conduct a title search in the grantor/grantee index at the recorder’s office, and buyer must also conduct a physical inspection of the property. If you don’t inspect then you’re not a BFP.
Restatement Definition of Negligence
a. Conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm.
b. Δ is under no duty of care to prevent an accident. Δ is under a duty to decrease the risk of harm to protect others against an unreasonable risk. If your failure increases the risk of harm, you can be held liable.
Dying Declaration
FRE 804
i. Are admissible in all cases except Non-homicide criminal cases; and
ii. The statement must refer to the cause or circumstances attending the supposed impending death.
Criminal Liability for Felony Murder
a. All participants are guilty of FM for any unintentional or accidental killing that occurs during the commission or attempted commission of a serious or inherently dangerous felony to human life or limb:
i. BARK
1. Burglary
2. Arson
3. Rape
4. Robbery
5. Kidnapping
Agency Theory of Felony Murder
This is an expansion of the Redline Limitation - Killing must be caused by one of the participants for them to be liable
Human Shield Exception to the Agency Theory
if the felon uses a victim as a shield, and the victim is killed by the police, then the felon is criminally liable for the victim’s death, even though he didn’t personally cause the death
Redline Limitation to Felony Murder Rule
There is no Felony-Murder liability when the shooting constitutes a justifiable homiced, e.g., where the policeman or felony victim shoots the felon to prevent his escape.
Search and Seizure of Abandoned Items or Effects
a. Does not constitute a search
b. Under the 4th, in order to determine whether an item has been abandoned, look to see if Δ has intended to relinquish control over the item, e.g., garbage or trash.
Affirmative Defense of Consent
a. Affirmative defense for intentional torts
b. Here, Δ exceeds the authorized consent.
i. If we agree to engage in a fistfight, and I pull out a knife, it exceeds the consent and Δ is liable for battery
c. Look out for where a patient retains a certain doctor to perform an operation who decides not to perform and replaced w/ another Dr who is as qualified or more qualified, he will still be liable for battery b/c patient consented to procedure being performed by 1 not 2.
Firefighter's Rule
i. When police or firefighter is responding to an emergency, they may drive over the speed limit in responding to an emergency and are not liable for accidents that occur, UNLESS they were reckless.
Inverse Order of Alienation Rule
Applies when a mortgaged tract of land is "sold off" or conveyed in parcels and the various grantees pay full value to mortgagor w/out getting a release from the mortgagee. Upon default, if th eMortgagee forecloses, the "inverse order" rule will require the mortgagee to proceed first against the lands still owned by Mortgagor, and then proceed against the other parcels in the inverse order in which they were sold unti lthe mortgage is fully satisfied.

Example:
i. C purchases blackacre in 1990 and takes out a mortgage w/ Wells Fargo who records it. After occupying blackacre for several years, C decides to subdivide and sell off parcels. In 1998 C sells lot 1 to D. When he does this, there is no mention made in the deed re the mortgage on the entire tract of land. In 2003, C sells lot 2 to F. This deed also does not mention the mortgage. In 2006, C defaults on the mortgage. C occupies lot 3 and lives there.
ii. Here, Bank files foreclosure action on the property – it must first foreclose on lot 3 b/c that’s the property retained and owned by mortgagor. If the proceeds from the foreclosure sale are insufficient to payoff the mortgage debt, then WF may foreclose on the other 2 parcels, BUT in the inverse order of alienation, e.g., lot 2 first, and if proceeds are still insufficient, then they can foreclose on lot 1.
1. rationale – C has the most equity in lot 3, and the second most equity in lot 2 b/c he sole it in 2003, and the least amount of equity in lot 1 b/c he sold it in 1998.
Fructus Industriales
Growing crops are generally classified as personal property and will pass w/ a sale or mortgage of the land, unless expressly excluded.

A purported sale of growing crops is considered to be a K to sell the crops when they come into existence.

Growing Crops are subject to administration as perosonal property if the land owner dies intestate.

Growing crops are considered part of the land and pass to the devisee of the land if the land owner dies testate but makes no specific gift of the emblements.
FRE 408 v. 409
a. 408: settlement & compromise negotiations – admissions, statements made during settlement negotiations are excluded and they are not admissible. Against public policy to admit them b/c we want parties to freely settle w/o resorting to litigation.
i. There must be an actual dispute between the parties. Accident, π has been hospitalized “I know you have a lawyer but I’m willing to settle, I’ll pay for medical if you agree not to sue me.” This is really an attempt to settle – trying to reach a settlement agreement. Pay medical in EXCHANGE to agree not to sue. This is an offer to compromise and nothing comes in.
b. 409: Offers to pay medical or hospital expenses – are inadmissible to prove fault or negligence. They are excluded as evidence to show fault/responsibility for an accident.
i. However: where admission made in connection w/ offer to pay medical or hospital expenses, sever. Admit the admission and exclude offer to pay hospital or medical expenses.
Psychiatrist-Patient Privilege
a. Did not exist at CL, nor does it exists under Fed rules.
b. Here, you have to apply fed rule 501 –
i. the Privilege of a W shall be governed by the principles of modern common law as they may be interpreted by the courts of the united states.
c. Note – Π’s suit against Δ arose under Fed Law, and the priv of Δ not to let Dr. testify under state law does not apply – has to be under modern common law
3rd Party Beneficiary Ks
a. Where you have a promissor entering into a K w/ promisee, sometimes they will reference a 3rd party. Where you see a 3rd party referred to in a K, you have to determine whether he’s an intended 3rd party Benny or an incidental Benny
i. Incidental Benny’s cannot enforce a K made in his/her behalf
ii. Intended Benny can enforce
Intent to Benefit Test
i. Ask: when promissor/ee entered into the K, was their main intent to benefit themselves rather than 3rd party? If so, then 3rd party is an incidental benny. However, if their main intent is to benefit the 3rd party and not themselves, then he’s an intended benny and can enforce AFTER his K rights vest.
Restatement Definition of Negligence
a. Conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm.
b. Δ is under no duty of care to prevent an accident. Δ is under a duty to decrease the risk of harm to protect others against an unreasonable risk. If your failure increases the risk of harm, you can be held liable.
Dying Declaration
FRE 804
i. Are admissible in all cases except Non-homicide criminal cases; and
ii. The statement must refer to the cause or circumstances attending the supposed impending death.
Criminal Liability for Felony Murder
a. All participants are guilty of FM for any unintentional or accidental killing that occurs during the commission or attempted commission of a serious or inherently dangerous felony to human life or limb:
i. BARK
1. Burglary
2. Arson
3. Rape
4. Robbery
5. Kidnapping
Agency Theory of Felony Murder
This is an expansion of the Redline Limitation - Killing must be caused by one of the participants for them to be liable
Human Shield Exception to the Agency Theory
if the felon uses a victim as a shield, and the victim is killed by the police, then the felon is criminally liable for the victim’s death, even though he didn’t personally cause the death
Redline Limitation to Felony Murder Rule
There is no Felony-Murder liability when the shooting constitutes a justifiable homiced, e.g., where the policeman or felony victim shoots the felon to prevent his escape.
Search and Seizure of Abandoned Items or Effects
a. Does not constitute a search
b. Under the 4th, in order to determine whether an item has been abandoned, look to see if Δ has intended to relinquish control over the item, e.g., garbage or trash.
Affirmative Defense of Consent
a. Affirmative defense for intentional torts
b. Here, Δ exceeds the authorized consent.
i. If we agree to engage in a fistfight, and I pull out a knife, it exceeds the consent and Δ is liable for battery
c. Look out for where a patient retains a certain doctor to perform an operation who decides not to perform and replaced w/ another Dr who is as qualified or more qualified, he will still be liable for battery b/c patient consented to procedure being performed by 1 not 2.
Firefighter's Rule
i. When police or firefighter is responding to an emergency, they may drive over the speed limit in responding to an emergency and are not liable for accidents that occur, UNLESS they were reckless.
Inverse Order of Alienation Rule
Applies when a mortgaged tract of land is "sold off" or conveyed in parcels and the various grantees pay full value to mortgagor w/out getting a release from the mortgagee. Upon default, if th eMortgagee forecloses, the "inverse order" rule will require the mortgagee to proceed first against the lands still owned by Mortgagor, and then proceed against the other parcels in the inverse order in which they were sold unti lthe mortgage is fully satisfied.

Example:
i. C purchases blackacre in 1990 and takes out a mortgage w/ Wells Fargo who records it. After occupying blackacre for several years, C decides to subdivide and sell off parcels. In 1998 C sells lot 1 to D. When he does this, there is no mention made in the deed re the mortgage on the entire tract of land. In 2003, C sells lot 2 to F. This deed also does not mention the mortgage. In 2006, C defaults on the mortgage. C occupies lot 3 and lives there.
ii. Here, Bank files foreclosure action on the property – it must first foreclose on lot 3 b/c that’s the property retained and owned by mortgagor. If the proceeds from the foreclosure sale are insufficient to payoff the mortgage debt, then WF may foreclose on the other 2 parcels, BUT in the inverse order of alienation, e.g., lot 2 first, and if proceeds are still insufficient, then they can foreclose on lot 1.
1. rationale – C has the most equity in lot 3, and the second most equity in lot 2 b/c he sole it in 2003, and the least amount of equity in lot 1 b/c he sold it in 1998.
Fructus Industriales
Growing crops are generally classified as personal property and will pass w/ a sale or mortgage of the land, unless expressly excluded.

A purported sale of growing crops is considered to be a K to sell the crops when they come into existence.

Growing Crops are subject to administration as perosonal property if the land owner dies intestate.

Growing crops are considered part of the land and pass to the devisee of the land if the land owner dies testate but makes no specific gift of the emblements.
FRE 408 v. 409
a. 408: settlement & compromise negotiations – admissions, statements made during settlement negotiations are excluded and they are not admissible. Against public policy to admit them b/c we want parties to freely settle w/o resorting to litigation.
i. There must be an actual dispute between the parties. Accident, π has been hospitalized “I know you have a lawyer but I’m willing to settle, I’ll pay for medical if you agree not to sue me.” This is really an attempt to settle – trying to reach a settlement agreement. Pay medical in EXCHANGE to agree not to sue. This is an offer to compromise and nothing comes in.
b. 409: Offers to pay medical or hospital expenses – are inadmissible to prove fault or negligence. They are excluded as evidence to show fault/responsibility for an accident.
i. However: where admission made in connection w/ offer to pay medical or hospital expenses, sever. Admit the admission and exclude offer to pay hospital or medical expenses.
Psychiatrist-Patient Privilege
a. Did not exist at CL, nor does it exists under Fed rules.
b. Here, you have to apply fed rule 501 –
i. the Privilege of a W shall be governed by the principles of modern common law as they may be interpreted by the courts of the united states.
c. Note – Π’s suit against Δ arose under Fed Law, and the priv of Δ not to let Dr. testify under state law does not apply – has to be under modern common law
3rd Party Beneficiary Ks
a. Where you have a promissor entering into a K w/ promisee, sometimes they will reference a 3rd party. Where you see a 3rd party referred to in a K, you have to determine whether he’s an intended 3rd party Benny or an incidental Benny
i. Incidental Benny’s cannot enforce a K made in his/her behalf
ii. Intended Benny can enforce
Intent to Benefit Test
i. Ask: when promissor/ee entered into the K, was their main intent to benefit themselves rather than 3rd party? If so, then 3rd party is an incidental benny. However, if their main intent is to benefit the 3rd party and not themselves, then he’s an intended benny and can enforce AFTER his K rights vest.
Restatement Definition of Negligence
a. Conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm.
b. Δ is under no duty of care to prevent an accident. Δ is under a duty to decrease the risk of harm to protect others against an unreasonable risk. If your failure increases the risk of harm, you can be held liable.
Dying Declaration
FRE 804
i. Are admissible in all cases except Non-homicide criminal cases; and
ii. The statement must refer to the cause or circumstances attending the supposed impending death.
Criminal Liability for Felony Murder
a. All participants are guilty of FM for any unintentional or accidental killing that occurs during the commission or attempted commission of a serious or inherently dangerous felony to human life or limb:
i. BARK
1. Burglary
2. Arson
3. Rape
4. Robbery
5. Kidnapping
Agency Theory of Felony Murder
This is an expansion of the Redline Limitation - Killing must be caused by one of the participants for them to be liable
Human Shield Exception to the Agency Theory
if the felon uses a victim as a shield, and the victim is killed by the police, then the felon is criminally liable for the victim’s death, even though he didn’t personally cause the death
Redline Limitation to Felony Murder Rule
There is no Felony-Murder liability when the shooting constitutes a justifiable homiced, e.g., where the policeman or felony victim shoots the felon to prevent his escape.
Search and Seizure of Abandoned Items or Effects
a. Does not constitute a search
b. Under the 4th, in order to determine whether an item has been abandoned, look to see if Δ has intended to relinquish control over the item, e.g., garbage or trash.
Affirmative Defense of Consent
a. Affirmative defense for intentional torts
b. Here, Δ exceeds the authorized consent.
i. If we agree to engage in a fistfight, and I pull out a knife, it exceeds the consent and Δ is liable for battery
c. Look out for where a patient retains a certain doctor to perform an operation who decides not to perform and replaced w/ another Dr who is as qualified or more qualified, he will still be liable for battery b/c patient consented to procedure being performed by 1 not 2.
Firefighter's Rule
i. When police or firefighter is responding to an emergency, they may drive over the speed limit in responding to an emergency and are not liable for accidents that occur, UNLESS they were reckless.
Inverse Order of Alienation Rule
Applies when a mortgaged tract of land is "sold off" or conveyed in parcels and the various grantees pay full value to mortgagor w/out getting a release from the mortgagee. Upon default, if th eMortgagee forecloses, the "inverse order" rule will require the mortgagee to proceed first against the lands still owned by Mortgagor, and then proceed against the other parcels in the inverse order in which they were sold unti lthe mortgage is fully satisfied.

Example:
i. C purchases blackacre in 1990 and takes out a mortgage w/ Wells Fargo who records it. After occupying blackacre for several years, C decides to subdivide and sell off parcels. In 1998 C sells lot 1 to D. When he does this, there is no mention made in the deed re the mortgage on the entire tract of land. In 2003, C sells lot 2 to F. This deed also does not mention the mortgage. In 2006, C defaults on the mortgage. C occupies lot 3 and lives there.
ii. Here, Bank files foreclosure action on the property – it must first foreclose on lot 3 b/c that’s the property retained and owned by mortgagor. If the proceeds from the foreclosure sale are insufficient to payoff the mortgage debt, then WF may foreclose on the other 2 parcels, BUT in the inverse order of alienation, e.g., lot 2 first, and if proceeds are still insufficient, then they can foreclose on lot 1.
1. rationale – C has the most equity in lot 3, and the second most equity in lot 2 b/c he sole it in 2003, and the least amount of equity in lot 1 b/c he sold it in 1998.
Fructus Industriales
Growing crops are generally classified as personal property and will pass w/ a sale or mortgage of the land, unless expressly excluded.

A purported sale of growing crops is considered to be a K to sell the crops when they come into existence.

Growing Crops are subject to administration as perosonal property if the land owner dies intestate.

Growing crops are considered part of the land and pass to the devisee of the land if the land owner dies testate but makes no specific gift of the emblements.
FRE 408 v. 409
a. 408: settlement & compromise negotiations – admissions, statements made during settlement negotiations are excluded and they are not admissible. Against public policy to admit them b/c we want parties to freely settle w/o resorting to litigation.
i. There must be an actual dispute between the parties. Accident, π has been hospitalized “I know you have a lawyer but I’m willing to settle, I’ll pay for medical if you agree not to sue me.” This is really an attempt to settle – trying to reach a settlement agreement. Pay medical in EXCHANGE to agree not to sue. This is an offer to compromise and nothing comes in.
b. 409: Offers to pay medical or hospital expenses – are inadmissible to prove fault or negligence. They are excluded as evidence to show fault/responsibility for an accident.
i. However: where admission made in connection w/ offer to pay medical or hospital expenses, sever. Admit the admission and exclude offer to pay hospital or medical expenses.
Psychiatrist-Patient Privilege
a. Did not exist at CL, nor does it exists under Fed rules.
b. Here, you have to apply fed rule 501 –
i. the Privilege of a W shall be governed by the principles of modern common law as they may be interpreted by the courts of the united states.
c. Note – Π’s suit against Δ arose under Fed Law, and the priv of Δ not to let Dr. testify under state law does not apply – has to be under modern common law
3rd Party Beneficiary Ks
a. Where you have a promissor entering into a K w/ promisee, sometimes they will reference a 3rd party. Where you see a 3rd party referred to in a K, you have to determine whether he’s an intended 3rd party Benny or an incidental Benny
i. Incidental Benny’s cannot enforce a K made in his/her behalf
ii. Intended Benny can enforce
Intent to Benefit Test
i. Ask: when promissor/ee entered into the K, was their main intent to benefit themselves rather than 3rd party? If so, then 3rd party is an incidental benny. However, if their main intent is to benefit the 3rd party and not themselves, then he’s an intended benny and can enforce AFTER his K rights vest.
Vesting of 3rd Party Beneficiary's K Rights
ii. Vesting occurs in 1 of 3 ways:
1. when 3rd party learns of the K and assents to it; or
2. where there’s been reliance by 3rd party; or
3. when 3rd party sues on the K.
iii. Remember, b/f an intended 3rd party can enforce a K made in his/her behalf, there MUSt be a valid K b/w promissor and promisee.
Assignment of K's
All Ks are assignable & delegable
a. Except
i. Personal Service Ks
ii. Long Term Requirements Ks
Notice Requirements for Gov't INitiated foreclosure sales and Procedural Due Process
When a legal proceeding is undertaken that may affect the rights of a party, that party is entitled to notice that is reasonably calculated to apprise interested parties of the action.

This would require the city to check the property records to determine if the property was subject to a mortgage or other liens and then send notice by mail (at a minimum) to all mortgage or lien holders.

Notice to the property owners and posted notice is not consitutitonally sufficient when the names and addresses of other interested parties are readily available by checking the recorded property information
Res Ipsa Loquitor
"The Thing Speaks For Itself."

Inference of negligence on part of Δ.

In order to establish a prima facie case – 2 requirements
1) The accident does not normally occur absent a showing of negligence on party of Δ; AND
2) The instrumentality causing the accident was w/in the Δ’s exclusive control

example: a car does not normally overturn in a ditch on a clear night absent a showing of negligence on part of driver.

A Motion for directed verdict will be denied but that doesn’t mean that Δ is liable. Jury will determine whether she is in fact negligent.
Right to XEX at Preliminary Hearings
XEX at a preliminary hearing is not required by the Confrontation Clause of the 6th Amendment.
Full Faith and Credit Clause
Each state shall give full faith and credit to the judgments and judicial proceedings of every other state.
Search Incident to Lawful Arrest
SITA
General Rule – SITA is limited to areas w/in the arrestee’s immediate control.

Based on Chimel v. CA, the arrest of a person in his own home does not automatically justify a warrantless search of the entire premises. Rather, the scope of a warrantless search based on SITA is limited to the area "w/in arrestee’s immediate control"

This phrase is generally construed to mean the area from which he might gain possession of a wepaon or destroy evidence.

Routine search of any room other than that in which the arrest occurs (as well as any closets, drawers, or other concealed areas) is not justified.

However, if the arrestee requests to obtain clothing before going to the police station, the police may accompany the individual to other parts of the residence and search adjoining areas such as closets and drawers where clothing may be found.

Search of AUTO incident to a lawful arrest is triggered following the arrest of the driver or passenger or auto, but not incident to the arrest of a person in his home. (NY v. Belton).
Circumstances where Judge makes factual determinations
Usually jury is trier of fact and judge makes rulings of law. Sometimes the judge, not jury, makes a factual determination in a case.
4 situations most commonly tested where judge makes fact determination
1) Dying Declaration – judge determines whether declarant views death as imminent
2) Biz Records Exception – Judge determines whether it was made in regularly course of biz activity.
3) Excited Utterance – defined as a statement that relates to a startling event, made while Declarant is under the stress or excitement caused by the event. Judge determines whether Declarant was under the stress of excitement
4) Statements or Admissions made by Co-Conspirator – judge determines whether there was a conspiracy b/f admitting the statement.
Establishment Clause Violation
3 Pronged Lemon Tes
To be valid, a Gov’t program or action must:
1) Have a secular purpose;
2) It’s primary effect neither advances nor inhibits religion; and
3) It does not produce excessive governmental entanglement w/ religion
Use and Derivative Use Immunity
S.Ct. has ruled that the grant of "use and derivative use" immunity is sufficient to extinguish the 5th Amendment privilege against self-incrimination
Attorney-Client Privilege Limitations
Limited to communications which the client expressly made confidential or which he could reasonably asume under the circumstances would be understood by the attorney as so intended.

It does NOT apply to items such as docs, letters, or other inscribed objects that existed prior to the attorney-client relationship
Reformaiton
When a writing does not reflect the true or complete agreement of the parties due to a mutual mistake of both parties, Court may reform the writing to express the parties true agreement
Merchant Buyer's Duties as to Rightfully Rejected Goods
Under UCC 2-603
After there has been a rightful rejection of goods, Buyer is under a duty to
(a) follow reasonable instructions received from the Seller with respect to the goods; and in the absence of such instrucitons,
(b) Make reasonable efforts to sell them for hte Seller's account.

When Buyer sells the goods, he's entitled to reimbursement out of the Seller's proceeds for reasonable expenses of caring for and selling them.
This amount should NOT exceed 10% of the Gross Proceeds.
Defendant's Burden of Proof in Criminal Cases
D generally has the burden of proviing affirmative defenses by a preponderance of the evidence.
Competency to Stand Trial v. Insanity Defense
Insanity-
Burden of Proof on D to present evidence of affirmative defenses (such as insanity and self-defense) by a prepinderance
Insanity is a defense to a criminal charge
D acquitted by reason of insanity cannot be retried and convicted, but may be hospitalized in certain sitautions

Competency-
Competency to stand trial depends on D's mental condition at the time of trial, whereas insanity turns on D's mental state at the time of the crime. It is not a defense, but rather is a bar to trial.
Prosecution bears the burden of proof of competency once the issue has been raised.
Tortious Assault
An actor is subject to liability to another for assault if:
1) he acts intending to cause a harmful or offensive contact with the perosn of hte other or a 3rd person, or an imminent apprehension of such a contact; and
2) the other is thereby put in such apprehension.
Criminal Assault v. Tortious Assault
Criminal Assault-
Maj view - attempted battery type: An intent to injure is required
Min view - Intent to frighten

Tortious Assualt-
Can be committed in wither of 2 ways:
1) where D acts intending to place P in apprehension of an imminent battery and P is placed in such apprehension; or
2) where D's conduct creates a substantial certainty that P will be placed in apprehension
Common Law Burglary
1) Breaking and
2) Entering
3) the dwelling house
4) of another
5) at night
6) with the intent to commit a larceny or felony therein
Attempted Larceny
1) intent to steal; and
2) a "substantial step" in the commission or attempted commission of the crime
Strict Products Liability
2 approaches to evaliuate design hazards

1) Consumer-Contemplation Test
A product is defectively dangerous if it is dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchased it w/ the ordinary knowledge common to the community as to the product's characteristics

2) Danger-Utility Test
A product is defective as designed if, but only if, the magnitude of the danger outweighs the utility of the product. Under this test, a product can be said to be defective if the danger-in-fact outweighs the utility of the product

However, a product may be deemed defective even though the harmful consequences do not outweigh the benefits, if there was a feasible way to design the product w/ less harmful consequences.
Purchase Money Mortgage
Purchase Money Mortgage takes priority over all other mortgages that were executed or recorded earlier in time
Anti-Lapse Statute
If a devisee or legatee predeceases Testator there is not necessarily a lapsed legacy. Designated relatives of the devisee or legatee, such as children, are entitled to take in his stead
Commercial Speech
regulations to regulate commercial speech must:
a) advance a substantial gov’t interest and
b) be no more restrictive than is necessary – must be narrowly tailored to further the gov’ts goals or objectives.
Inter-Governmental Relations
a) Federal Law takes precedence over conflicting state law because of the Preemption Doctrine of the Supremacy Clause
b) A state does not have the power to tax or regulate the federal gov’t, it’s agencies, or instrumentalities.
c) Congress does not have the power to commandeer, to force states to enforce or enact federal laws.
d)The 11th Am: state can’t be sued in Federal Court by its own citizens or citizens of another state unless it consents.
Common Law Conspiracy
2 requirements
1) Δ must have the specific intent to commit the target offense; and
2) An agreement b/w 2 or more individuals to commit the criminal offense. This is called the “plurality requirement.”
Withdrawal Defense
At CL, once the agreement is entered into, the crime was complete. Withdrawal is NO defense to Conspiracy

Jx's that require Overt Act:
Δ can w/d from the conspiracy only if he w/ds before the overt act has been committed.
Rights of a Life Tenant
a life tenant has the right to make ordinary use of the property during his lifetime.

A life tenant can mortgage, create liens, easements, or even convey the property, but they may NOT extend beyond the period of the life estate.

When a conveyance occurs, then an estate pur autre vie is created. An estate for the life of another. Such estates are deviseable and inheritable.
5 Covenants in a General Warranty Deed
a. Covenant of Seisin
b. Covenant of Right to Convey
c. Covenant against encumbrances: assuring there are no easements, liens, mortgages against title.
d. Covenant for quiet enjoyment
e. Covenant of warranty: a covenant where the grantor agrees to defend the grantee against claims of title brought by a 3rd party.