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874 Cards in this Set
- Front
- Back
Principal liable for agent's torts
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- Agency relationship
- Within scope of agency |
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Agency relationship
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- Assent (informal agreement)
- Benefit principal - Control by the principal (supervise) |
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Sub-agent and borrowed agent
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- No control for both
- No agreement for sub-agent |
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Independent contractor for tort liability (agency)
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- Principal is NL
- Exceptions: * Ultra-hazadous activity * Estoppel: hold-out as agent |
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Scope of agency
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- Balancing test
* Whether A intended to benefit P * Detour or frolic * Description of the agency |
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Principal's liability for intentional tort of agent
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- Not liable b/c not w/i scope
- Liable if: * Natural to use force (e.g. guard) * Authorization by P * A intended to benefit P |
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Principal's liability for agent's contract
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- Principal is L if authorized
* Acutal, express authorization * Actual, implied authorization * Apparent authority * Ratification - If P is L, A is NL personally - A is L for unauthorized K - 3P may elect either if A did not disclose: * Identity of P * Existence of agency |
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Actual and express authorization (agency)
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- No need to be written
- May be private - Land agency: requires writing - Authorization is narrowly construed - Revocation of authorization: * by either party * if principal is dead * if principal is incapacitated - Durable power of attorney: * Not terminate when principal is incapacitated * Unless otherwise provided in the power |
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Actual and implied authority in agency
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- Necessary to carry out agency objective
- Customary (e.g. lawyer) - Prior dealing |
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Apparent authority in agency
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- No actual authorization
- P did something to cloak authority - 3P reasonably relied - Reliance not reasonable if dealing with a partner of a partnership for first time |
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Agent's duty to principal
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- Obey instructions
- Duty of care - Duty of loyalty * No self-dealing * Not usurp principal opportunity * Not secret profit - Remedy: * Damage * Disgorge benefit |
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Ratification by principal (agency)
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- P must know the material aspect of act
- P must accept the benefits - P must ratify without change - If change, no ratification |
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Partnership (requirements)
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- 2 or more person
- Carrying out business for profit - No writing or registration necessary - Key: contribution & profit sharing - Partners have unlimited liability |
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Parnter's liability for partnership debts
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- Partner is each other's agent
- Partner L for: * Authorized contract * Tort w/i scope of partnership business - Estoppel: * L if stating partnership w/ another * even no actual partnership exists |
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Partner's liability for partnership terminates if ...
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- All liability that arises until death and notice
- All acts to wind up existing business - All new business during wind-up until notice - No pre-existing debt prior to joining - Capital contribution upon joining - All liability after quitting until notice - Note: the above are time that liability arises - Notice requirement * Actual notice to known creditors * Publication notice to potential creditors |
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Partner's claim to partnership property interest
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- No right in specific partnership property
* Property under partnership's name * Requires authorization to dispose - Right to surplus and profit (transferrable) - Right to management control (can't transfer) - No right to salary except winding up |
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Partner's share in control, profit, and loss
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- Equal vote for management
- Without agreement: * Equal share of profit * Same share in loss as in profit |
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Partnership termination
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- Dissolves upon material change:
* Partner dead * Partner withdraws - Winding up: time from dissolve to termination - Termination: * Pay outside creditors * Pay inside creditors * Pay capital contributions * If anything left, pay surplus to partners |
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Limited Liability Partnership
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- Requires registration stating general partners
- Without registration: general partnership - Limited partner: limited liability; limited control - General partner: all liability; all control |
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Registered LLP
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- Only for professional partnership
- Requires registration stating profession - All partners: limited liability |
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Limited Liability Company (LLC)
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- Requires
* registration of articles of organization * publish summary for 6 weeks on 2 papers - Limited tax (through) - Members may manage through manager - Members have limited liability - Share transfer need unanimous consent - Terminate upon majority vote |
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Partners' duty to each other
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- Fiduciary duty
* No self dealing * No secret profit * No usurp of partnership opportunity - Action of accounting to: * claim damage * disgorge unjuct enrichment |
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Recognition of other state's judgments
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- Full faith and credit clause
* Court has jurisdiction * Judgment is final * Judgment is on merits - Final: not modifiable (future support) - Merit: * Default judgment * Consent judgment - No defense to full faith and credit: * Good: judgment is penal * Good: judgment has extrinsic fraud * Bad: mistakes of judge * Bad: inconsistent judgment * Bad: against public policy |
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Recognition of foreign country judgment
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- Based on principle of comity
- Fair procedure - Jurisdiction is fair |
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Choice of laws
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- Constitutional standard
- Test: government interest test (Babcock) - Traditional: vested right test - Defense: * Law is procedural (apply forum law) * Law is penal * Law is against public policy |
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Constitutional standard for choice of laws
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- Applicable provision
* Due process * Full faith and credit - Test: * Substantial contact with the state * Legitimate interest to apply the law - No compare of interest - Fail if only connection is: * move to state afterwards * the state is forum state |
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Governmental interest test (choice of law)
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- Babcock
* List facts * List state and laws * Consider policies of laws * Relate facts to policies * Balance which policy most important - Types: * No actual conflict: both parties' domicile * Actual conflict: forum law * Disinterested forum: forum law/better law * Non-provided for: forum law |
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Traditional vested right test (choice of law)
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- Territorial
- Where cause of action accrues * Place of accident * Place of execution - Replaced by government interest test |
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Tort choice of law
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- Babcock/Neumeier: distribution rules
* If both party same state: that state * If otherwise: forum law * [Each state protects own party] * [Non-provided for case] - Action rules: place of action |
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Contract choice of law
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- Any law chosen by parties to construe
- Law chosen regarding validity: * Not against public policy of state * No fraud, duress, coersion * Substantial connection with state * > $250,000: may choose NY * > $1mm: may choose NY; good forum - No law chosen: Babcock approach - Insurance policy: place written |
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Property choice of law
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- Situs of property for RE
- Place of property for personal property - Decedent domicile for intestate |
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Marriage choice of law
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- Marriage is valid if:
* At place of marriage, valid * If invalid due to technical: valid in NY - Divorce: P's domicile |
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Choice of law: procedural and substantive
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- Procedural:
* Statute of limitations * Burden of proof - Substantive * Statute of fraud * Comparative/contributory negligence * Direct suit statute: NY * contribution and indemnification * Parol evidence rule |
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Proof of foreign law
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- Judicial notice of other state law
- Foreign country law: * Prove like facts * If not proved: use NY law |
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NY jurisdiction for matrimonial actions
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- Subject matter: Supreme Court
- In res jurisdiction for marital status: * Either spouse domiciled in NY - Personal jurisdiction for monetary support: * P is domiciled in NY, and 1 of 4 * matrimonial domicile in NY * grounds of action arising in NY * under agreement executed in NY * under laws of NY - Only personal service if w/o court approval - Durational residency requirement for merit |
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Durational residency requirement for matrimonial actions
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- 0 residency:
* Both party domiciled in NY at filing * Grounds arising in NY - 1 year residency, 1 of 3: * Married in NY * Matrimonial domicile in NY * Grounds arising in NY - 2 year residency, no more requirement |
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Jurisdictional requirement to recognize out-state divorce
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- Subject matter jurisdiction of rendering court:
* One spouse must domicile in the state - Personal jurisdiction for status: * P must domicile in the state * D not estopped - Persons estopped may not challenge: * Rendering court had PJ over the person * The person meaningfully participated in action * The person in privity to P (i.e. children) * The person remarried in reliance on divorce - Support and alimony: PJ over D - Child custody: child's home state * Child lives with one parent for 6m * Prior to filing of divorce - In support/custody, the rendering court: * "continuous and exclusive jurisdiction" * Provided: one of child/parent lives there - Divisible divorce doctrine |
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Professional responsibility for matrimonial actions
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- No contingency fees
- No non-refundable retainer - Writing fee engagement letter * Signed by both lawyer and client * Right to elect for fee dispute arbitration * Periodical billing at 60 days * Inform rights/duties before fee agreement |
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PR: ways to discipline lawyers
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- Admonition
- Private or public censure - Suspension - Disbar - Discipline in one state: * Not automatically in another state * But recognize comity - Any state of admission may discipline - Principal place of practice rule - Principal effect rule |
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PR: temporary out-state practice
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- Association with local lawyer
- Admitted pro hac vice - Arbiration or mediation - Reasonably related to in-state practice - Multi-office firms: * Letterhead must show admitted state |
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PR: admission to bar
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- Requirement:
* ABA graduate * 1y school + 3y supervised study * MPRE + Bar exam - Non-exam requirement: * ABA law school graduate * Admitted to a state * State has reciprocal law with NY * Practiced in 5/7 years - Applicant has duty of full disclosure - Applicant has burden of proof - Non-applicant: * may pairse applicant * must report moral turpitude - Register every 2 years |
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PR: regulation of lawyers
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- Court of Appeals with its agencies
- Self-regulated * Must report violations * Must be available to testify - No duty: representing another lawyer |
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PR: client decisions
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- Commencement
- Jury or bench - Settlement - Appeal - Take stand in criminal case |
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PR: lawyer decisions
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- Reasonable adjournment
- Discovery strategy - Incapacitated client: * Dimished capacity * Risk of substantial harm * Client cannot adequately act |
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PR: must withdraw situations
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- Mentally/physically incompetent
- Know that service leads to crime - Client fires lawyer - Client is harassing others |
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PR: may withdraw situations
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- Claim is frivolous or meritless
- Reasonable belief of fraud/crime - Client defaults on fees - Non-cooperating co-counsel - Service likely leads to violation of RPC |
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PR: confidentiality
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- Must keep damaging information confidential
- Must disclose: perjury on court - May disclose: * Required by law or court order * Substantial likelihood to death/serious injury * Authorized for client's benefit * Prevent crime * Obtaining ethical advice |
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PR: Curing incompetence
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- Associate with competent lawyer
- Research and become competent - Competence: * Mental/physical * Knowledge of substantive law * Time |
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PR: conflict of interest
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- Requires:
* Client's written informed consent * Not prohibited by law * Ability of competent representation - Conflict w/ former client: * In the same case * Has confidential info re same case - May not represent unless: * Confidential info publised * Client written informed consent - Conflict w/ current client: never good - Intentionally conflicting out lawyers: * Lawyer not conflicted out |
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PR: firm names
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- Trade name not allowed
- Dead person allowed if worked here - Suspended: may stay - Disbarred: may not stay - Full time public office: not stay - Domain name: allowed * Conspicuous firm name * Not using domain name in practice * Not misleading (imply results) |
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PR: Advertisement
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- Front page: 'Attorney advertising'
- Principle address - Phone number - Allowed content: * Education * Time admitted * Admitted state and organization * Public office held * Concentrated in ... * Fluent language * Client name w/ consent * Bona fide professional rating * Fee arrangement (binding) * Acceptable credit arrangement - Allowed if can prove at publish: * Comparison with other firms * Expectation of outcome * Client endorsement (consent) * 'past result don't guarantee outcome' - Retain record: * 1y for website * 3y for other |
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PR: solicitation
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- In person solicitation prohibited
- Exception: * Non-pecuniary * Non-real time * Relative * Close friends * Former client * Current client - No solicitation if: * misleading * recipient refuse * require moving to another place * target physical/mentally unstable * coercion, harassment - unsolicited advice provided: not engage |
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PR: targeted mail
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- May target recipient
- 'Attorney advertising' - Source of identity and address - 'Do not sign' if retainer enclosed - For personal injury/wrongful death: - Not w/i 30d normally - Not w/i 15d if urgent filing needed - File with Grievance Committee |
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PR: specialty
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- May advertise specialty only if:
* Certifying org recognized by ABA/NY * Disclose certifying org * 'certification not required' * Certified not necessarily better |
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PR: Dealing with Client
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- No sex after engagement
- May continue sex - No sex for domestic relations case - No imputation - May deal in ordinary course: * Bank clients * Dealer clients - May deal only if: * Written informing terms * Advising to seek other counsel * Terms are fair - May not lend to client - May advance filing fee - May pay filing fee for poor - No media right until case close |
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PR: Fee engagement
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- If > 3,000: required
- Exception: * Former client * Current client * Similar service - Writing: * Scope of services * Basis of fees * Calculations * Billing practices - Client may ratify: * Even if misconduct * Misconduct not inducing ratification * Must know client's right * Must in writing - No maximum/minimum fee - Max for medical malpractice - Min: after settling expense schedule |
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PR: client property / money
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- Property: warehouse or garage
- Money: * Client trust account in NY * Separate operating account * Prompt withdrawal after notice * Small account interest to IOTA * Overdrawn notice enabled * Cannot put in own money * Can pay for account maintenance |
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PR: communication with parties
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- No ex parte talk with juror
- De minimis ex parte with judge - May talk ex parte with witnesses - No talk with opponent directly |
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PR: representing organizations
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- Make sure representing org, not:
* Employees * Officers - Reporting requirement: * Goes up the ladder to board * Report outside involving securities * Minimize disclosure * Protecting client org |
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PR: zealous representation
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- Civil: no frivolous claims
- Crim: make prove every element |
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PR: vicarious liability
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- Junior associate:
* must abide by code * may follow order if arguable - Senior lawyer: * L if instructed junior lawyer/agent * Known and did not report |
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PR: adverse authority / facts
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- Adverse authority: must disclose
- Adverse facts: * no need to disclose * disclose if ex parte - Prosecutor: * disclose exculpatory evidence * only prosecute with probable cause |
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PR: fee sharing
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- No fee sharing with non-lawyer
- May share office with non-lawyer: * Clearly separate * No coercion to use the lawyer - With lawyer: * Total fee reasonable * Client consent * Per amount of service * Any % if jointly responsible - No referal fees to other lawyer |
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PR: Accepting/rejecting cases
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- May reject any case before engagement
- Should (not must) accept: * Oppressed * Defenseless * Fair share of pro bono work |
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PR: non-competition for lawyers
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- Not allowed
- Allowed for retirement benefit - Allowed for sale of practice |
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PR: Trial publicity
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- Only:
* Dry facts * Info necessary to arrest suspect * Informing danger * accusation w/ disclaimer - No publicity: * Guilty plea * Inadmissible evidence * Probable outcome * Character, reputation, etc * ID of witness |
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PR: Testify for client
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- Not allowed, except
* Formality * About legal service * Uncontested matter |
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PR: Contingency fee
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- Not allowed for crim
- Not allowed for domestic relations |
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PR: Fee arbitration
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- 1,000 - 50,000
- At client's election - Not for criminal case - Not for malpractice |
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Trust types
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- Express trust
* Private * Charitable - Totten trust - Pour-over trust - Joint account with survivorship - Uniform Transfer to Minors Act - Honorary trust * Pet trust * Cemetery trust - Resulting trust - Purchase Money Resulting Trust - Constructive trust |
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Requirements for express private trust
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- Settlor (18+; contract ability)
- Delivery (titled document: transferred formally) - Property (settlor has title not expectation) - Intent (wish insufficient) - Trustee - Beneficiary - For lawful purposes - Signed by settlor (notarized or 2 witnesses) |
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Appointment of trustee (qualificatins)
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- Failure to appoint a trustee:
* Trust does not fail * Court appoints a trustee - Inter vivos (lifetime) trust: anyone - Testamentary under court supervision: * Generally, anyone * Not under 18 * Not judicially declared incapacitated * Not convicted felon * Not dishonest, drunken, etc - Non-NY-resident trustee * Must be related to settlor * Must have a NY co-fiduciary |
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Express trust beneficiary
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- Private trust
* Definite * Ascertainable * 'heir' and 'next of kin': fine - Charitable trust * Indefinite * A sufficiently large group * May be 'masses' for relatives - May not be a non-person except * Pet * Cemetery |
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Express trust purposes
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- Private Trust
* Not to commit crime * Not to destroy property * Not violating public policy - Public Policy - marriage * Not compel marriage * Not promote divorce * May screen ethnic/religion * May support widow until remarry - Charitable trust: charitable purpose * Education * Health * Religion |
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Express trust intent
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- Precatory language is insufficient
- Must create duties in trustee - Beneficiary may enforce - Attorney General represents charitable trust * AG is necessary party to suit * Donor and AG may enforce charitable trust |
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Pet trust
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- Pet trust is allowed
- Term: life of pet (not 21 years) - Enforcement: * Person named in trust * Person appointed by court |
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Cemetery trust
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- Deemd charitable trust
- May last forever |
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Trust RAP Issues
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- Private trust:
* RAP for interests * RAP for spendthrift restrictions - Charitable trust: no RAP issue - Cemetery trust: no RAP issue |
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Express charitable trust
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- Not subject to RAP
- For indefinite large group - For charitable purposes - Enforced by Attorney General - Cy pres doctrine to reform * 'As nearly as possible' * Match settlor's intent |
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Totten Trust
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- Created by depositor 'ITF' beneficiary
- No 'magic words' necessary - Depositor may deposit/withdraw freely - Creditor may resort to account - Beneficiary: no claim until depositor dies - Upon death: goes to living beneficiary - Revocation: * Withdraw all money * Formal revocation WB FIND * Formal will WB FIND * Death of beneficiary before depositor - WB FIND: * Writing * Beneficiary * Financial Institution * Notarized * Delivery to account bank |
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Joint account with survivorship
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- Upon death, goes to suriving holder
- Creditors cannot reach upon death - Each holds 1/2 - Defeating joing account: * Clear and convincing evidence * Survivorship not intended * Merely for convenience - If one holder transfers money w/ bad faith: * Account is severed * Creditor may resort to half amount |
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Uniform Transfer to Minors Act (UTMA)
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- Purpose
* Avoid guardianship proceeding * Avoid trust * Gift tax exclusion of $13,000 - Must be explicit about UTMA - Made to guardian - The guardian of minor: * Prudent investment * Use money for minor * Give to minor upon turning 21 * (prior to 97, upon turning 18) - Guardian is not owner (minor is) - Not a trust - Gift exclusion NA if donor is guardian |
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Pour-over trust
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- Will may make gift to a revocable trust
- Easier management and change - Revocable trust * may be partially funded or unfunded * may be created by other persons * must exist at or prior to executing will - Life insurance may go to trust * Revocable trust existing now * Trust created in will * Beneficiary: to trustee |
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Revocable trust
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- Presumption: irrevocable
- Settlor must explicitly makes it revocable - Settlor may not be both: * sole trustee * sole beneficiary - Must exist at least one additional: * trustee * beneficiary - Potential purpose: * management * avoid probate * provide for incapacity - No tax benefit if revocable |
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Modification of trust
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- Modification by settlor: c.f. revocable
- For others: settlor intent is more important - If conditions change, may modify: * Could not achieve the purpose * Designated entity no longer exists - Cy pres doctrine: match intent - Trustee/beneficiary has standing? - Court may authorize invasions of principal |
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Termination of trust
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Not revocable by presumption
Termination by settlor with consent: - Requires consent of all beneficiaries - Incapacitated cannot give consent - Infant cannot give consent - 'heirs' no need to consent - Consent not required for fetus Merge: - not if there is any potential beneficiary - only if sole trustee is sole beneficiary |
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Resulting trust
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- Situations:
* Trust fails for indefiniteness * Trust fails for non-human beneficiary - PMRT * One pays, title in non-relative * Majority: PMRT, trustee must return * NY: No PMRT, trustee no need to return - Effect of PMRT * Constructive trust if trustee promised * Clear and convincing evidence required |
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Constructive trust
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- Equitable remedy for fraud, etc
- Holder's duty: transfer to beneficiary - Example: * Slayer of testator * Default on joint will contract * Promise to induce PMRT |
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Spendthrift rules regarding trust
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- Majority: presumed no spendthrift rules
- NY: presumed for income interests - Income interest: * Spendthrift rule * may be explicitly excluded by settlor - Beneficiary of principal * No spendthrift rule * may be explicitly provided by settlor - Rule: not alienable by interest holder - Exceptions: * necessity creditor * alimony, child support * federal IRS * excess of living and education * 10% mandatory lien for all creditors - NA to settlor's retained interest, if any |
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Trustee's power
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- Fiduciary Powers Act
- Almost anything to dispose res - Investment power - Trustee may not: * Self-dealing * Borrow on behalf of trust * Continue business put in trust |
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Trustee's investment power
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- Uniform Prudent Investors Act (UPIA)
- Portfolio theory - Not reviewed with hindsight - Maximize total return as the goal - Not evaluate individual investment - May make adjustment for fairness |
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Trustee's self dealing
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- Trustee may not:
* Buy trust property * Sell property to trust * Borrow from trust * Lend to trust * Use confidential information from trust * By corporate trustee's shares for trust - Trustee must: * Separate personal and trust property * Earmark trust property |
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Trustee's comingling of assets
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- Gains: go to trust
- Losses: borne by trustee |
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Remedy for trustee self-dealing
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- No inquiry about good faith
- No inqury about reasonableness - Remove and replace trustee - Damages - Ratify if advantageous (Beneficiary has standing) |
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Trust and 3rd party re trustee' self-dealing
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- Trust has no resort to BFP 3rd party
- Not BFP if both: * Know trustee's capacity as trustee * Know trustee is self-dealing - Treated as trustee: * Trustee's relative * Trustee's business (control, partner, etc) |
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Contract by trustee
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If trustee signs in trustee's name:
- trust is liable - trustee is not personally liable If trustee signs in personal capacity: - trustee is liable - reimbursement if: * within trustee's power * signed in ordinary administration |
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Tort by trustee
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- Trustee L for any tort by:
* trustee * trustee's agent - Trustee may seek reimbursement if: * It is in trustee's power * It is not the personal fault of trustee - No exception if not able to reimburse - Trustee may buy insurance - Trust pays for the insurance |
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Exculpatory provisions for trustee
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- Testamentary: void for public policy
- Inter vivos: allowed |
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Intestate distribution
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- Spouse takes all
- Spouse and issues: * Spouse take $50k + 1/2 of remaining * Issues share 1/2 of remaining - Issues takes all if no spouse - No issues/spouse: parent - No parent: siblings - Grandparents - Issue of G.Parent down to same level as T - G.G.Children of G.Parents - Eschew to state |
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Issues take by representation or per capita in each generation
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- Seek to first level with living issue
- Divide by total threads (incl. dead) - Living issue take one share each - Dead shares combined - Drop to the next level w/ living issue of dead - Circle - Effect: on each level, equal share - Even if will says 'per stirpes to children': * Children gets per stirpes * Grandchildren on: per capita |
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Effect of adoption re inheritance
|
- Adopted children:
* full rights in adopting family * no right in birth family - Children adopted by new spouse of parent: * full right via each parent * full right via adopting spouse - Children has birth and adoptive relations: * Use birth relations * Use adoptive relation if adopted by decedent |
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Non-marital children re inheritance
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- Full right in biology mother's family
- Full right in biology father's family if: * Father and mother marries afterwards * Decree of filiation establishing paternity * Notarized statement in Putative Father Reg * Clear and convincing evidence of paternity - Clear and convincing evidence: * DNA test * Open and notorious acknowledgment * Mere support is not enough |
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Situations spouse loses inheritance / elective share
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- Divorce valid in NY
- Invalid divorce by surviving spouse - Separation decree ag. surviving spouse - Marriage is incestuous or bigamous - Abandon by surviving spouse - Lack of support by surviving spouse [DISMAL] |
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Disclaimer by distributee or will beneficiary
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- Notarized writing
- Separate affidavit of no consideration - Irrevocable - Filed with Surrogate Court w/i 9m: * Death of decedent * Beneficiary becomes 21 - Effect: * Disclaimant predeceased decedent * Not disrupting distribution * Otherwise: immediately after |
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Simultaneous deaths
|
- Revised Uniform Simultaneous Death Act
- Clear and convincing evidence - Died 5d (120h) apart - Effect if insufficient evidence: * B dies first when distributing A's estate * A dies first when distributing B's estate * AB joint account: each has 1/2 |
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Execution requirement for will
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- T must be 18+
- Signed by T - At the end thereof - In presence of 2 witnesses - Witnesses both sign - Completed w/i 30d after W1 signed - Publication |
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Signing of will
|
- T may sign by proxy
* Proxy sign directed by and in presence of T * Proxy not witness * Proxy sign (essential) * Proxy provide address (non-essential) - T signs at the end * Everything after signature: void * If essential provision after signature: will void - T signs in the presence of witness: * W no need in presence of each other * T must sign or acknowledge before W * W no need to sign when T signs/acknowledges |
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Interested witnesses for will execution
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- Signing by interested witness: will still valid
- Interested witness loses gift, except: * 2 other non-interested witness signed * lesser of will gift or intestate share |
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Proof of due execution of will
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- Burden on proponent
- Requires: testimonies of 2W - If 1W unavailable, testimony of 1W fine - If both unavailable, must prove: * signature of T * signature of 1W - If self-proving: may go directly to probate - If self-proving and contest: need to prove |
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Attestation clause / affidavit for will witnesses
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- Attesting clause:
* Prima facie evidence * Do not replace testimony * May be used to impeach * May be used if W is hostile - Affidavit replaces testimony: * W signs in front of attorney * W under oath * Reciting 7-point execution - Neither is required by law |
|
Holographic will and nuncupative will
|
- Holographic will: all in handwriting of T
- Nuncupative will: oral will - Both invalid in NY except: * Soldier in war until 1 year after discharge * Marine at sea until 3 years after discharge * recognized under Foreign Wills Act |
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Foreign Wills Act
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- Foreign wills are valid if:
* Valid under NY law * Valid under place of execution law * Valid under T's domicile law (death/execution) |
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Lapse of gifts in will
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- If beneficiary dies before T: lapses
- Anti-lapse saves gift if: * Beneficiary has issue * Beneficiary is T's issue/brother/sister - Gifts then goes to Beneficiary's issue - By representation at each generation - Dead beneficiary's will: irrelevant - Will may override anti-lapse statute - It also applies to disclaimer situation - Specifically named adopted-out child: applies - Lapsed gifts goes to: * Residuary estate * Other beneficiaries of residuary |
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Revocation of will
|
- Explicit revocation:
* Revocation with 7-point formality * Physical act with intent to revoke * Physical act of another: 4 persons - Implicit revocation: * New will with 7-point formality * If consistent: no revocation but codicil - Presumed revocation with intent: * Cannot find will last seen in T's possession * Will damaged last seen in T's possession - Presumed no revocation if: * Will last seen in beneficiary's possession * Beneficiary adversely affected |
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Modification of will
|
- New will with 7-point formality
- Codicil with 7-point formality - Partial change with 7-point formality - short of 7-point formality: no change - Examples: * cross words with T's initials * change amounts with T's initials |
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Reference to extrinsic writing and acts in T's will
|
- Documents: allowed in majority; not NY
* Preexisting * Identified * Intention to incorporate - NY requires: same 7-point formality - Acts of independent significance: * Good for non-titled property * Not good for titled property |
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Changes of marital status after execution of will (effects on gifts)
|
- Marry: will still valid
- Effect: spouse may gain rights - Divorce/anulment/separation: * Requires formal decree * Separation agreement not good * File for divorce not good - Effects: * Terminates fiduciary appointment * Terminates gifts * Terminates life insurance benefit * Terminates Totten trust * As if spouse predeceased T * Not terminate gifts to spouse's issue * Not terminate custody * NO anti-lapse for spouse - Remarry: restored |
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New children after execution of will (effects on gifts)
|
- Pretermitted children
* Born or adopted after execution of will * Living or in gestation at T's death * Not provided for in settlement * Not named or provided for in will - T has >=1 child, pretermitted child gets: * No gift to child: 0 * Gift to child: equal share * Norminal gift to child: intestate share - T has 0 child, pretermitted child gets: * Intestate share |
|
Revival of wills after revocation
|
- No automatic revival
- Revival requires: * Re-execution with 7-point formality * Codicil to republish with 7-point formality - Dependent Relative Revocation: * T had mistake in law re revival * Similar: non-revocation and revival |
|
Proof of content with non-production of will
|
- Burden on will proponent
- Prove: * Due execution of will * DRR or over presumption of non-production * Specific terms of the will |
|
Incapacity of testator
|
- Capacity: less than for other civil acts
* Understand the nature of act (will) * Know the property (nature and value) * Know natural ojbects of will (beneficiary) * Understand disposition of gifts - Lucid interval is sufficient - Insane delution: no capacity * Otherwise normal person * Belief in supposed facts * Against all evidence, probabilty, control |
|
Ambiguity in will
|
- Latent: requires extrinsic evidence
- Patent: facial mistakes - Extrinsic evidence allowed: * Facts/circumstances: for both * T's statement to preparer: for both * T's statement of intent to 3P: for latent |
|
Undue influence in making will
|
- Challenger has burden to prove:
* Existence and exertion of influence * Effect of influence on T * But for influence, will would be different - Insufficient: * Opportunity * Susceptibility * Inequality - Sufficient: * Gifts made to confident relaitonship * Beneficiary prepared the will - Automatic inquiry for gift to attorney - Attorney must inform if named executor: * In writing signed by T * Witnessed by 2 * Anyone, even nonlawyer, may be executor * Executor receives statutory compensation * Executor names attorney, who get fees - If fail to inform: 1/2 statutory fees |
|
Conditional wills, if CP not satisfied
|
- CP is valid, and will not enforceable
- CP is to show motive, will still enforceable |
|
Joint wills contract
|
- 2 persons share will with 7-point formality
* Deemed joint will only * Is contract only by express provisions - One party fail to honor contract: * Probate according to his later will * Constructive trust for first will beneficiary |
|
Advancement; satsifaction of legacies
|
- Majority: deemed advancement
- NY: not advancement or satisfaction - Exception: * Contemporaneous writing * Signed by donor or donee |
|
Abatement of will
|
- Following sequence:
* Creditors * Specific gifts * Demonstrative legacy * General legacy * Residuary * Intestate estate - Pro rata for demonstrative/general legacy |
|
Ademption of will
|
- Only for specific gifts
- Reason of destruction: irrelevant - Exceptions: * Insurance for the gift paid after death * Executory K for the gift paid after death * Proceeds traceable to guardian disposed gifts - Specific source for demonstrative legacy: * Demonstrative only * If not exist: go to other sources |
|
Share certificate gifts in will
|
- Public company: general gifts
* Exception: 'my ... stock' - Closed company: specific gifts - Share split: treated as specific - Shares changed in form: not destroyed |
|
Elective share of spouse
|
- $50,000 or 1/3 of elective share assets
- Elective share assets: * Net probate estate (af/t debt, b/f tax) * Testamentary substitutes - Other beneficiary must contribute if deficient: * Beneficiary of will * Beneficiary of testamentary subs * Intestate distributees - No need to return gifts; cash is fine |
|
Testamentary Substitutes
|
- Totten trust for others
- Survivorship interests - Non-qualified employee benefits - 1/2 of qualified employee benefits - Irrevocable in marriage retain life estate a/f 92 - Revocable transfer anytime - Gifts within 1 year of death in excess of $13k - US bonds - Paid on Death arrangements - Presently exercisable, general POA |
|
Not Testamentary Substitutes
|
- Life insurance
- Irrevocable transfer pre-marriage - Irrevocable retain life estate in marriage pre 92 - 1/2 of qualified employee benefits - Gifts outside 1 year of death - Gifts less than $13K |
|
Testamentary substitutes (value)
|
- Full value
- Survivorship interest with 3rd party * 1/2 if prior to marriage * all if post marriage * consideration furnished as proved - Survivorship interest with spouse: 1/2 |
|
Elective share elections
|
- File w/ surrogate court
- w/i 6m after letter is issued by court - Personal to the spouse: * Administrator/executor cannot elect * Guardian/custodian may elect - Waiver: in writing notarized - Pre or post marriage: both allowed - Waiving 'all rights in estate' * waives elective share * does not waive specific gifts - No elective share if DISMAL |
|
Elective share choice of law
|
- T domiciled in NY: NY law
- Will chooses NY: NY law for RE in NY - RE in other state: ancillary proceeding - probate in other state: NY ancillary proceeding |
|
Non-probate assets
|
- Property transfers by operation of law
* Joint tenancy with survivorship * Joint account * Totten trust - Property transfers by contract * Life insurance * Employee benefits - Property in trust - Property held in POA |
|
Power of appointment (types)
|
- Presently exercisable POA
- Testamentary POA: exercise in will - General POA: may designate any one - Special POA: only within limit |
|
Exercise of POA
|
- Testamentary: in will
* Residuary clause: sufficient * Not referring POA: sufficient * Donor may explicitly require reference - Presently exercisable: * may also exercise in will * Unless donor specifically prohibits - Failure to exercise, goes to: * Beneficiary of donee's will * Residuary of donee's will * Intestacy distributee of donee |
|
RAP and POA
|
- Testamentary or Special POA
* Validity of POA: execution from creation * Validity of interest: vest from creation * Second look * Reform age limit to 21 * Consider spendthrift - General, presently exercisable POA: * Validity of POA: acquisition from creation * Validity of interest: vest from exercise * No second look * Consider spendthrift * Reform age limit to 21 |
|
Health care proxy
|
- Power of attorney granted to person:
* Effective when incapacitated * Decision on treatment - Requirements: * Signed by principal * Writing * Witnessed by 2 adults * Recite: grantor is free from duress |
|
Living will
|
- Show desire regarding treatment:
* Terminally ill * Vegetative state * Artificial life support * Artificial nutrition * Relieving pain - Right to refuse medical treatment: good - Physician assisted suicide: unconstitutional |
|
Lawyer malpractice in preparing will
|
- NL to beneficiary: no privity
- L to estate for bad planning advice |
|
Class gifts in will
|
- Rule of convenience:
* Closes if any person may claim * Including child in gestation - Goes to surviving member at death - Anti-lapse also applies - Adopted out children is not w/i class |
|
Negative bequeaths in will
|
- Common law: not valid
- NY: valid - Treated as if predeceased - Anti-lapse still applies |
|
Specific gifts of encumbered property
|
- Common law: right to exornerate
- NY: exornerate only with specific instruction - General direction of paying debt: insufficient |
|
Elective Share Trust
|
- Good if T died prior to 94
* Outright >= $50,000 * Principal in trust >= 1/3 * Spouse has life estate - Now: not good * Kill trust if outright gift < elective share * Not if outright gift >= elective share |
|
Exempted property before will distribution
|
- $92,500 in total
- $25,000 for vehicle - $20,000 for furniture - $25,000 in cash * Creditor cannot touch * Funeral can touch - $20,000 for farm machine; animal - $2,500 for books etc |
|
Donee's creditor and POA
|
- General, presently exercisable POA: can
- Specific or testamentary: cannot, except: * Donee gives to her estate * Donee is donor |
|
Mistake in will
|
- No extrinsic evidence may come in
- T presumed to: * Have read the will * Understand the consequences |
|
No-contest provisions in will
|
- C/L: not forefeit if:
* good faith * probable cause - NY: forefeit, except: * Contest jurisdiction * Construe will * Forgery * Later will exists * Guardian/custodian contest - Safe harbor: preliminary discovery - T may explicitly exclude safe-harbor |
|
NY subject matter jurisdiction
|
Supreme Court
- general subject matter jurisdiction * No limit in amount * Injunction - exclusive jurisdiction: * Matrimonial status * Article 78 proceedings * Declaratory judgment Surrogate Court: probate will Court of claims exclusive jurisdiction: monetary claims against the State |
|
NY requirements for personal jurisdiction
|
- Proper commencement of action
- Proper service of process - Basis of jurisdiction over D |
|
NY commencement of action
|
- Filing process with court clerk
* Supreme Court: county clerk * Summons and complaints * Summons and notice - complete service within 120 days of filing - If cannot complete, move to extend: * good cause of delay * Justice requires |
|
NY notice of complaint content
|
- Brief description of cause of action
- Remedy sought - amount of damages required - For tort case, no need to specify amount |
|
NY service of process on natural persons
|
- Servicer: NY resident, 18+, nonparty
- Personal delivery * Leave to D (each D a copy) * May leave in vicinity if D refuses * Complete upon delivery - Leave and mail * Leave to suitable age/discretion person * Mail (no need certified mail) * Completed within 20d of each other * Complete 10d after filing proof - Nail and mail * Due diligence * Nail (tape) * Mail (no need of certified mail) * Completed within 20d of each other * Complete 10d after filing proof - Tape/Leave: * Actual dwelling * Actual place of business * Last known dwelling * Actual place of business |
|
NY service on corporations
|
- Personal delivery to:
* Officer * Director * Agent for service of process * Managing agent w/ supervising - Domestic/licensed foreign corporation: * Personal delivery * 2 copies of process * Secretary of State * Secretary will mail to D Corp. - Foreign unlicensed corporation * 1 copy personal delivery to Secretary * 1 copy certified mail to D corp |
|
NY service on out-of-state owner or driver of cars
|
- ordinary methods are allowed
- Special: * 1 copy personal delivery to Secretary * 1 copy certified mail to D |
|
NY special service methods
|
- Expedient service of process
* Ex parte motion to court * With court leave, any reasonable way - Mail and acknowledgement: * 1 copy of process * 2 acknowledge forms signed * 1 envelop prepaid (no need certify) * Mail to D (individual or corp) - Not to infants/incapacitated - D must sign and return - Complete upon mailing return - If D do not cooperate: pay expense |
|
NY service on out-of-state party
|
- Use any NY allowed method
- Servicer 1 of 3: * NY 18+ resident * Authorized persons in service jurisdiction * Attorney in service jurisdiction |
|
NY service on infants (minors)
|
- Service to 1 of 4:
* Parents * Guardians * Persons with legal custody * Adult spouse of infant - Service must also be made to 14+ infant |
|
NY service on incapacitated (insane)
|
- Service to both:
* Insane * Guardian - If no guardian: * insane * Guardian ad litem will be appointed |
|
NY basis of jurisdiction
|
General:
- Domicile at commencement of action - Doing business in NY - Physically serviced in NY Specific: - Long-arm statute - Long-arm for automobile owner/driver - Consent if not: * under duress * overreaching * unreasonable |
|
NY 'doing business in NY' jurisdiction
|
- General jurisdiction
- Domestic corp. qualifies - Foreign licensed corp. qualifies - Foreign unlicensed corp: * Systematic, continuous, on-going * Some physical location in NY * Employees/agents regularly in NY * Advertisement: insufficient * Officer travels to NY: insufficient * Selling through retailers: insufficient |
|
Domicile
|
- Capacity to fend onself
- Intent to remain permanently - Presence in residence - Domicile remains until acquire new one - Length of stay irrelevant - Motive irrelevant - Action speaks louder than words - Infants (who can't fend): * Parents * Person who have physical custody - Woman: self * historically: husband |
|
NY long-arm jurisdiction
|
- Arising out of transactions in NY
- Selling goods into NY - Performing service in NY - Tort actions in NY - Tort consequences in NY: * Deriving substantial revenue in NY * Regularly solicit business in NY * Foresee consequence & incl. NY in sales - NY use, possession or title of RE - Defamation not included in tort prongs - Consequence of tort: * Injury in NY * loss of NY customers/sales - Constitutional check: * Purposefully avail (directed to NY) * Reasonably foresee being sued in NY |
|
NY automobile long-arm jurisdiction
|
- Auto accident in NY
- May reach out-state: * Drivers * Owners (i.e. permissive use) |
|
SOL for Art. 78 review
|
4 months after administrative decision
|
|
SOL for defamation
|
1 year
|
|
SOL for intentional tort against person
|
1 year
|
|
SOL for claims against subdivisions of State
|
1 year and 90 days from accident
- Notice of claim w/i 90d of accident - Failure to state a claim w/o notice |
|
SOL for medical malpractice
|
- 2.5 year from malpractice
- Continuous treatment toll - Foreign substance: * 1 year 'extension' * from discovery/should discovery * not medicine * not medical device implant - 10y toll cap for infants - 10y toll cap for insane |
|
SOL for professional malpractice (non-medical)
|
- 3y from malpractice
- continuous representation toll - if sue after 10y under other theory: * notice of claim 90d before filing * D may move for summary judgment * P must prove with substantial evidence - 10y insane toll cap - no 10y toll cap for infant |
|
SOL for negligence/strict liability tort
|
- 3y from injury
- toxic substance from: * discovery * should discovery * NA to medical malpractice |
|
SOL for breach of warranties under UCC
|
4 years from tender of delivery to next merchant
|
|
SOL for common law contract
|
6 years from breach
|
|
SOL for rape victim v. convicted criminal (in civil action)
|
5 years from date of crime
|
|
SOL for victim of non-serious crimes v. convicted criminal (in civil action)
|
7 years from date of crime
|
|
SOL for victim of serious crimes v. convicted criminal (civil action)
|
- 10 years from conviction
- 3 years from date of discovery of source of money for recovery of damages |
|
SOL for indemnification or contribution
|
6 years from payment of judgment
|
|
SOL for real estate
|
10 years
|
|
SOL for recognition of judgment
|
20 years
|
|
SOL for adverse possession by co-tenant with voluntary absence
|
20 years (implied eviction)
|
|
SOL toll for survival claims
|
Tolled for 1 year if still timely upon death
|
|
SOL toll for wrongful death claims
|
2 years from death if survival claims timely upon death
|
|
SOL toll for infant
|
Tolled until becomes adult (18), afterwords:
- Original SOL>3y: extension to 3y - Original SOL<3y: extension to original - 10y cap for medical malpractice |
|
SOL toll for insane
|
Tolled until regain ability:
- Original SOL>3y: extension to 3y - Original SOL<3y: extension to original - 10y cap for all causes of actions |
|
SOL toll for absence
|
- Tolled if absent:
* upon cause of action accrues * >4m after cause of action accrues - AND: lack of personal jurisdiction |
|
SOL for fraud
|
Longer of:
- 6 years from action - 2 years from date of discovery |
|
SOL for equity claims (rescission, accounting, reformation)
|
6 years
|
|
SOL for replevin/conversion
|
3 years
|
|
SOL for proprety damages
|
3 years
|
|
NY timing of serving answer (or pre-answer MTD)
|
- 20d after personal delivery
- 20d after mail-acknowledgement - 30d after other methods of service - 10d after pre-answer MTD denied |
|
NY content of answer
|
- Denials
- Affirmative defenses - Cross-claims against other D - Counter-claims against P * P may reply if D counterclaims * P may not reply without leave otherwise |
|
NY ways to respond to summons and complaint
|
- Serve answer
- Serve pre-answer MTD |
|
NY ways to respond to summons and notice
|
- Serve demand for complaint
- Serve notice of appearance - P must serve complaint w/i 20d - Otherwise D may move to dismiss - P must: * Show cause of delay * Affidavit of merits |
|
Defenses waived if not raised in the first response (answer or pre-answer MTD)
|
Personal jurisdiction
If based on defective service: - must follow with MSJ w/i 60d - otherwise = withdrawn |
|
Defenses never waived after answer
|
- Failure to state cause of action
- Subject matter jurisdiction - Non-joinder of necessary parties |
|
Amendment of answers
|
- w/i 20d after service of answer
- once as of right - amended once / time expired: * Obtain leave from court * Granted if no irreparable injustice * favor amendment Prejudice if other party change position * witness gone * evidence gone - If answer is the first one, may add in personal jurisdiction at amendment |
|
NY affirmative defenses in answer or pre-answer MTD
|
- Documentary evidence
- Other actions between parties - Want of capacity - Non-joinder of necessary parties - Failure to state a cause of action - Lack of personal jurisdiction - Lack of subject matter jurisdiction - Statutory limitations - Paid (already performed) - Arbitration award - Release - Estoppel (collateral estoppel) - Res judicata - Infancy of defendant - Bankruptcy discharge - Statute of frauds |
|
NY service method after P served complaint
|
- First class mail
- USPS - in New York - To all parties (attorney) |
|
Implead
|
- D may implead 3rd party
- Anytime af. answer bf. judgment - Service w/i 120d of filing 3P complaint - Service on all parties - P may sue 3PD w/i 20d of 3P answer - Relation back SOL |
|
Relation back SOL
|
- P's cause arose out of same transaction
- P's cause at D's filing would be timely - P's case against 3PD is timely |
|
SOL grace period for dismissal
|
- 6 months to refile properly
- No grace period if dismissed: * Lack of personal jurisdiction * Voluntary dismissal * For pattern of delay * On merits |
|
Motion on notice
|
- Service at least 8d b/f return date
- Documents: * notice of motion * supporting affidavits * memorandum of law (optional) - Parties file b/f return date - Court consider on return date - Decision effective: * Entry by court clerk * Service of decision and notice of entry - interlocutory appeals allowed - 30d after serviced |
|
Motion by order to show cause
|
- Motion papers submit to judge
- with draft order to show cause - Judge signs and service on opponent - May expedite return date - TRO - Required for some proceedings |
|
Ex parte motion
|
- Only if authorized by law
- Examples * Motion to extend service * Expedient service * Some provisional measures - No appeal - Motion on notice to vacate - If denied: appeal |
|
Motion for summary judgment
|
- No genuine issue of material fact
- Counter: triable issue of fact - Search the record: SJ for either allowed - SJ on liability leaving damages allowed - Timing * After answer * b/f 120d after note of issues filed If MSJ after 120d limit: - Good cause for delay - E.g. new evidence, settlement discussion |
|
NY special proceedings
|
- Requires specific authorizations
- Court may convert: * Action to special proceedings * Special proceedings to actions - Filing petition - Service petition * 8d b/f return date * 20d for Article 78 proceedings - May use order to show cause * Expedite return date |
|
Article 78 Proceedings
|
- Special proceedings
* 20d return date - 4m SOL - Supreme Court exclusive jurisdiction - Remedy: injunction/declaratory - Basis * Certiorari * Review * Mandamus * Prohibition - May cause corporation to hold SH meetings |
|
Attachment (provisional remedy)
|
- Requirements:
* Affidavit * Probable success * Bond for damages - Situation: monetary damages * D is not domiciled in NY * D is foreign unlicensed corporations * D threatens to remove property * (i.e. defraud or frustrate judgment) - Ex parte allowed - Motion on notice to confirm * 5d after threaten prong * 10d after foreign prong |
|
Preliminary injunction and TRO
|
- Motion on notice required
- Requirement: * Affidavit * Probable success on merit * Bond - Available: * Seeking permanent injunction * D threatens to harm interest in subject matter TRO: - Motion by order to show cause - Order contains TRO - My shorten return date |
|
Receivership (provisional remedy)
|
- Element
* Affidavit * Probable success * Bond - Available * Equity claim * on specific property as subject matter * D threatens to destroy value of property - Motion on notice required |
|
Seizure (provisional remedy)
|
- Available
* P seeks reclaim physical possession - Element * Affidavit * Probable success * Bond - P gets property if still in hand - P gets damages if destroyed - Ex parte motion allowed - Follow by motion to confirm w/i 5d |
|
Form of attachment (provisional remedy)
|
- On real property
* Order of attachment * file with county clerk * Lien - On personal property * Order of attachment * On owner D or garnishee * Injunction not to transfer * Lien |
|
Notice of pendency
|
- No need of court action
- For use, title, possession of RE - Lien on property for subsequent buyer - Required for mortgage foreclosure - Remedy: motion to cancel - May file prior to action * Requires service of complant w/i 30 days * Otherwise D may move to vacate - Valid for 3 years - Extend before expiry - Not extended: cannot refile except mortgage |
|
SOL toll for death of D
|
18 months added to remaining SOL
|
|
Res judicata (claim preclusion)
|
- Claim precluded if arising out of the same transaction
- Not for domestic relation: * Divorce claim * Personal injury claim |
|
Res judicata (issue preclusion)
|
- Issue is precluded if:
* Actually litigated and decided * Identical issue * D has same incentive and full and fair opportunity to litigate |
|
Venue
|
- Venue default
* Situs county RE * One party lives in the county - If contest: * request and consent * move to change venue if silence/object - Grant if wrong venue chosen - Discretion for: * Prejudice * Convenience (material witnesses) |
|
Pre-answer MSJ
|
- Court conversion of pre-answer MTD
- Two situations * Recognition of judgment * Payment on instrument Require: - Summons - Notice for motion of SJ - Supporting documents - Return day as answer |
|
Civil trial
|
- On calendar after file of note of issues
- May request jury trial by either party - Right to jury: * Remedy at law (money) * Replevin * Claim on real property * Anulment * Divorce with fault (just for status) - Jury: 6 members; 5/6 decision |
|
Arbitration under NY law
|
- Policy in favor
- Threshold of arbitration * Existence of K (writing) * Validity of K (duress, fraud, coercion, PP) * Scope of K * CP for arbitration * SOL - Post-arbitration challenge * Bias of neutral arbitrator * Corruption/improper in procedure * Exceeding scope |
|
Challenge of arbitration (procedure)
|
- Motion to stay action and compel
- Special proceeding to stay arbitration |
|
Standing (constitution)
|
- Injury
* Personally suffers injury * Likelihood of future harm - Causation and redressability * must be caused by D - No 3rd party standing * Close relationship * 3rd party unlikely to sue * organization on behalf of member - Not as citizen or taxpayer other than establishment clause challenging government spending (not grant) |
|
Mootness (constitution)
|
- Moot if the injury was remedied
- Exception * capable of repetition and avoiding suit * voluntary cessation and may repeat * class action >= 1 member still injured |
|
Ripeness (constitution)
|
- No advisory opinion
- Preemptive suit allowed only if: * Undue hardship * Issue and record fit for adjudication |
|
Political Question
|
Not adjudicate if issue concerns:
- republican form of government - President's decision re foreign affairs - partisan gerrymandering - impeachment and removal |
|
Cases taken by Supreme Court
|
- Through certiorari
* State court cases * Federal circuit court cases - Through direct appeal * Federal 3-judge district court cases - Original and exclusive jurisdiction: state v. state - No interlocutory review |
|
US Supreme Court taking state cases
|
- Requires no independent state law ground of decision
Not take: - state ground and federal ground - reversing federal ground not changing result |
|
Cases against state in federal court
|
- Federal court may not take: 11A
- Federal agencies may not take: 11A - State court may not take: immunity Exceptions - Waiver (must be explicit) - under fed laws enacted under S.5 of 14A - federal government sues state Sue state officials: - Injunction - Damages out of official's own pocket - Not if state retroactively pays |
|
Federal court abstainsion
|
- If state court proceeding is ongoing, not enjoining
- Has jurisdiction - Not exercise |
|
Organization's standing on behalf of members
|
- member must have standing
- germane to organization's purpose - no involvement of member required for: * litigation * remedy |
|
Federal legislative power
|
- Express authority in the constitution
- Necessary and proper under Art.1.S.8 - No general police power except: * military * indian reservations * federal land and territory * D.C. - Tax and spending for general welfare - Commerce power * Channels * Instrumentalities * Persons and things * Activities that burdens interstate commerce Cumulative effect for burden: - For economic activities - Not for non-economic activities |
|
Delegation of federal legislative power by Congress
|
- Generally allowed. May delegate to:
* Federal agencies * Courts - Standard (usually satisfied): * Clear criteria * Intelligent principle - May not delegate executive power to: * Congress * Congressional officers |
|
Bicameralism and presentation requirement
|
- Must go through both houses
- Must signed to law by President - Line item veto unconstitutional - Legislative veto unconstitutional |
|
10A limit on federal legislative power
|
- No commandeering: not compel state to act or regulate
- May attach conditions to federal grants to induce the state to act - May prevent harmful commercial activities by state government |
|
14A S.5 power to legislate
|
- May not create new rights
- May not expand scope of existing rights |
|
President's foreign affair powers
|
- Executive agreement and treaties
* Treaties requires Senate 2/3 consent * Executive agreement does not * Both prevails against state law * Treaties prevails older federal law * Neither prevails constitution - War: President and Congress shares * President is command in chief * President may use US troops in foreign soil * Congress declare war * Congress raise army and navy |
|
President's appointment and removal powers
|
- Appointment:
* ambassadors * federal judges * federal officers - Senate consent required for appointments - Congress may vest appoinment power for inferio officers in: * President * Head of department * Federal Court - Removals: if no limit by Congress, President may remove any federal officer - Limits by congress allowed: * If independence from President is preferred * May not prohibit removals * May limit to good cause removals |
|
Impeachment and removal
|
- House of Rep: 1/2 - impeach
- Senate: 2/3 - remove - Impeach and removal are different - President, VP, federal officers, judges - Treason, Bribery, crimes and misdemeanors - S.Ct. chief justice preside Senate |
|
President Pardon
|
- May pardon
* federal * crimes - Not impeachments - Not state crimes |
|
Executive privilege in communication
|
- There is privilege
- But trumped by other important interest such as the interest to produce evidence in criminal cases |
|
President immunity
|
- Immunity to civil actions for acts in office
- No immunity for acts prior to presidency - Even no adjournment of trial |
|
Preemption (federalism)
|
Basis: Article III
- Express preemption - Implied preemption * Mutually exclusive * State law impedes federal objective * Congress' evident intent to preempt - State law can have more stringent standard - State law may not burden federal activity - State may not tax federal activity * no tax if coming out of treasury * may tax federal employee's income |
|
Dormant commerce clause
|
- Burdens interstate commerce
- Individuals and corporations may sue - No need of facial discrimination - Burdens out-staters - If neutral & burden: benefit > cost - If facial discrimination: * Important government purpose * Least restrictive means - Exception: market participant - Exception: Congress authorizes |
|
Privileges and immunities (PI) re liberty and ability to earn living
|
- Requires facial discrimination
- Against out-staters - Only individuals may use PI - Only for liberty/ability to earn living - Ability to enjoy (hobby) not included - Standard: * Important govermnet purpose * Necessity (least restrictive means) |
|
State taxation on interstate commerce
|
Must be:
- substantially connected to state - proportional to in-state activity - May not use tax to help in-state business |
|
Rational basis review standard
|
The challenger must prove:
- There is no legitimate interest; or - Law is not rationally related - Any conceivable interest counts - No need to be good or best |
|
Intermediate scrutiny review standard
|
Government must prove:
- Important governmental interest - Substantially related - No need to be least restrictve means - Must be narrowly tailored - Must be good means - May consider actual purpose |
|
Strict scrutiny
|
Government must prove:
- Compelling government interest - Necessary to achieve - Must be least restrictive means - Must be the best - Only consider actual purpose |
|
Bill of rights applicable to states
|
Through 14A due process
Exceptions: - 2A gun rights - 3A soldiers quartering - 8A excessive fines - 5A Grand Jury - 7A Jury |
|
State Actor (for protection of individual rights)
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Only government actions are within:
- Due process - Equal protection - Fundamental rights - Freedom of speech Exceptions: Congress may enact laws under Constitutional authority to apply to private actors: - 14A, S.5 - 13A, S.2 - Commerce Clause (Civil Rights Act) Exception: - Traditionally exclusive government functions (company town) - Government entanglement (may request government to cease or private actor to conform): * Gov. authorization * Gov. leases to private business that discriminates - Mere gov. grant is not entanglement |
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Procedural due process
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- life, freedom, property
- goverment intentional/reckless act - balancing test * Importance of interest * Ability to improve accuracy * Administrative efficiency Insufficient: - government negligence - goverment inaction without duty |
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Substantive due process (types)
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- Takings
Article I/substantive due process: - Not affecting existing contract - No bill of attainder - No ex post facto (criminal) law |
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Fundamental rights
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Substantive due process (privacy)
- marry - procreation - use contraceptives - keep family together - custodian of child - upbringing child - abortion - private homosexual activity - right to refuse treatment - no right to education - no right to physician assisted suicide Equal protection: - right to travel (not foreign travel) - right to vote |
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Abortion
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Protected under substantive due process privacy
Standard: - Not viable: * cannot prohibit * can regulate for women's health * cannot affect ability to obtain abortion - Viable * may prohibit * except to protect women's health - No right to gov. subsidy of abortion Notice and consent: - Spouse: not pass scrutiny - Parent for unmarried minor: * Allowed * With judicial determination exception |
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Equal Protection (Discrimination)
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- Facial discrimination
- Facially neutral but with both: * discriminatory intent * discriminatory effect - Standard determined by type |
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Discrimination based on race
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Standard: strict Scrutiny
- affirmative action: * No numerical set-off * may take into account (a factor) * may not numerical add points Redrawing district based on race: strict scrutiny Disrupting seniority system: not pass |
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Discrimination based on gender
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Standard: intermediate scrutiny
Affirmative Action: - allowed to remedy: * different opportunities * past discrimination - not allowed if based on stereotype |
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Discrimination based on national origin
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Standard: strict scrutiny
Rational basis: - Congress' immigration law - Self-regulated professions - Democratic process Intermediate scrutiny: - Undocumented aliens |
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Discrimination of non-marital children
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Standard: intermediate scrutiny
- not pass if no non-marital children is benefited - pass if some non-marital children are benefited and some are denied benefit |
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Discrimination based on age
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Rational basis standard
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Discrimination based on disability
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Rational basis standard
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Discrimination based on wealth
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Rational basis standard
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Discrimination in economic regulations
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rational basis standard
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Discrimination based on sexual orientation
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Rational basis
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Fundamental right to travel
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- Not pass strict scrutiny if refusing entry of out-staters
- No fundamental right to foreign travel - Durational residency requirement for voting no more than 50 days |
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Fundamental right to vote
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- One person one vote
- Redrawing district re population: strict scrutiny - Partisan gerrymandering: political question - At large election: allowed, unless with discriminatory intent - Counting uncounted vote without standard: not pass |
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First amendment approach
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- Content-based/content-neutral
* Viewpoint based * Subject matter based - Strict scrutiny for prior restraints - Time, manner, place regulations * Public forum * Limited public forum * Private forum - Low value speech * Inciting illegal activities * Obscenity * Commercial speech * Defamation * Privacy |
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First amendment - Prior restraints
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Standard: strict scrutiny
- Procedurally proper court order: * Must obey * Lost right to challenge if disobey - Court order to restrain media coverage to prevent prejudicial effect in the community: not pass SS - Licensing requirement: * Important reasons for licensing * Criteria is so clear - no room of discretion - Fees for public demonstration: not pass SS - Vagueness and overbroad regulation: not pass * E.g. fighting words |
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Symbolic speech
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- need independent gov. interest to regulate
- impact must be no greater than necessary - Pass SS to prohibit: * Draftcard burning * Cross burning to intimidate * Nude dancing - Not pass SS to prohibit: * Flag burning (i.e. allowed) * Cross burning (i.e. allowed) |
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Forum of speech
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Public and limited public forum:
- Strict scrutiny for content-based - Intermediate scrutiny for content-neutral * Time, manner, place regulation * Important gov. interest * Narrowly tailored * Leaving sufficient alternative forum Private forum: rational basis; reasonable and viewpoint neutral - Military base - Prison front gate - USPS sidewalk No 1A right to access private property |
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Inciting illegal activity 1A
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- Substantial likelihood of illegal activity
- Directed to cause illegal activity |
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Obscenity
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Critera:
- Prurient interest - Patently offensive - Lack serious redeeming value Child porn: - prohibited if actual child - May punish possession - May not punish possession of adult porn Zoning for adult bookstore/theatre: allowed Gov. may seize assets of business that violate obscenity. Profane words: allowed except - Broadcasting - School |
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Commercial speech
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Prohibited if:
- False or deceptive - Ad. of illegal activity Truthful, nondeceptive: - intermediate scrutiny - complete ban: not pass Prohibit misleading prof. ads.: allowed - in-person solicitation: * laywers * accountants - Trade name for professionals |
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Privacy interest in 1st amendment
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- Not prohibit media report using information acquired from government source (publish id of criminal from trial record?)
- Media's use of tape illegally acquired: * Public concern * Media not participating in illegal activity - Public has right to attend crim trial - No right to attend for other trials |
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requirements for punishing associations
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- Must be active member
- Must know the illegal purpose - Must intend to further illegal purpose |
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Anti-discrimination for associations
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- May require the associations not to discriminate against members
- Requiring to disclose members if chill association: strict scrutiny - Not: * Intimate relationship * Expressive associations |
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Exercising clause (1A)
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- General application, facially neutral:
* allowed * if not general/neutral: strict scrutiny - May not withdraw welfare for people who quit job due to religious reasons |
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Establishment clause (1A)
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- Not discriminate one religion among many religions
Law involving religion pass if: - Secular purpose of law - Not advocating or prohibit - No excessive government entanglement - Grant to parochial school allowed if not for religious instructions - Sponsored religious acitivty in public schoo: not pass - No school prayer even if voluntary - But religious students/groups must have access to school facility |
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Termination of social security disability benefit
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Post-termination notice
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Termination of welfare benefit (due process)
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Notice and hearing
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School discipline (due process)
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Notice and opportunity to explain
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Institutionalize child by parents (due process)
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Neutral fact finder to determine relevant facts
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Termination of custody (due process)
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Notice and hearing
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Civil conviction (due process)
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Notice and hearing
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Prejudgment goverment attachment or seizure (due process)
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notice and hearing
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Punitive damages (due process)
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- Must give jury instructions
- Must have judicial reviews - Excessive punitive damages: not due process |
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Local or state regulation impairs existing contract
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- Private contract: intermediate scrutiny
* Substantially burdens existing K * Important gov. interest * Narrowly tailored regulations - Government contract: strict scrutiny |
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Presumption that marital husband has custody of non-biological child
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- Valid for fundamental right privacy
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O to A and his heirs
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- Fee simple absolute
- 'and his heirs' is not required today - Devisable, descendible, and alienable |
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O to A and heirs of his body
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- C/L tradition: Fee tail
- not alienable - passes to the linear descendant of A - Under any circumstances - Modern: creates a fee simple absolute in A |
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Defeasible fees
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- fee simple determinable
- [NY: fee on limitation] - fee simple subject to condition subsequent - [NY: fee on condition] - fee simple subject to executory limitation |
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O to A so long as ...
O to A during ... O to A until ... |
- fee simple determinable
- [NY: fee on limitation] - automatically reverts to O if violated - O: possibility of reverter - 'with the purpose/wish/hope' insufficient - O's interest not subject to RAP |
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O to A, but if ..., O has the right to re-enter and re-take
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- fee simple subject to condition subsequent
- [NY: fee on condition] - Right to re-enter and re-take: must be express - O: right of entry - [Power of termination] - [NY: right of re-acquisition] - Upon violation, O must take action - Not automatic reverting to O - O's interest not subject to RAP |
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O to A, but if ..., to B
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- fee simple subject to executory interest
- B: shifting executory interest - Upon violation, automatically goes to B - O: reversion (if any) - B's interest is subject to RAP |
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O to A for life
O to A for life, then to B O to A, and upon A's death, to B |
- A: life estate
- O: reversion - B: remainder - A is entitled to ordinary use and profits - A may not commit waste - A may transfer life estate - If transfer: life estate pur autre vie |
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Waste (real property)
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- affirmative, permissive or ameliorative
- affirmative/voluntary: overt act destroys value - permissive: neglection that destroys value - ameliorative: acts that increases value |
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Affirmative waste
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- life tenant may not exploit the land
- exception: open mines doctrine - exception: to the extent necessary to repair - exception: express authorization by grant - exception: expectation - only suitable use |
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Permissive waste (life tenant)
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- duty to maintain and protect the land
- only for reasonable repairs - pay ordinary taxes to the extent of: * profit/income * fair rental value |
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Ameliorative waste
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- C/L: committing ameliorative waste requires:
* knowledge by remaindermen * consent from remaindermen - NY: committing amelorative waste permitted, unless remaindermen object |
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Vested remainder
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Requirements:
- identified person/class - no condition precedent (CP) [No CP before or within same comma] |
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Types of vested remainder
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- indefeasibly vested remainder
- vested remainder subject to * complete defeasance [total divesture] * open [NY: remainder vested subject to complete defeasance] [condition after granting clause, separated by comma] |
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Rule of convenience
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Upon termination of preceding interest, when the remaindermen may claim possession, the class closes
[Womb's rule: unborn fetus at time of close may join if born alive] |
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Contingent remainder
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- Unidentified holder (except class)
- Condition Precedent to vesting - CP before or in the same comma - NY: remainder subject to condition precedent |
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Rule of destructability of contingent remainder
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- Remainder destroyed if:
* Preceding interests terminates * Contingency unsatisfied - Abolished now: * O gets fee simple subject to EI * Remainderman: gets springing EI |
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Rule in Shelly's Case
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- It is by operation of law
* A gets present interests * A's heir gets 'contingent' future interest * [Contingent because A has no heir when alive] - Grantor intent is irrelevant - Abolished today Tradition: - O grants 'to A for life, then to A's heirs' - A receives a fee simple absolute Now: - A gets life estate - A's heir gets contingent remainder - O gets reversion |
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Doctrine of Worthier Title
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- It is a presumption
- Grantor may override by clear intent - O grants 'to A for life, then to O's heirs.' Tradition: - 'to O's heirs' is void and O has reversion - O and A may transfer fee simple together Now (NY after abolishment 1967): - A gets life estate - O's heir gets contingent remainder |
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Executory interest
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- divesting O: springing
- divesting A: shifting [NY: remainder subject to condition precedent] |
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Restriction of alienability
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- Absolute restriction: void
- Nov void: * reasonable time limit * reasonable purpose |
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Rules against Perpetuities (RAP)
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- Applicable to:
* Contingent remainder * Vested remainder subject to open * Executory interests * Right of first refusal * Suspension of alienation - Not applicable to: * grantor interests * indefeasibly vested remainder * vested remainder subject to complete defeasance - Identify interest - Identify condition - Identify measuring life - Theoretically possible: life + 21 years - No: struck the future interest - If remaining part gramatically incorrect, delete the conditions as well. |
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RAP violations (flat situatons)
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- class gift contingent on members reaching an age beyond 21
- executory interest with no limitation on condition |
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RAP reforms
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- Second look: upon termination of preceding estate
- USRAP: 90-year alternative period - Cy pres: reform the grant to match grantor intent as nearly as possible - Reform age condition to 21 if violating NY: - Common law RAP - No second look, no USRAP - No cy pres - Reform age to 21 - Suspension of alienation within RAP - Women > 55 are infertile |
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Joint tenancy
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- Joint tenant has right of survivorship
- Four identities: * Identical time * Identical title (instrument) * Identical share * Right to possess the whole - Straw is necessary - Grantor must expressly provide right of survivorship, otherwise it is tenants in common - NY: no need of straw |
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Tenancy by the entirety
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- Only available between married couples
- Has right of survivorship - Conveyance to married couples presumed to be tenancy by the entirety (i.e. may change) - Creditor cannot reach the property - One spouse cannot convey title NY: - Creditor can reach one spouse' share - But subject to all rights of the other spouse |
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Tenancy in common
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- Has title in part of the property
- No need to be identical share - Has right to possess the whole - Tenancy in common may result from: * Express grant * Failure to create joint tenancy * Severance of joint tenancy |
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Severance of joint tenancy
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- One joint tenant sells property
- (even if sale did not close) - Partition - Mortgage severs: * In title theory jurisdictions * Not in lien theory jurisdictions (NY) |
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Tenant rights and duties (in joint tenancy / tenancy in common / tenancy by the entirety)
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- Right to possess the whole
- Wrongful eviction if excluding other tenants - No adverse possession if voluntarily absent - NY: 20 years adverse possession - No right to collect rent if voluntarily absent - Right to account if rent to 3rd party - May not commit waste - Partition |
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Partition (3 methods)
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- By agreement
- In kind through court - Forced sale through court Court may partition the property if it is in the best interest of all parties. |
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Waste (co-tenant)
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- Voluntary/affirmative waste
- Permissive waste: * co-tenant must repair the property * co-tenant contribution with notification * co-tenant must pay carrying costs (taxes) - Ameliorative waste: upon partition, co-tenant is: * entitled to credit if his efforts increased value * subject to damage if his efforts decreased value |
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Four types of leaseholds
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- tenancy for years
- periodic tenancy - tenancy at will - tenancy at sufference |
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Tenancy for years (features)
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- Create by express grant
- Longer than 1 year: writing SOF - 1d to many years available - Notice not required to terminate |
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Tenancy at will (features)
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- Must be explicit
- Both parties have right to terminate - Reasonable notice necessary - NY: landlord must give 30d notice |
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Tenancy at sufference (features)
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- created for holdover tenants
- purpose: recover rent - terminate upon: * acceptance of holdover * successfully evict through court |
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Periodic tenancy (features)
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- May be of different periods
* week by week * month by month * year by year - Terminate with notice of at least one period - Notice be written - 6 months for year-to-year or above - Terminable only at the end of period - Creation: * Express * Writing w/o length but with rent * Accepting hold-over tenant * Tenancy for years failed for SOF - Periods implied by way of tender rent |
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Rights and duties of tenant (leasehold)
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- Pay rent. Landlord's remedy differs:
* tenant in possession * tenant not in possession - Not commit waste - Make ordinary repair - Liable to 3-P in tort - Assignment - Sublease |
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Tenant's liability to 3P in tort (leasehold)
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- T is liable even if L explicitly promise to repair
- T may sue L for indemnification under K |
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If tenant does not pay rent and is in possession, landlord's remedy
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Landlord may:
* Sue to evict and claim past due rent * Accept and sue for due rent - No landlord self-help * change premise (e.g. lock) * remove T's property * forcibly evict - If self-help: civil/criminal liability - NY: treble damages |
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If tenant does not pay rent and is not in possession, landlord's remedy
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- treated it as a surrender and accepts
* If remaining period > 1y: SOF * Acceptance deliver to last known dwelling - minority: do nothing and sue for rent - majority: try to sublease on behalf of tenant - NY: no need to try (let others come to you) |
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If tenant explicitly promises to repair and premises destroyed without fault of tenant
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- C/L: tenant must restore
- Now: tenant may terminate - NY: unless expressly provided otherwise, tenant may surrender the premise and stop paying rent |
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Tenant waste (leasehold)
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Removal of fixture is affirmative waste
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Fixture (real property)
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Fixture is movable property, when attached to realty, objectively show the intent to permanently improve the realty.
- Fixture belongs to owner of realty - Removal causes substantially damage: fixture - Otherwise: not fixture - K may provide recognition of fixture |
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Assignment of lease
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- contract may prohibit assignment
- if L consent to assignment, waived, unless expressly reserve right to deny future assignment NY: without agreement for residential lease: - assignment requires landlord's consent - L may unreasonably withhold consent - assignee in privity of estate - L may sue T2 for covenants on land - not in privity of contract - if assumes all responsiblity: in privity - assignor in privity of contract - L may sue T1 for covenants on K - T1 is secondarily liable to L |
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Sublease
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- contract may prohibit sublease
NY: in residential buildings >= 4 units - sublease requires L's consent - L may not unreasonably withhold - Unreasonable withhold = consent - after sublease: * L and T is in privity of K and estate * T and S is in privity of K and estate * No relationship between L and ST |
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Landlord's rights and duties (leasehold)
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- Delivery
* English rule: legal and physical * American rule: legal - if failed: T may sue for damages - Implied warranty of quiet enjoyment - Implied warranty of habitability - Constructive eviction - Caveat lessee |
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Implied warranty of quiet enjoyment (leasehold)
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- Residential and commercial
- Constructive eviction: * T must actually vacate * Severe interference * T must give notice to L - Landlord is NL for 3-P tort towards T: * L should not permit nuisance * L should control common area |
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Implied warranty of habitability (leasehold)
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- Only residential
- Bare minimum for living - Building code or cases for standard - Violate: * No plumbing * No running water * No heat in winter - Tenant remedy: * Reduce rent * Repair and deduct rent * Sue for damages * Vacate - L may not retaliate if T reports violation of housing code by: * increase rent * terminate lease |
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Landlord's liability for tort
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- Caveat lessee: no duty to fix
- Landlord is liable: * Defects in common area * Known latent defect: must warn * Landlord assumes to repair * Lease of public space * Short term, fully furnished lease |
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Servitudes (types)
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- Easement
- License - Profit - Covenants - Equitable servitudes |
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Easement (types)
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Holder has a non-possessory right to some form of use or enjoyment of the servient tenement.
- Affirmative easement - Negative easement (only by express grant) * Air * Water flow * Light * Support * Minority - scenic views - Easement appurtenant to dominant tenement - Easement in gross |
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Easement appurtanent to dominant tenement
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- Requires two parcel of land
* Dominant tenement gets benefit * Servient tenement has burden - Automatically follows transfer of land - Exception: BFP of servient tenement * For value * Without notice |
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Easement in gross
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- Only one parcel: servient tenement
- Not automatically transfer - Exception: for commercial use |
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Creation of easement
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- Express grant
* Requires writing for SOF if > 1y - Prescription (adverse possession) - Necessity (landlock situations) - Implication (divide and sell) NY SOL: 10y |
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Easement by prescription requirements
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- Continuous for SOL
- Open and notorious - Actual - Hostile (no permission) |
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Scope of easement
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- Determined by term of grant
- Condition giving rise to the easement - Owner of servient tenement may determine the location of the easement arising out of necessity. |
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Termination of easement
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END CRAMP
- Estoppel: * Holder represents no more use * Servient owner relied and changed - Necessity: necessity ends * Unless it is also by express grant - Destruction of servient tenement without fault - Condemnation of servient tenement - Release by holder in writing - Abandonment: * Physical act of holder * Showing intent to no longer use * Not mere non-use - Merge of dominant and servient lands * Not automatically revived - Prescription: COAH |
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Profit (real property)
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Holder has non-possessory right to enter into servient tenement to take out soil or soil products (timber, oil, minerals)
Same rules as easement |
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License (real property)
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Holder is granted the right to enter land for delineated purpose.
- May be oral (no SOF) * Ticket * Neighbor talking - License is freely revocable - Estoppel: relied and spent money and effort |
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Covenant (real property)
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Covenant: P sues for money damages
Types: affirmative/negative Requires: - Covenant runs on benefited tract - Covenant runs on burdened tract |
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Covenant runs on burdened parcel
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- Covenant in writing
- Intent to run - Touch and concern (i.e. relating to land) - Horizontal privity * Buyer-seller * Landlord-tenant * Mortgagor-Mortgagee - Vertical privity - Notice (actual, inquiry, record) |
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Covenant run on benefited parcel
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- Covenant in writing
- Intent to run - Touch and concern (relating to land) - Vertical privity (non-hostile) |
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Equitable servitudes (requirement)
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P sues for injunctive relief
- Writing - Intent to run - Touch and concern - Notice - Implied equitable servitude: general or common scheme doctrine |
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Implied equitable servitude (general or common scheme doctrine)
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- Applicable to holder who's not bound by written covenant
- general scheme including holder's land - Notice requirement: * Actual * Inquiry * Record MBE: record notice of others' deed NY: no record notice of other's deed |
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Adverse possession (land)
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Possession may ripen into title.
- Continuous - Open and notorious * Like an owner - Actual (in possession) - Hositle --- - MBE: good faith belief of ownership not required - NY: good faith belief of ownership is required - Lease of property to others is like an owner (open and notorious) and is in possession (actual) - NY: 20 years for co-tenant's possession |
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Land Transfer Requirement
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- Land contract
* Written * Citing consideration and tract * Signed by grantor - [SOF: part performance doctrine] - Lawfully executed and delivered deed |
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Land contract (real property)
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- Warranties of marketable title: no litigation or threatened litigation
* No violation of zoning regulation * No encumbrance at closing - Encumbrance: may be waived - If there is mortgage and buyer understand that proceeds will release mortgage, buyer may not use marketable title defense. - Warranty of full disclosure of material facts * Non-disclosure or fraud: void - No warranties of quality or habitability - Except if builder-seller: * workmenlike construction * quality |
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Risk of loss regarding land contract
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- Risk of loss transferred to buyer
* upon closing * equitable conversion: upon signing - NY: buyer assumes risks upon: * Getting possession * Obtains title (closing) |
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Deed execution and delivery (land transfer)
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- Writing required
- Citing unambiguously the land - No need to mention consideration - Signed by grantor - Delivery - Delivery is legal delivery - Showing present intent to transfer - No need of physical transfer - May by mail, messenger or agent - No need to put into grantee's hand - If rejected by grantee: not successful |
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Three types of deeds
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- Quitclaim deeds
- General warranty deeds - Statutory warranty deeds |
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Quitclaim deeds
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There is no warranty at all made by the grantor
There is not even warranty that grantor has marketable title Buyer may not resort to grantor |
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General warranty deeds
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Grantor guarantees no breach by him or predecessor.
- Present warranties - SOL runs from delivery * Grantor has seisin (i.e. ownership) * Grantor has right to convey * There is no encumbrance - Future warranties - SOL runs from breach * Quiet enjoyment (no double sale) * Defend * Further assistance - Right to convey: * Not subject to suspension of alienation * Not infant * Not insane |
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Statutory warranty deeds
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- NY: Bargain and Sale Deed
- Grantor only guarantee no breach by him Two warranties: - not to double sell - no encumbrance created by grantor |
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Recording statutes
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- Race-notice statute: BFP trumps prior buyer if BFP records first
- Notice statute: BFP trumps prior buyer, even if subsequent to BFP's purchase, prior buyer records earlier than BFP |
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Bona find purchase (for recording statutes)
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- Purchase for value
- Without notice * Actual * Inquiry (objective) * Record Inquiry notice if: - someone else in possession - deed mentions unrecorded transaction No record notice if: - Wild deed - Deed prior to grantor obtains ownership |
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Shelter rule
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- Grantee gets the same right as grantor
- It protects BFP - applies if threads of sale of land > 1 |
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Wild Deed
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- prior deed is unrecorded
- missing link in the chain of title - It does not give due record notice |
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Estoppel by deed
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- Grantor grants when lacking title
- Grantee records deed - Grantor later obtains title and record - Grantor later grants to second grantee - B/w grantor and grantee-1: * grantee-1 * estoppel - B/w grantee 1 and 2: * grantee-2 * Presumed not to convey w/o title |
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Mortgages requirement
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Deed:
- Writing * a note * a mortgage deed * a security interest in land * Sale and lease back * a deed of trust - citing land - Priority * recording statute determines priority * purchase money mortgage priority - Mortgagor has title and right to possess - Mortgagee has lien - Each party may transfer the interest |
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Equitable mortgage
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- Parties have intent to mortgage
- Delivers an absolute deed B/w parties: may use extrinsic evidence to prove the mortgage intent Mortgagee transfers land to another: - Owner has no recourse against BFP - Owner may sue mortgagee for * fraud (damages) * disgorging proceeds of sale |
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Sell of land subject to mortgage
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- If buyer assumes responsbility
* Buyer is personally liable * Seller is personally secondarily liable - If buyer takes 'subject to' mortgage * Buyer is not personally liable * Seller is personally liable * Mortgage is still on land * Mortgagee may foreclose on buyer Under both, mortgage goes with land, unless BFP without notice under recording statute |
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Assignment of mortgage
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- assignment in a separate agreement
- endorse and deliver the note to asignee Assignee becomes a holder in due course: - Negotiable to assignor - Assignor endorses - Assignor delivers to assignee - Assignee has no notice of illegality - Assignee pays more than nominal value |
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Defense against holder in due course (commercial paper/mortgage)
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- Mortgagor has no personal defenses
* Lack of consideration * Fraudulent inducement * Unconscionability re original * Waiver (by assignor) * Estoppel (by assignor) - Mortgagor has real defenses (MAD FIF IIII) * Material alteration * Duress * Fraud in fact * Infant * Incapacity * Insolvency * Illegality |
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Mortgage forclosure
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- Foreclosure through court
- Necessary parties: * all junior lien holders * debtor-mortgagor - Parties not joined retains mortgage - Foreclosure not terminate senior lien - Priority: * Attorney fees * Forclosure expenses * Principal and interest of senior lien * each junior lien * debtor |
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Equitable redemption
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Mortgagor before foreclosure has the right to redeem by paying:
- all past due amount - if accelerated, all outstanding balance - plus cost and interest - It is not waivable |
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Statutory redemption
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- 6m/1y after the foreclosure
- redeem by paying sale price - may remain in possession - nullify the sale transfer |
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Support and excavation standard of care
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- Strict liability if cave in without improvement
- Negligence otherwise |
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Water rights
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- Riparian owner theory
* riparian owner has right * reasonable use - First appropriation theory * state has right * appropriate by beneficial use * [agriculture OK] * first in time, first in right - Underground water * reasonable owner theory * no malicious or wasteful use * C/L minority: absolute right - Surface water: common enemy |
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Taking forms (real property; constitution)
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- Express taking
* condemnation * physical occupation - Implicit taking * removing all reasonable economically viable use of property * exaction that are not proportional or congruent with the proposed use |
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Taking requirements (real property; constitution)
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- Government may take for public use private property in exchange for just compensation
* public use: gov. reasonably belives that taking will benefit the public * just compensation: market value (fair value) to owner; not benefit to taker |
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Zoning regulations (real property)
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- Zoning is allowed under the general police power
- note first amendment - taking if deprive prior conforming use in totality |
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Exactions (real property; constitutional law)
|
Exactions: conditions attached to zoning:
- proportional - congruent - to the impact of the proposed development |
|
Zoning variance
|
Elements:
- Show undue hardship of current zoning - Not decrease the value of neighboring land - Decision by zoning board - Administrative ruling |
|
Oral agreement in consideration of marriage
|
Unenforceable
- Statute of Frauds |
|
Remedy after rejection of goods for non-conformity
|
Refund
Return Damages - If seller refuses return request, then buyer may sell the goods and claim damages. |
|
Buyer of goods is insolvent upon delivery
|
Seller may refuse to deliver except for cash, including payment of all goods previously delivered under contract
|
|
Mistake as a ground for K rescission
|
- Mistake is mutual
- Mistake is a basic assumption of the contract (materiality) - Mistake materially affects the agreed-upon exchange - The party seeking avoidance did not assume the risks. [Mistake as to price is not material] |
|
Remedy for buyer of goods if buyer accepts the nonconformity goods
|
Damages equal to the difference of:
- Expected value - Actual value (Market values) |
|
General contractor relies on the sub-contractor's bid (2 effects)
|
- Option contract under Restatement 87 (acceptance by General Contracter through placing bid based on the sub-contractor's bid)
- Irrevocable offer by subcontractor for the subject matter even if there is no consideration (foreseeable reliance) |
|
Good faith oral moification by merchants for sale of goods, which violates the Statute of Fraud, has 2 effects
|
- The modification is not enforceable
- The modification constitutes a waiver by the detrimented party; if a party relies on the waiver (e.g. incurred costs based on the increased price), the waiver may not be retracted. |
|
Two potential remedies for alleged breach of contract
|
- Contract
- Restitution (for unjust benefit) |
|
Offer
|
- Manifestation of intent to be bound
- Requirement contract valid under UCC - No price: implies reasonable price * Real estate sale: requires price * UCC: reasonable at delivery - Advertisement is not offer |
|
Unilateral contract
|
Offer specifies acceptance by performance only (awards, competition, etc)
|
|
Bilateral contract
|
Offer allows flexible acceptance
|
|
Offer termination
|
- Lapse of time
* Contract specified time * Reasonable time - Revocation - Rejection - Death of party for revocable offer |
|
Revocation of offer
|
- Express or implied:
* Acts showing intent to revoke * Known to offeree - Revocation effective upon arrival - Offer must be revocable Irrevocable: - Option contract - Foreseeable reliance - Partial performance - Firm offer under UCC |
|
Option contract
|
- Promise to keep offer open
- Requires consideration under Common Law - NY: signed writing enforceable |
|
Partial performance (irrevocable offer)
|
Bilateral contract:
- Partial performance is acceptance - MBE: also promise to complete Unilateral contract - Complete performance is acceptance - MBE: partial performance irrevocable - MBE: offeree may walk away - NY: revocable until completion |
|
Firm offer under UCC
|
- Promises to keep offer open
- In signed writing - Made by merchant - Specified time/reasonable time - No more than 3 months |
|
Rejection of offer
|
- Counter offer: rejection
- Conditional acceptance: rejection - C/L: mirror image rule - UCC 2: difference is acceptance UCC altered terms included: * Between merchant * Not material terms * Not objected within reasonable time - Industry custom is not material |
|
Acceptance
|
Bilateral contract:
- reasonable way - starting performance * also with promise to complete Unilateral contract: - complete performance Improper performance: - Acceptance and breach - UCC: if accommodating, no acceptance Offer may specify method of acceptance * But not single-handedly make silence so Timing: mailbox rule |
|
Mailbox rule of acceptance
|
Acceptance effective upon mailing.
Exception: - Offer is irrevocable (by arrival). - Offer specifies differently. - Rejection sent first (by arrival). - If rejection sent second but arrives first, and offeror relies, then rejected. |
|
Defenses to formation of contract
|
- Ambiguity
- Mutual mistake - Public policy - Unconscionability - Material undisclosure/misrepresentation |
|
Defenses to enforcement of contract
|
- Lack of capacity
- Duress (economic duress) - No consideration - Statute of fraud |
|
Incapacity defense to contract
|
- Infant, insane, intoxciation
- May disaffirm after gaining/regaining ability - Accepted benefits after ability: estoppel - Liable for necessary items for restitution (fair value)*** |
|
Economic duress defense to contract
|
- Generally not good defense
Elements: - Preexisting contract - Current emergency - Threat to breach unless additional K |
|
Consideration defense to contract
|
Consideration:
- benefit/detriment - bargained-for - Adequacy irrelevant (unless illusory) Issues: - Past consideration - Modification - Discharge of debt - Promissory estoppel |
|
Past consideration
|
- MBE: not good
- NY: in signed writing, provable: good |
|
Modification consideration
|
- C/L: new consideration required
- NY: signed writing is good UCC 2 enforceable without consideration: - Good faith modification - Between merchants |
|
Discharge of debt: consideration
|
Discharge of past due, undisputed debt: no consideration.
Discharge of not due, or disputed debt: consideration. NY: in signed writing: good. |
|
Assumption of time-barred debt
|
- Enforceable without consideration
|
|
Promissory estoppel
|
Even without consideration, a promise is enforceable if:
- Promisor reasonably foresees to induce detrimental reliance - Promisee relied |
|
Ambiguity for Formation of Contract
|
- 2 parties said same thing but meant different things: no contract.
- 1 party knows ambiguity: the other party's meaning controls. |
|
Mutual mistake for formation of contract
|
- 2 parties both thought Fact A
- Turn out to be Fact B - Fact A is the basic assumption of K - Not about the price |
|
Unilateral mistake of contract
|
K is still valid:
- One party mistake - The other party does not - No fraud or misrepresentation |
|
Undisclosure or misrepresentation re Contract
|
- Contract is voidable
- No need to have fault - Innocent non-disclosure is sufficient if mistake is material - Fraudulent misrepresentation: voidable |
|
Public Policy (non-compete)
|
- No non-compete for lawyers, except
* Sale of business * Conditional retirement benefit - Reasonable in duration and scope - Reasonable in person to be bound |
|
Unconscionability for contract
|
- Substantive unconscionability
- Procedural unconscionability - 'Shock the conscience' |
|
Statute of fraud: list of situations
|
- Real estate
- Performance > 1y - UCC 2: $500 or more - UCC 2A: $1,000 or more - Suretyship - Modification - NY mics |
|
Statute of fraud: real estate
|
Land contract within statute of fraud
Requires: - Consideration - Description of land - Signed by transferor - Lease agreement > 1y is SOF - Deed is SOF - Mortgage deed is SOF - Except partial performance doctrine |
|
Partial performance doctrine
|
2 of 3 suffices statute of fraud:
- Partial payment - Possession - Substantial improvement |
|
Statute of fraud: performance
|
- Performance not complete within 1y
- Not duration of performance - MBE: life K within 1y (not SOF) - NY: life K is beyond 1y (SOF) - Complete performance exception |
|
Statute of fraud: UCC 2
|
- Sale of goods $500 or more: SOF
- Requires quantity and sign Exception: - Party admission in judical proceeding - NA for partially paid/accepted goods - NA for custom-made goods - Merchant: * Between merchant * Sends confirmation * Citing agreement/quantity * No objection within 10 days |
|
Statute of fraud: UCC 2A
|
- Lease of personal property (not RE)
- $1,000 or more - Requires: * 'lease' * term, rent, and quantity * signed |
|
Statute of fraud: suretyship
|
- One is liable for other's debt
- Requires all material terms and sign - Except: primary purpose is benefit self |
|
Statute of fraud: modification
|
If modified agreement within SOF: modification requires SOF
- No matter the writing of current K Private SOF for modification: - C/L: not allowed - UCC 2: allowed |
|
Statute of fraud: NY specific
|
- Promise to pay discharged debt
- Transfer of insurance policy - Finders fee, except to: * Attorney * Auctioneer * Licensed RE broker |
|
Parol evidence rule
|
Writing supercedes:
- Prior writing - Prior/contemporaneous oral agreement - Not affecting subsequent oral - May supplement agreement - May not supplement if merger clause - May attack validity - May show clerical error - May explain ambiguity |
|
Conducts to explain contract
|
- Prior course of performance
- Prior dealings between parties - Trade usage / industry custom |
|
Express warranty
|
- Specimen or sample
- Hard to disclaim |
|
Implied warranty of merchantibility
|
- UCC 2 sale of goods
- Seller is merchant - Fit for ordinary use - Not for financial lessor Disclaimed by: - Magic: 'as is' or 'with all fault' - Conspicuous disclaimer w/ 'merchantibility' |
|
Implied warranty of fitness for specific purpose
|
Seller knows:
- Buyer has specific purpose - Buyer relies on seller to pick - Not for financial lessor Disclaimed by: - Magic: 'as is' or 'with all fault' - Conspicuous disclaimer |
|
Limit in remedy (disclaimer in K)
|
- Seller may limit if conscionable
- Unconscionable if: * Consumer goods; and * Personal injury - Limit: 'Damage is limited to [number].' - Limit: 'Damage is limited to replacement.' - Warranty disclaimer: 'Not responsible for ...' |
|
Risk of loss (UCC 2)
|
- Contract provisions
- Breaching party Carrier shipment: - Shipment: handing to carrier - Destination: tender to buyer Non-carrier delivery: - Merchant: buyer actual possession - Non-merchant: tender to buyer - Lease of goods: lessor - Financial lease: lessee |
|
Risk of loss: land transfer
|
- C/L: upon signing contract
- Now/NY: transfer to buyer upon: * Taking possession * Transfer of title (closing) |
|
Shipment contract (risk of loss)
|
FOB. Seller address
- Delivery to common carrier - Carefully choose carrier - Get all paper for buyer to take possession |
|
Destination contract (risk of loss)
|
FOB. Buyer address
- Select carrier - Arrange for shipping - ROL transfer upon tender |
|
Performance of contract
|
Common law: substantial performance
UCC: perfect tender rule - Option to cure before deadline - Post-deadline: see prior dealing Payment: - Buyer may tender check - Seller may refuse - Buyer has reasonable time to tender cash |
|
Excuse for performance
|
- UCC 2: reject delivery
- Installment: substantial impairment - Common law: substantial breach - C/L: late in time not material - C/L: K may specify time essential - Impossibility - Condition not satisfied - Subsequent agreements * Recission * Modification * Accord and satisfaction * Novation - Anticipatory repudiation - Inadequate assurance |
|
UCC 2 rejection of goods
|
- If not perfect tender, buyer may reject
Accepted: - Express acceptance - no objection with opportunity to inspect - Revocation of acceptance if: * Latent defect * Substantial impairment of value - Remedy for rejection/revocation: * Refund * Return * Damages |
|
Installment contract
|
- No rejection for imperfect tender
- Rejection only if substantial impairment |
|
Common law breach as excuse of contract performance
|
- Substantial performance: must perform
- Material breach: excused - Divisible contract: material breach regarding each part |
|
Impossibility as excuse of performance
|
- Destruction of property essential for K
* Common law: excuse * UCC 2: risk of loss; earmarked goods - Death of essential persons - Governmental policy change - Primary purpose known to promisor |
|
Anticipatory repudiation as excuse of contract performance
|
- It equals material breach
- It may be retracted if not relied on |
|
Inadequate assurance as excuse of contract performance
|
- It works as anticipatory repudiation
- It equals material breach - May not demand specific assurance - May not used to reform contract |
|
Unsatisfactory conditions as excuse to contract performance
|
- Conditions:
* Precedent * Concurrent * Subsequent - Satisfaction condition: * Objective as default * Taste, personal service: subjective - Condition must be fully satisfied - Non-cooperative party cannot use this - Protected party may waive - Protected party may retract waiver not relied |
|
Recission as excuse for performance
|
- Both party partially performed
- Both party consent - No consideration if either fully performed |
|
Accord and satisfaction as excuse for performance
|
- Accord: future performance as satisfaction
- Performance: performed |
|
Novation of contract
|
Assignment and delegation with other party's consent
- Releases original party - New party has obligation |
|
Increase of costs of performance
|
MBE: Not good reason
NY: Depending on amount and % |
|
Contract remedy
|
- Specific performance
- Reclaim of delivered goods - Damages * Punitive damages not allowed * Liquidated damages * Expectation damages * Incidental damages * Consequential damages * Avoidable damages |
|
Contract specific performance
|
- Valid, enforceable contract
- Monetary damages inadequate - RE: inadequate - Goods: unique; proper circumstances - Service: * no specific performance * injunction proper - [Sort of remember: also requires mutual; the opposing party must be able to fully enforce his right.] |
|
Reclaim of delivered goods
|
- Usually cannot reclaim
Exceptions: - misrepresentation within 3/m of delivery - Notice after delivery: * insolvency upon delivery * demand return within 10 days |
|
Liquidated damages
|
C/L: valid if at time of contract:
* Difficult to assess damages * Reasonable forecast of damages * Not punitive (i.e. flexible) UCC 2: valid if 3 above * At time of contract * At time of breach |
|
Expectation damages
|
- C/L: difference between
* Expected value * Actual value - UCC 2: Buyer * Cover - K: good faith * market - K: bad faith * expected value - actual value if retains - UCC 2: Seller * K - resale: good faith * K - market: bad faith * Lost profit: lost volume dealer * K price: cannot resale |
|
Consequential damages
|
- Only reasonably foreseeable to D
|
|
Avoidable damages in K
|
- Damages reduced by avoidable amount
Personal service: - Same location - Same job |
|
Entrustment (3rd party)
|
- Owner entrusts to merchant
- Merchant deals with goods of same kind - 3rd party BFP - Owner has no claim against BFP |
|
Intended beneficiary
|
May not modify if vested, except:
- Contract provides modifiable - vested: beneficiary known and relied - Promisor L to intended beneficiary - Promisor has same defense - Promisor L to promisee - Promisee L to creditor beneficiary |
|
Delegation of K duty to 3rd party
|
- Does not require consent from promisee
- Promisee may sue: * Delegate (if for consideration) * Delegaing party - Delegation prohibited: * K prohibits delegation * K prohibits assignment * Service: rely on skill or reputation |
|
Assignment of rights to 3rd party
|
- No consent required
- May be gift or for consideration - No assignment if: * K prohibits assignment (damage) * K makes assignment void * Substantially changes obligor's duty - Obligor L to assignee if notified - Obligor has same defense |
|
Modification of assignment of K
|
Gift assignment:
- Later assignment revokes prior ones - NY: irrevocable if in signed writing Assignment for consideration: - First prevails against later assignments - Prevails against gift assignments Later assignment w/ consideration prevails: - Gets payment first - Gets judgment first |
|
Contract applicable law (contract)
|
- Most important part of subject matter
- Sale of Goods: UCC - Lease of Goods: UCC in NY - Other: Common law |
|
Relevance (evidence)
|
- Increase or decrease probability
- General balance exception - Policy exceptions - Character evidence exception - Hearsay exception |
|
Exception of balance for relevant evidence
|
Probative value outweighed by pragmatic concern
- Undue prejudice - Misleading (confuse issues/misleading facts) - Waste of time * Cumulative * Waste of time * Undue delay |
|
Policy exceptions for relevant evidence
|
- Liability insurance
- Subsequent remedial measures - Settlement discussion - Plea bargains - Offer to pay medical exp |
|
Liability insurance (evidence)
|
Liability insurance is irrelevant for fault
Relevant for: - Ownership - Control - Impeachment |
|
Subsequent remedial measures (evidence)
|
SRMs are irrelevant to prove:
- Defective product - Negligence - Lack of warning - Wrongful conduct SRMs are relevant: - Ownership - Control - Feasibility of alternative - Impeachment NY: SRM admissible for manufacturing defect in product liability case (Admissible for Manufacturing Defect: AMD) |
|
Settlement discussion (evidence: relevance)
|
Settlement discussion not admissible:
- Disputed claim (no need to formally sue) - Settlement offer - Settlement - Settlement discussion - To prove liability - Admissible for impeachment |
|
Offer to pay medical exp (evidence)
|
Inadmissible:
- Offer to pay medical expenses - prove liability - No need of dispute - Only about offer, not discussion |
|
Plea bargain in subsequent criminal or civil action (evidence)
|
Inadmissible for ALL purposes:
- Plea nolo contendere - Withdrawn pleas - Plea offers - Plea discussions NY: withdrawn pleas admissible for CIVIL cases All: accepted pleas admissible |
|
Character evidence (definition)
|
Evidence about past act or propensity to prove conformity with the propensity: inadmissible
Admissible for non-propensity purposes: - MIMIC - Habit - Essential element (civil; no criminal) True character evidence exceptions in criminal case - Must give pre-trial notice of use character evidence |
|
MIMIC character evidence
|
Motive
Intent Absence of mistake Identity Common scheme or plan |
|
Essential element exception of character evidence
|
Civil
- Defamation - Negligent entrustment Criminal: none |
|
Habit exception of character evidence
|
Elements:
- Specificity - Frequency MBE: business routine and personal habit NY: only applicable to business routine |
|
Character evidence for propensity
|
MBE: prior sexual misconduct can be used in sexual offense crimes
Rape victim: - Promiscuity inadmissible - Sex with D: show consent - Sex with others: show physical evidence - NY: prostitution conviction within 3 years Propensity: - D may use character evidence - P may rebut with character evidence - MBE: D may show victim first aggressor - D may show knowledge of prior violence of victim |
|
Form of character evidence
|
MBE: reputation and opinion
NY: only reputation Specific facts: - Only allowed in cross-exam - Cannot show by extrinsic evidence |
|
Hearsay definition
|
Elements:
- Out-court statement - By a person (not machine) - Show truth of the stated matter Inadmissible unless exceptions apply |
|
Party admission exception to hearsay
|
- Statement of a party
- Used against that party - Not about truth, but estoppel - Plea bargain is party admission - Include agents/employees within scope * NY: requires speaking authority Admissions by co-conspirators: - Inadmissible if after-the-fact - During crime, in furtherance: admissible |
|
Unavailability for hearsay
|
- Illness or death
- Privileged - Out of jurisdiction - MBE: witness forgetful - MBE: witness stubborn - NY: 100 miles away - NY: declarant is doctor |
|
Statement against interest exception to hearsay
|
- Declarant unavailable
- Pecuniary or penal interest - Embarrassment/disgrace insufficient - Requires corroboration in criminal case |
|
Requires corroborative evidence
|
- Statement ag interest hearsay in crim
- NY: Unsworn witness (children under 9) - NY: Current sense perception - NY: Current physical/mental (intent) proving third party |
|
Dying statement exception to hearsay
|
- Declarant unavailable
- Declarant believes impending certain death - Statement about cause MBE: civil case and homicide NY: only homicide |
|
Former testimony exception to hearsay
|
- Declarant unavailable
- Formal proceeding or deposition - Under oath - Party against whom have same incentive and opportunity to cross (substantially same context) NY: in criminal case. - Require: prior criminal case testimony - Suppression hearing not sufficient. |
|
Forfeiture exception to hearsay
|
- Party deliberately and wrongfully
- Made declarant unavailable MBE: POE standard NY: Clear and convincing |
|
Current sense perception
|
- Report by the declarant
- Event ongoing (or immediately after) NY: requires corroborative evidence |
|
Current physical/mental condition
|
- Physical condition
- Mental condition (including future intent) - Not memory NY: - Report of symptoms to lay person: * declarant must be unavailable - Current intent to prove third party: * Declarant must be unavailable * Corroborative evidence required to convict |
|
Excited utterance
|
- Startling event
- Declarant still under pressure |
|
Statement to obtain medical treatment exception to hearsay
|
- Statement to doctor
- For diagnosis and treatment - Past/present symptoms - General cause of conditions - Not including fault - Not including identity - Domestic violence: include identity - NY: statement to trial expert: not applicable - Also consider attorney-client privilege |
|
Business record exception to hearsay
|
- Business or governmental authority
- Routinely prepares such record - Record prepared during time of event - Include observations by *employee* - MBE: include employee conclusions - MBE: not police report conclusions - NY: not include conclusions - Witness statement: double hearsay Foundations: - Witness - Affidavit - NY: affidavit only in civil case for business record of third party |
|
Non-hearsay purposes
|
- Impact on listener
- Insanity of declarant - Verbal act (words are operative) - Impeachment purpose |
|
Witness' own prior statement exception
|
- Identification statement
- Made at the earlier time - Only usable by witness herself MBE: Prior inconsistent statement - Made in formal proceeding under oath - Inconsistent - Can use for impeachment - Can use for substantive truth MBE: Prior consistent statement - Witness accused of lying motive - Made prior to motive arises - Consistent - Can use for rehabilitation - Can use for substantive truth |
|
Past recollection recorded exception to hearsay
|
- W has personal knowledge
- W cannot remember (not jogged) - Statement prepared or adopted by W - Made around time of event w/ fresh memory - W attest to the accuracy - May read to jury - MBE: opponent may introduce to evidence - NY: both party may introduce to evidence |
|
Judicial notice (evidence)
|
Judicial notice is treating something as true without presenting to the jury.
- Common knowledge - Facts easily verifiable through unquestionable source - Can be taken at any time - No need to actually verify - Rebuttable presumption in criminal case - Conclusive in civil case - Judicial notice for other state's law |
|
Real evidence
|
[Items, things, etc.]
Foundations: - Unique item: personal knowledge - Generic item: chain of custody - Chain must be substantially unbroken - No need to be perfect - If condition is important, real evidence must in substantially the same condition |
|
Authentication of document evidence
|
- Personal knowledge of execution
- Solicited reply doctrine - Handwriting by familiar lay person - Handwriting by expert - Handwriting by jury comparison - Ancient document doctrine - Self-authenticated documents |
|
Ancient document doctrine
|
- MBE: 20 years; NY: 30 years
- Found in the place expected - No facial suspicion of tampering |
|
Self-authenticated documents
|
- Newspaper and periodicals
- Official publications - Trade inscriptions - Acknowledged documents - Business records - Commercial paper - Certified public documents Business record: - Certified by person who knows preparation - Made normally and around time of event |
|
Best evidence rule
|
Document is writing:
- Content is operative - W' knowledge based solely on reading Best evidence: - produce original - produce duplicate - provide excuses or escapes |
|
Original and duplicate (documentary evidence)
|
- Original include print-outs
- Duplicate: identical machine copy - Not if handwritten copy - Without facial suspicion - NY: duplicate in regular course of business |
|
Escapes or excuses for best evidence rule
|
Excuses:
- Lost or cannot find with DD - Destroyed without bad faith - Cannot obtain with legal process Escapes - Summary for voluminous docs - Collateral documents - Certified copy of public documents |
|
Privileges (evidence)
|
- Applies only to communication
- Applies when confidential - Requires status-relationship - Usually have specific purpose - May be waived by holder - Not to: * Underlying facts * Physical evidence * Pre-existing documents |
|
Waiver of privileges (evidence)
|
- 3rd party present in communication
- partial disclose requires full disclosure - client sues professional - Holder puts in issue - FUTURE CRIME OR FRAUD Mistake disclosure not waiver: - reasonable steps to protect - reasonable steps to rectify mistake |
|
Federal privileges (evidence)
|
- Spouses
- Spousal immunity - Attorney-client - Clergyman-penitent - Psychiatrist-patient |
|
NY Privileges (evidence)
|
- Attorney-client
- Clergyman-penitent - Spouses (not immunity) - Doctor-patient - Social worker-client - Reporter-source |
|
Attorney client privilege (evidence)
|
- Between attorney and client
- For obtaining legal advise - Communication/confidential - Attorney includes representatives - Client includes prospective - Client includes employees Lost privilege: - If client instructs attorney to disclose - Between joint clients |
|
Doctor-patient privilege (evidence)
|
- Between doctor and patient
- For medical treatment - Confidential - Communication MBE: only applies to psychiatrist-patient |
|
Spouses communicative privilege (evidence)
|
- Between spouses
- Married at communication - For any purposes - Confidential - Communication - Intended to protect intimacy - Cannot be waived by one spouse alone - No privilege for destroying family union |
|
Spousal immunity (evidence)
|
- Only available in federal court
- Only for criminal case - Testimony against the other - Married at time of trial - Can be waived by one spouse - No privilege for destroying family union |
|
Learned treaties (evidence)
|
Foundation (reliable):
- Judicial notice - Expert witness - Admissions Use: - Exam/cross-exam - Read to jury - NOT introduce to evidence NY (not for substance), allowed only: - Direct: show basis - Cross: credibility if * relied on by opposing expert * admitted by opposing expert |
|
Lay person witness (evidence)
|
- Observation
- Simple conclusion from direct observation * Smell * Angry * Sobriety * Handwriting * Voice - Simple conclusions must be helpful |
|
Dead Man's Act
|
No federal DMA
States have DMA (including NY): Not testify if: - Personally interested in outcome - Testifying against dead party - Transaction and communication - Civil action Waived: - Successor put in issue - Successor waived - Dead party's testimony introduced NY: accident based on negligence - May testify about circumstances - Not testify about communications |
|
Writing in aid of memory (evidence)
|
- allowed to revive memory
Other party: - May introduce to evidence - May inspect - May use on cross |
|
Expert witness (evidence)
|
- Qualification of witness
- Specialized knowledge is helpful - Reliable - Proper basis |
|
Basis of expert witness (evidence)
|
Proper basis include:
- Expert's personal knowledge - Admissible evidence in record - Inadmissible evidence (hearsay) commonly relied on by experts in the same fields - Inadmissible basis may not be disclosed - Opponent may disclose basis |
|
Reliability of expert opinion (evidence)
|
- Reliable method
- Reliable application MBE test: - Method tested? - Known error rate? - Peer reviewed? - Generally accepted by experts? NY test: - Generally accepted by experts? |
|
Impeaching witness (evidence)
|
Intrinsic/extrinsic: direct attack
- Inconsistency - Bias - Misconception Indirect attack on character - Character witness (extrinsic) - Prior crimes (extrinsic allowed) - Prior misconducts (intrinsic) Witness must be able to reply: - MBE: flexible - NY: must raise in cross |
|
Prior crimes as impeachment (evidence)
|
MBE: by type of crimes
- Veracity: allowed - Non-veracity: * allowed: felony within 10 years * balance prejudice and probative value * misdemeanor not allowed NY: by type of witness - Witness: allowed - D witness: * balance prejudice and probative value |
|
Prior misconduct as impeachment (evidence)
|
MBE: veracity
NY: mental turpitude - Good faith requirement - May ask in cross (intrinsic) - Stuck with answer |
|
Rehabilitation (witness)
|
- No bolstering evidence
- May use prior consistent statement - May use character witness MBE: prior consistent statement can prove substance |
|
Confrontation 6th Amendment (evidence)
|
- Criminal case
- Testimonial witness Satisfied if: - D forfeited - D had opportunity - D has present opportunity Not admissible if witness has privilege not to testify Police report (business record): - Testimonial if for prosecution - Not testimonial if for emergency (911 call) - Business record not testimonial - Grand jury testimonal |
|
Photo and video authentication (evidence)
|
If illustrative of witness testimony:
- No need to authenticate - Not introduced to evidence If standing alone: - Device working properly - Device properly installed - Chain of custody for tapes |
|
State rule applicable in federal diversity cases
|
- Burden of proof
- Dead Man's Act - Privileges |
|
Witness competancy (evidence)
|
- Personal knowledge
- Testifying live - Swear oath * Understands duty to tell truth * Promises to tell truth NY: Children < 9 may testify unsworn NY: not convict solely on unsworn testimony |
|
Leading questions (evidence)
|
- direct: not allowed (DNA)
- cross-examination: allowed Exception for direct: - Forgetful witness - Opposing party - Stubborn witness - Introductory question |
|
Cross examination (evidence)
|
Scope:
- Facts raised in direct - Witness credibility If cannot cross-examine, struck testimony |
|
Ultimate issue opinion (evidence)
|
Opinion is admissible even if addressing ultimate issue.
Criminal case: - Inadmissible if proving state of mind |
|
Impeaching own witness (evidence)
|
MBE: freely (no voucher rule)
NY: voucher rule - Not impeaching own witness - Criminal case: only if directly damaging - Required form for inconsistent statement: * Writing signed by witness * Testimony under oath |
|
Preliminary questions (evidence)
|
Judge:
- Admissibility (may have jury around) - Qualification of expert Jury: - Conditional relevance - E.g. authenticity of documents |
|
List of intentional torts
|
Battery, assault, false imprisonment, IIED, trespass, conversion, trespass to chattel.
|
|
Intent (intentional tort)
|
Desire to do something.
Incapacity is not a defense (i.e. insane person could do intentional tort) Insanity may negate the content of the intent (e.g. not intend to hurt a person). |
|
Tort battery elements
|
Intent
Contact with P's person Harmful or offensive Offensive is reasonable person standard. No need to touch with D's person or at the same time (e.g. posion). Things connected to P's person is also included. |
|
Tort assault elements
|
Intent
Create apprehension of Immediate battery -- Apprehension is not fear. Requires P to know. Words alone insufficient. Words (conditional, future) may negate intent. |
|
Tort false imprisonment
|
- Intent
- Confine someone - Bounded area - P knows or is harmed - May be act or omission (with duty) - May be threat - No reasonable escape - Escape not reasonbly known to P - Dangerous/humiliatory escape unreasonable - Concealed escape not known to P |
|
Intentional infliction of emotional distress
|
Intent or reckless
Outrageous Severe emotional distress - Outrageous: beyond all boundary of decency tolerated by a civilized society. - Hallmarks: * elderly, children, pregnant women * repetitive or continuous * inn keeper or common carrier - Emotional distress must be severe (mild irritation not count). |
|
Tort trespass
|
Intent
Physical invasion Of another's real property - Physical intrusion required (light, sound, noice, etc) - Throwing in object (even innocent or benign) is trespass. - No need to know on other's land (buy a map) - Includes air above and soil below |
|
Tort conversion/trespass to chattel
|
Intent
Intereference with Possession of personal property - Personal property: everything other than building and land. - Severe intereference: conversion - Mild interference: trespass to chattel Conversion: fair market value Trespass to chattel: damages/rent * NY: BFP or stolen goods not converter |
|
Defense to intentional torts
|
- Consent
- Necessity - Self-defense |
|
Tort consent defense
|
Consent: express/implied
Consent must be voluntary - Not due to fraud or duress Consent requires capacity - Intoxciated, insane or infant cannot consent Consent has scope - Doctor: adjacent parts (has consent) and remote parts (no consent) |
|
Tort self-defense
|
- Proportional
- Simultaneous - Reasonable belief of harmful act towards victim (i.e. reasonable mistake is fine) Deadly force: - Only against deadly force - not defending property NY: must retreat before deadly force. Exception: dwelling; cannot safely retreat Exception: police officer on duty |
|
Tort necessity defense
|
Only defense to tort against property (trespass/conversion)
Public necessity: absolute defense; some crisis Private necessity: partial defense. - L for damages - NL for punitive or nominal damages - May stay as long as condition remains. |
|
Tort defamation (MBE)
|
False statement
Identifying P (P alive) Adversely affects reputation Publication due to some fault Damages (for some) - Statement allude to factual basis - Publication is de minimis (any 3rd party reasonably foreseeable to hear) - Some fault with publication (e.g. negligent) - Damages required for slander not per se - Damages presumed for libel and slander per se |
|
Tort defamation (define libel)
|
Libel is defamation where false statement is fixed to tangible media.
|
|
Tort defamation (slander)
|
Slander is defamation where false statement is not fixed to tangible media.
|
|
Per se category of slander
|
MBE (4)
- Professional/business - Crime of moral turpitude - Chastity of women (promiscuity no need) - Loatham disease (STD, leprosy) NY: add - Homosexuality |
|
NY defamation damages requirement
|
Damages not required for:
- Libel per se - Libel not pro quod - Slander per se Damages required for: - Libel pro quad and not per se - Slander not per se |
|
NY libel pro quod
|
Libel that requires extrinsic evidence to assess impact of reputation
|
|
Defamation 1st Amendment (low value speech)
|
If public concern:
- P must show falsity Economic damages: - Public figure P show actual malice - Private figure P show negligence Presumed/punitive damages: - Private figure P show actual malice If NOT public concern: - Private figure no need actual malice for punative/presumed damages. |
|
Privacy tort list
|
Misappropriation (Fed and NY)
Intrusion (Fed only) Disclosure (Fed only) False light (Fed only) |
|
Privacy tort: appropriation
|
- Use of name or image
- For commercial purposes - Newsworthiness exception (limits the tort to ads. or promotions) - NY: newsworthiness exception interpreted broadly Recognized in NY |
|
Privacy tort: intrusion
|
- Invasion to seclusion
- Reasonable expectation of privacy - Objectionable to average person - Trespass not required * Not recognized in NY. |
|
Privacy tort: disclosure
|
- Disclosure
- Private, confidential info - Objectionable to average person - Not double world scenario - Newsworthy exception (scandal exposure) * Not recognized in NY |
|
Private tort: false light
|
- Widespread dissemination
- False statement about P - Objectionable to average person - No need to be defamatory - Reasonable mistake not defense * Not recognized in NY |
|
Defamation defense
|
- Consent
- Truth - Privilege |
|
Privilege defense to defamation
|
Absolute:
- Spouse - In court speech by actors Partial privilege: - Situation of candidacy - Relevant to topic - Reasonable mistake |
|
Defenses to privacy torts
|
- Consent: to all 4
- Newsworthyness: to false light and disclosure |
|
Tort fraud
|
- Misrepresentation
- Material (tend to induce) - Intent to induce reliance - Actual reliance by P - Damages |
|
Misappropriation of trade secret
|
- Trade secret
- Acquire through improper method Trade secret elements: - Business advantage - Kept as secret - Reasonable protection |
|
Negligent misrepresentation
|
- Misrepresentation
- Material - Duty - Causation - Damages |
|
NY prima facie tort
|
Basket tort
- Damages (Harm) - Intent to do harm |
|
Intentional interference with business relationships
|
- Contract or expected relationship
- D knows K or relationship - Intent - Intereference - Damages - Defense: advisory role of D - Party to K may sue under K or tort |
|
Elements of negligence
|
- Duty
- Breach - Cause in fact - Proximate cause - Damages Defense: - Contributory negligence - Assumption of risks - Comparative negligence |
|
Tort negligence (duty)
|
Duty to foreseeable P:
- rescuer is foreseeable - physical distance is key Content of duty: * the standard of care of that of a reasonable prudent person * under similar circumstances - Raise if special knowledge/skill - Lower if physical disability - Knowledge of peculiar fact relevant - 6 Special categories of duty |
|
NY duty regarding unborn child
|
Impact on mother
- If born with defect: child can sue - If unborn: fetus cannot sue Misdiagnosis of birth defect: - Sue for increased care costs - No L for normal costs Botched contraception: - NL because joy > costs |
|
Duty content children
|
- Children under 4 has no duty
- Children 4-18: subjective duty * Intelligence * Experience * Age - Adult activities: adult duty |
|
Duty content customs
|
- Professionals uses custom
- Average pro in community - Expert witness required - Specialist for specialist - City for city |
|
NY consent for doctors (duty to inform)
|
Duty of doctors to inform the risks involved in medical procedure.
NY Exceptions. No duty to inform if: - P refuses information - P is incapacity - Professional judgment: more harm - Common risks |
|
Duty content: premises liability
|
- No duty to unknown trespassors
- Default duty to all others for activities - Duty for conditions: * Known/anticipated trespassor: man-made, concealed, serious, known * Licensees: known concealed * Invittees: should known, concealed - Either warn or fix - Attractive nuisance doctrine - Firefighter: not for inherent risks |
|
Attractive nuisance doctrine
|
- Artificial condition
- Known or should know children frequent in vicinity - Conditions that children cannot understand risks due to age - Precaution if benefit > costs * Need not be injured due to thing that lures him to land. |
|
NY premise liability
|
Default duty for all; but consider different types of entry in breach
|
|
Duty content: statutes
|
Statutory standard applicable:
- P within class of protected person - Injury within class of protected harm - Statute is criminal or regulatory - If applicable, violation = breach - No assumption of risks defense for protected P - NL if compliance more dangerous - NL if compliance impossible * NY: local ordinance not per se. |
|
Duty content: omission
|
- No general duty to act/protect
- Duty if: * Close relationship * D put P in danger - If rescue, have duty - NY: NL for simple negligence if rescuer is health professional |
|
Negligent infliction of emotional distress (NIED)
|
- D is negligent (duty-breach)
- P has severe emotional distress - P has some physical harm One of three categories: - Near miss: * P is in zone of danger - Bystanders * D hits close relative * P witness simultaneously * NY: P is in zone of danger - Close relationship so likely for harm * Disclosure by doctor of patient info |
|
Breach of duty (tort)
|
Discuss reasonable prudent person
Per se: statutory standard and violation Res ipsa: makes it triable - Type of harm normally with negligence - Negligence attributable to D - (Within D's exclusive control) |
|
Cause in fact (tort)
|
- But for cause
- Merging cause: either one - Uncertain attribution: shift burden |
|
Proximate cause (tort)
|
D liable for foreseeable harms
Foreseeable if direct cause Foreseeable for indirect cause: - Rescuer botch - Doctor botch - Subsequent harm - Reaction of victims |
|
Damages (tort)
|
Physical or economical
Pain and suffering - Eggshell skull rule: actual damages Emotional distress: NIED |
|
Contributory negligence defense
|
Common law tradition: bars negligence liability completely
|
|
Comparative negligence defense
|
Pure comparative negligence: P may recover even if P>50% fault
Partial/modified comparative negligence: P can recover only if D>=50% fault |
|
Assumption of risks defense to tort
|
P must:
- Voluntarily assume - Appreciate the risks * No defense if P is protected class under statute |
|
Nuisance
|
- D intereferences P's enjoyment of RE
- Unreasonable intereference - Balance of benefits between P/D - Public nuisance: only if P has peculiar harm - Sensitivity of P: NL - Special business of P: NL |
|
Strict liability tort
|
- Wild animals
- Domestic animals with known vicious propensity - Ultra-hazadous activities - Product liability |
|
Product liability elements
|
- Strict duty to make safe
- Breach (design/manufacture defect; defective warning) - Causation - Damages |
|
Strict liability: strict duty element
|
- D is a merchant (incl. commercial lessor)
- Everyone in chain of distribution L - Foreseeable use (inc. misuse) - P did not alter the products - Presumed no alter if bought new - Not presumed if second-hand |
|
Defense to strict liability tort
|
Comparative/contributory negligence
|
|
Ultrahazadous activity
|
- Risks of severe harm
- Precaution impossible - Uncommon in the community |
|
No fault insurance: basics
|
- Owner, driver, passenger, pedestrian
- Reover in small stake cases directly - NY: $15,000 - Go to the car owner's insurance - Out-state accidents also covered - Only personal injury - Not for pain & suffering - Not property damages |
|
Not covered by no fault insurance
|
- Drunk driving
- Fleeing felons - Race or speed test - Stolen cars |
|
P may still sue despite no fault insurance
|
- Serious injuries
* Lost of limbs * Serious disfigurement * Disability - Beyond basic economic damages (>$50,000) * Medical bill * Lost salary * Misc costs of $25/day |
|
Finder of personal property
|
Abandoned (intent + act): finder gets title
Loss/mislaid (no intent + act): - Owner retains title - Finder must return or conversion - Depending on value: Finder gets title: - value <$20: finder diligently find 1y - value > $20: submit to police * 3m-3y depending on value * not reclaimed --> finder claim title |
|
Gift causa motis
|
- Donor: face certain, impending death
- Donor must die - Donee cannot die eariler |
|
Gift inter vivos
|
- Intent to give TITLE
- Acceptance (no rejection) - Delivery - Small item: physical delivery - Large item: symbolic delivery |
|
NY gift delivery requirements
|
- 1st party check: upon cashing
- 3rd party check: upon endorsement - Share certificate: no need registration - Through agent: to donee's agent |
|
Liens on personal property
|
- General lien: release one item does not release lien
- Specific lien: release one item releases lien |
|
Bailment (bailee duty)
|
Bailment: delivery of possession to bailee for specific purposes.
Bailee: duty to protect the property - Ordinary items included - Extraordinary items not included - Safe-deposit: everything included Car parking: giving key is bailment Bailee may limit liability but cannot disclaim completely. |
|
Worker's compensation
|
- Workers can recover for injury within scope
- No pain, suffering, punitive damages - No longer sue employer (barred) - Worker may sue third party - Third party may not sue employer for contribution (except for grave injury) - Employer buys the insurance - Not cover independent contractor - Not cover teachers/NGOs - Not cover household employees Exception: - Self-inflicted - Intoxciation on work - Voluntary participation in sports Scope: distinguish horse play and out-scope |
|
Equitable relief in tort
|
- Tort established
- Protectable rights infringed (easy) - Remedy at law insufficient - Injunction is enforceable - Balance of harm (D) and benefit (P) - No defense to injunction applies |
|
Equitable relief in tort (priliminary)
|
- Irreparable harm to P without
- Probable of success on merit |
|
Defenses to equitable relief in tort
|
- Laches: P delays and D changes position
- Unclean hands of P - First amendment * No injunction for media coverage even if to prevent undue prejudice |
|
Loss of consortium tort
|
- Loss of society
- Loss of service - Loss of sex |
|
Tort vicarious liability
|
- Employer-employee
- Owner-driver - Merchant-manufacturer - Parent-child |
|
Vicarious liability of employer
|
- Within the scope of work
NL for intentional tort except - Use of force within scope - Nature tends to friction with others - Intends to help employer NL for independent contractors except: - Land owner to invitee when IC on site |
|
Vicarious liability parent to child
|
Parent NL for child tort except:
- NY: to modest amount $5,000 |
|
Vicarious liability owner to driver
|
L if driver runs errand
NY: Permissive use state - L if driver has permission - Permission presumed - NL for car lessor |
|
Tort indemnification
|
- May arise out of contract
- May arise due to relationship: * Vicarious liability * Merchant from manufacturer Indemnification not barred by settlement 6 years SOL from payment of judgment |
|
Tort contribution
|
D may go after TPD for contribution:
- TPD breached duty of care - TPD contributed or aggravated damage - Not after employer unless grave - MBE: D not intentional or reckless - NY: D may be intentional/reckless D may go after TPD even P barred Settlement bars contribution Contribution limited to equitable % of TPD |
|
JSL liability
|
- Judgment against each D for full amount
- P may go after any for full amount - NY: Article 16 Limitations Settlement reduces amount by larger of: - Settled amount - % of settled D's fault |
|
NY Article 16 Limits to JSL
|
Applicable:
- Non-economic damages - Personal injury Not applicable: - Economic (medical exp; loss income) - Property damages Limits: P<=50% fault is not JSL Except: - Intentional/reckless: JSL - Drivers (except police): JSL - Ultra-hazadous activity: JSL |
|
Elements for crime
|
- mens rea
- actus reus - causation [note concurrent principle for larceny/burglary] |
|
Form of actions (actus reus)
|
Commission
Omission |
|
Commission for actus reus requires
|
Only the volitional act of D. Not sufficient:
- Pushed/grabbed - Reflex/convulsion - Sleepwalking |
|
Ommission for actus reus requires
|
- Duty to act
- Ability to act - Knowledge of the duty |
|
Duty to act for criminal purposes arises out of
|
- Law
- Contract - Status relationship - Voluntary assumption of care that prevented help from others - D created the dangerous situation in the first place |
|
Common law mens rea (4)
|
Malice
Specific intent General intent Strict liability |
|
Common law specific intent crimes
|
- Assault; D1-Murder
- Larceny, embezzlement, false-pretense, forgery, ROBBERY - Burglary - Solicitation, attempt, conspiracy |
|
Common law malice crimes
|
Murder
Arson |
|
Common law general intent crimes
|
battery
kidnapping false imprisonment sex assault |
|
Common law strict liability crimes
|
Welfare crimes (selling to minor)
Statutory rape |
|
Criminal cause in fact
|
But for cause
Acceleration of result |
|
Criminal proximate cause
|
- Intervening factors would cut
- Eggshell victim would not cut |
|
Common law accomplice elements
|
- Encourages and Aids
- Specific intent that crime be committed - no defense to accomplice |
|
Common law accomplice vicarious liability
|
- L for all crimes committed by principal aided or encouraged
- L for all foreseeable crimes committed by principal |
|
Common law withdrawal defense for accomplice liability
|
- Encourages: discourages
- Aids: take substantial steps to prevent the crime from being committed |
|
NY accomplice elements
|
- Aids or encourages the conduct
- Intends that the crime be committed - No defense for accomplice |
|
NY criminal facilitation
|
- Knowledge that crime be committed
- Aids or encourages the conduct |
|
NY defense of withdrawal from accomplice liability
|
'Voluntary and complete' withdrawal
Both aids/encourages: take substantial step to prevent the crime from being committed |
|
Defenses to accomplice
|
- Mere presence
- Mere knowledge (NY: facilitation) - Victim of protected class |
|
Common law solicitation
|
- asking, inciting, counseling or urging another to commit a crime
- Specific intent that the crime be committed = Asking is the act targeted |
|
Common law conspiracy elements
|
- Agreement (2 or more) to commit a crime
- Specific intent to agree - Specific intent to accomplish the objective - Overt act (preparatory is OK) |
|
Common law vicarious liability for consiprator's crimes
|
- L for all crimes committed by co-conspirators in furtherance
- L for all foreseeable crimes committed by co-conspirators |
|
Common law withdrawal from conspiracy
|
One cannot withdraw from 'conspiracy.'
- Still L for past crime committed by D and co-conspirators - But no longer liable for crimes committed by other co-conspirators after withdrawal |
|
NY withdrawal from conspiracy
|
It is an affirmative defense if:
- Withdrawal is due to change of heart - Withdrawal is complete and voluntary (prevent the crime from happening) |
|
Common law requirements for # of D for conspiracy
|
- Requires 2
- Wharton's rule: requires 1+ (# required by underlying crime) if # is 2 or more |
|
NY law requirement for # of D for conspiracy
|
- Unilateral conspiracy is fine
- Wharton's rule |
|
Common law and NY attempt (minority MBE)
|
- Specific intent a crime committed
- Dangerously close to completion - Incomplete due to reason outside of control |
|
MPC attempt (majority MBE)
|
- Intention a crime be committed
- Substantial step towards commission corroborative of intent (preparation insufficient) - Incomplete for reason outside of control |
|
MBE impossibility defense to attempt
|
- Legal impossibility (to commit the underlying crime) is defense
- Factual impossibility is not defense |
|
NY impossibility defense to attempt
|
Neither legal impossibility nor factual impossibility is a defense
|
|
MBE merge of inchoate crimes
|
Merge: attempt, solicitation
Separate: conspiracy |
|
NY merge of inchoate crimes
|
Merge: attempt
Separate: solicitation, conspiracy |
|
Impossibility (of the underlying crime) defense to conspiracy
|
NEVER
|
|
NY vicarious liability for conspiracy
|
NO vicarious liability for crimes D does not participate in
|
|
Common law withdrawal defense to solicitation
|
NO
|
|
NY withdrawal defense to solicitation
|
NO
|
|
Common law withdrawal defense to attempt
|
No withdrawal defense
- MPC recognizes abandonment |
|
NY withdrawal defense to attempt
|
No, but:
Abandonment is affirmative defence: * Voluntary * Complete * Preventing commission |
|
Defenses to crimes
|
- Incapacity (age, insanity, intoxication)
- Mistake - Self-defense - Duress - Necessity - Entrapment |
|
Common law infancy defense for crime
|
- under 7: not liable
- 7-14: presumed not to be liable - >14: prosecute as an adult |
|
NY infancy defense for crime
|
- Under 13: not prosecute as an adult
- 13: only prosecute for 2nd degree murder - 14/15: prosecute for serious crimes against person/property - 16 and above: prosecute as an adult |
|
Common law insanity (M'Naughten)
|
Due to mental disease or defect, D lacks the *ability* to:
- understand the nature and *quality* of the act - appreciate the wrongfulness of the act |
|
Common law insanity (Duham)
|
D's action is a product from mental disease or caused by mental disease (not used anywhere)
|
|
Common law insanity (volitional test)
|
Due to mental disease or defect, D lacks the *ability* to:
- control the actions - conform the conduct with requirements of law |
|
MPC insanity
|
Due to mental disease or defect, D lakcs *substantial ability* to:
- appreciate the *criminality* of the act - conform the conduct with requirements of law |
|
NY insanity test
|
Due to mental disease or defect, D lacks *substantial ability* to appreciate:
- the nature and *consequence* of the act - the *wrongfulness* of the act |
|
Common law voluntary intoxciation defense to crime
|
- Only available to specific intent crime
- Requires high level of intoxciation to negate the specific intent |
|
NY intoxciation defense to crime
|
- Only if intoxication negates necessary mental status for a crime (intent/knowledge)
- requires high level of intoxciation |
|
Criminal case burden of proof
|
- Element of crime and defense:
* prosecution has burden of proof * standard: beyond reasonable doubt * Content: each element of crime * negate ordinary defense - Affirmative defense: * D has burden * Standard: POE * Content: establish affirmative defenses |
|
Common law mistake defense
|
Negates necessary mental status:
- Specific intent: any mistake - General intent and malice: reasonable mistake - Strict liability: mistake not a defense |
|
NY mistake defense
|
Negates necessary mental status:
- Intentional, Knowing, Reckless: any mistake - Criminal negligence: reasonable mistake - Strict liability: no mistake defense |
|
Mistake of law as defense
|
- In attempt: NL if
* commit an act which is not a crime * mistakenly believes that it is a crime - Not a defense in general: liable * mistakenly believe it is *not* a crime * in fact it *is* a crime |
|
Common law criminal self-defense
|
May use self-defense if victim reasonably believes that use of force is necessary to protect himself from immediate use of unlawful force against him.
- Simultaneous - Proportional - No retreat requirement - First aggressor rule - Reasonable mistake in defense |
|
NY criminal self-defense
|
May use self-defense if victim reasonably believes that the use of force is necessary to prevent unlawful use of force against him.
- Simultaneous - Proportional - Retreat requirement - First aggressor withdrawal requirement - Reasonable mistake in defense |
|
First aggressor rule in self-defense
|
First aggressor cannot use deadly force in self-defense.
- Common law exception: withdrawal *or* escalation - NY exception: withdrawal *even if* escalation |
|
NY rule of retreat in self-defense
|
- Must retreat before using deadly force
- No need to retreat if at dwelling (inside) - No need to retreat if cannot retreat safely - [No need to retreat for rape, kidnapping, burglary, robbery or arson] - No duty to retreat for police |
|
Use of force to prevent crime
|
- may use non-deadly force to prevent any crime
- may use deadly force only for felony risking human life |
|
Use of force to arrest
|
- Deadly force can be used only if:
* D tries to escape; * risking life or serious bodily harm to others - Non-deadly force can be used for any crime |
|
Self-defense against arrest
|
Common law: unlawful arrest
NY: no self-defense against arrest unless police uses excessive force |
|
Mistake in criminal self-defense
|
- Reasonable mistake is defense
- Unreasonable mistake is not defense (NY and common law majority) - Unreasonable mistake mitigates crime (MPC/minority) |
|
Common law criminal duress defense
|
Duress:
- Forced to commit a crime - Force of threat of force - Death or serious bodily harm - D or D's family - Not a defense to homicide |
|
NY criminal duress defense
|
Duress:
- Forced to commit a crime - Force of threat of force - Death or serious bodily harm - D or D's family - Defense to homicide |
|
Common law criminal necessity defense
|
D reasonably believes that the crime committed is necessary to prevent a greater harm.
- Not a defense to homicide |
|
NY criminal necessity defense
|
D reasonably believes that the crime committed is necessary to prevent a greater harm.
- It can be defense to homicide. |
|
Criminal entrapment defense
|
- Government initiates the crime (sting)
- Proof that D has no predisposition of committing the crime. |
|
NY Murder 1st Degree
|
D must be 18
Intentional killing One of the aggravating factors: Kill for hire Kill a judge Kill witness 2 or more victims Kill officer on duty Intentional kill during BRAKES |
|
NY Murder in 2nd Degree
|
- Intentional killing
- Reckless killing with depraved heart - Felony murder (killing is unintentional) |
|
NY Manslaughter 1st Degree
|
- Intentional killing with EED defense
- Intentional infliction of serious bodily harm resulting in death |
|
NY Manslaugther 2nd Degree
|
- Normal reckless killing
|
|
NY Criminally Negligent Homicide
|
- Criminally negligent
- Killing another |
|
Common law murder
|
Killing another with malicious aforethought
Malice: - Intent to kill - Intent to inflict serious bodily harm - Reckless with depraved heart - Intent to commit dangerous felony |
|
Common law 1st Degree murder
|
In many states:
- Premeditated or deliberate murder - Felony murder with serious underlying crimes |
|
Common law voluntary manslaughter
|
Murder with heat of passion after adequate provocation
- Provocation is reasonable - Actually provoked - No time to cool off - Actually not cooled off |
|
Common law involuntary manslaughter
|
Criminally negligent manslaughter
Misdemeanor manslaughter |
|
Common law battery (crime)
|
- General intent
- Unlawful application of force - Causes injury or offense |
|
Common law assault (crime)
|
- Specific intent
- attempted battery *OR* - creating apprehension (fear) - immediate battery - actual apprehension (fear) |
|
NY assault (crime) 1st degree
|
- Intent
- Unlawful application of physical force - causes *serious* injury - with weapon |
|
NY assault (crime) 2nd degree
|
- Intent
- Unlawful application of physical force - causes *serious* injury - NO weapon |
|
NY assault (crime) 3rd degree
|
- Intent
- Unlawful application of physical force - causes *injury* |
|
Common law false imprisonment (crime)
|
- General intent
- Confining another - Without consent |
|
NY False Imprisonment 2nd Degree
|
- Knowing restrain is unlawful
- Confining another - Without consent |
|
NY False Imprisonment 1st Degree
|
- Knowing confinement is unlawful
- Confining another - Without consent - Risks of causing serious bodily injury |
|
Common law kidnapping
|
- General intent
- Confining another - Without consent - Moving or concealing victim |
|
NY kidnapping 2nd Degree
|
- Intent or knowledge
- Abducting another |
|
NY kidnapping 1st Degree
|
- Intent or knowledge
- Abducting another One of three aggravating factors: - For ransom - For > 12 hours, to rape, injure or rob - Cause death of victim |
|
Common law and NY rape
|
- General intent
- Sexual intercourse - Without consent - Force, threat of force, or unconscious victim |
|
Common law statutory rape
|
- Strict liability
- Sexual intercourse - Victim under age of consent [MPC/minority: reasonable mistake is defense] |
|
NY statutory rape
|
- Strict liability
- Sexual intercourse - Victim under 17 - D over 21 |
|
Common law larceny
|
- Trespassory (wrongful)
- Taking; personal property; of another - Specific intent to retain permanent possession Note: - Another must have lawful custody - Later changed intent to retain: concurrent doctrine - No claim of right |
|
Common law embezzlement
|
- Taking; personal property; of another
- Specific intent to defraud - Within D's discretionary power and possession |
|
Common law false-pretense
|
- Obtain *title* of property
- Through intentional false statement - Specific intent to defraud False statement must be about past/current facts; not about future. [Writing check knowing no account] |
|
Common law forgery
|
- Write or alter an instrument
- So that it is false - Specific intent to defraud |
|
NY larceny (with degrees)
|
Including common law larceny, false pretense, embezzlement and larceny by trick.
1st Degree: 1 million 2nd Degree: 50,000 3rd Degree: 3,000 4th Degree: 1,000 Petit larceny: <1,000 |
|
Common law robbery
|
- Larceny (take property from another)
- In the physical presence of victim - Force or threat of force - Specific intent to steal Note: Threat of embarassment: blackmail Threat of future injury: extortion |
|
NY robbery 3nd Degree
|
Forcible stealing:
- Tresspassory take - Personal property of another - Force or threat of force |
|
NY Robbery 2nd Degree
|
Forcible stealing:
- Tresspassory take - Personal property of another - Force Plus: - Presence of another in aid - Stolen a car - Causing injury |
|
NY robbery 1st Degree
|
Forcible stealing:
- Tresspassory take - Personal property of another - Force Plus: - Causing *serious* injury - With weapon |
|
Common law arson
|
- Burning of building
- Malicious Not required anymore: dwelling; 'of another' Charring is sufficient (previously requires some pieces of building to burn) Must burn the building itself |
|
NY Arson 4th Degree
|
- Reckless burning of building or motor vehicle
- Start fire intentionally - Affirmative defense: D is owner |
|
NY Arson 3rd Degree
|
Intentional burning of building
|
|
NY Arson 2nd Degree
|
- Intentional burning of building
- D knew or should have known there is person inside |
|
NY Arson 1st Degree
|
- Intentional burning of building
- D knew or should have known there is person inside - Using explosive or incendiary device |
|
Common law burglary
|
- Break
- Entry - Dwelling - At night - Specific intent to commit felony Now: at night; break; felony; dwelling; etc are removed or modified |
|
NY Burglary 3rd Degree
|
- Enter or remain
- In a building - With intent to commit crime |
|
NY Burglary 2nd Degree
|
- Enter or remain
- In a building - With intent to commit crime 1 of 3 factors: - Dwelling - Causing serious injury - Weapon |
|
NY Burglary 1st Degree
|
- Enter or remain
- In a building - With intent to commit crime - D knows the building to be dwelling 1 of 2 factors: - Causing serious injury - Weapon |
|
NY menacing
|
- Specific intent to create fear
- of imminent battery - (cf. Common law assault) |
|
A year and a day rule
|
Death must result within 1 year and a day (historically) for homicide
Abolished now |
|
Common law felony murder
|
- Commission of felony (convicted)
- Felony is inherently dangerous - Felony is unrelated to murder - A non-felon is killed - During crime or immediate flight - Killing is foreseeable [Flight: ends at 1st temporary safe house] [Co-felon killed: not felony murder] |
|
NY Felony Murder
|
- Commission of BRAKES
- No need of conviction; sufficient evidence for commission is good - Intentional or unintentional killing - Non-felon is killed - During crime or in immediate flight - Killing is foreseeable - Non-slayer rule N/A BRAKES: Burglary Robbery Arson Kidnapping Escape Sexual assault |
|
NY Non-slayer rule
|
Defense of felony murder
- Not the person who kills - Not bringing a weapon - No reason to know a co-felon brought weapon - No reason to expect use of force that could kill |
|
NY 'Aggravated Homicide'
|
Any homicide with aggravating factor:
- Kill office in line of duty - Kill child under 14, D > 18, in cruel and wanton manner |
|
Common law possession crimes
|
Possession
- Actual possession - Dominion or control (constructive) |
|
NY Possession Crimes
|
- Controlled substance
- Weapon (loaded and operable) - Stolen property |
|
Search and Seizure (elements)
|
- 4th Amendment applies
- Search with warrant - Search without warrant - Admissibility of evidence obtained in unconstitutional search and seizure |
|
Elements to apply 4th Amendment to Search and Seizure
|
- Government Agent
- Reasoanble expectation of privacy |
|
Government Agent for 4th Amendment
|
- Publicly paid police
- Private citizens under the direction of police - Private police deputized with power to arrest - Public school principals |
|
Places expressly within 4th Amendment for expectation of privacy
|
Person, effect, papers, and house (including curtilage)
|
|
Places with no expectation of privacy for 4th Amendment search and seizure
|
voice, handwriting
account record open fields, view from air garbage, odor paint scrap |
|
Standards for reasonable expectation of privacy for 4th amendment search and seizure
|
Subjectively, actual expectation
Objectively, reasonable expectation |
|
Standing to challenge for 4th Amendment Search and Seizure
|
D's own constitutional rights must be impaired.
- D is owner, tenant of house - D, guest, re area D has access - D, owner of item, has reasonale expectation Note: - Temporary guests for business purpose has no expectation and no standing - NY: Driver/passenger has standing if possession of weapon is attributed to them |
|
Valid warrant search under 4th Amendment: elements
|
- Warrant is valid
- MBE: Good faith if warrant is invalid - Execution complies with warrant |
|
Valid search warrant requirement
|
- Probable cause
- Particularity - Neutral and detached magistrate |
|
Probable cause for search warrant
|
- MBE:
* a fair probability * contraband would be found in the searched area * under the totality of circumstances (POE) - Informant: anonymous allowed in MBE * No need to disclose basis of information * No need to demonstrate reliability of informant * No need to disclose identity of informant * "Common sense practical determination" - NY: all are required (higher standard) |
|
Affidavit requirement for MBE search warrant
|
- Hearsay is fine
- Affidavit must provide sufficient corroborative evidence for the magistrate to make a 'common sense practical determination' of probable cause |
|
Affidavit requirement for NY search warrant
|
Affidavit must show:
- Basis for the information - Veracity and reliaiblity of informant |
|
Particularity for search warrant
|
- Specify the area to be searched
- Specify the item to be seized |
|
Wiretap (surveilance) warrant
|
Affidavit must show, in particular:
- Crime - Conversation - Persons to the conversation - Time limit |
|
Other party agreed to wiretap
|
D assumes the risk that other party may agree; no violation of D's 4th Amendment rights.
|
|
MBE Good Faith saving invalid search warrant
|
If the police obtained the warrant in good faith, it may still use.
Not good faith: - Eggregious lacking probable cause - No particularity (reasonable officer can't rely) - Knowing or reckless misrep of facts - Biased magistrate |
|
Valid execution of warrant
|
- Compliance with terms
- Knock and announce No need to knock & announce if: - futile - dangerous - hindering investigation Even if no knock and annonce, evidence still admissible. |
|
Warrantless search & seizure permitted: situations
|
Exigent circumstances
Search incidental to arrest Consent Automobile search Plain view Inventory Special needs Terry stops and frisks |
|
Exigent circumstances exception for search warrant
|
- Evanascent evidence
- Hot pursuit (enter house; seizure) - Emergency aid |
|
Search incidental to arrest exception for search warrant
|
- Arrest must be lawful
- Search for weapon or preserve evidence related to arrested crime - Contaporaneous with arrested crime |
|
Scope of search for search incidental to arrest
|
MBE: Wingspan (person, cloth, effect, container within arrestee's immediate control)
NY: cannot search container unless suspect to be armed |
|
Search vehicle incidental to arrest exception to warrant
|
MBE
- Unsecured: cabin (not trunk) including container - Secured: no search unless reason to believe that there is evidence relating to arrested crime NY: once out of car, cannot search car for evidence * See other potential automobile search exceptions |
|
Consent exception to warantless search
|
- Voluntary and intelligent
- Apparent consent (reasonable belief) - Co-tenants: objector wins - Scope of consent: reasonable belief |
|
5th Amendment Miranda (violation)
|
Violated if:
- Custody: atmosphere suggesting not free to leave - Interrogation: * known or should have known * likely to lead to confession - No waiver: knowing, intelligent and voluntary - Not for public safety questioning - Not for spontaneous blurt out confessions - Only for testimonial evidence * confession * lie detector - Not for underlying physical evidence |
|
5th Amendment Miranda (content)
|
- Right to silence
- Used against D in court - Right to counsel - Appoint on for free if can't afford |
|
5th Amendment Miranda (waiver)
|
- Knowing
- Intelligent - Voluntary - May be express (signed writing) - May be implied (e.g. cooperating) NY: if kept child from parent, waiver invalid |
|
5th Amendment Miranda (invoke)
|
- Express invoke for right to silence
- Unambiguous for right to counsel |
|
5th Amendment Miranda (result of invocation)
|
Once you say: I want a lawyer
Police must scrupulously honor: - Stop questioning - May not re-initiate Reinitiate: - By defendant - By police, 14 days after release, obtain a valid waiver |
|
Pretrial identification (5th Miranda)
|
NO Miranda right to counsel for line-up, show-up or photo-array
(Miranda is for testimony) |
|
Pretrial identification (6th Amendment)
|
MBE:
Line-up: after charge Show-up: after charge Photo-array: No NY: indelible right to counsel. Line-up/show-up pre-charge if: - D is aware he has counsel - D requests counsel |
|
Pretrial identification (Due Process)
|
Unconstitutional if so suggestive that there is substantial likelihood for misidentification.
|
|
Pretrial identification (remedy)
|
Remedy: no in-court identification
Exception: prosecution prove: - Specificity of identification - Certainty of identification - Ample opportunity to observe (Usually only violation to right to counsel; but not due process for suggestiveness) |
|
MBE Grand Jury
|
- Functions: issue indictment
- Secretive - Not required under constitution - No Miranda right or right to counsel |
|
Detention hearing not required if
|
- Grand Jury indicted
- Arrest warrant issued (Detention hearing is to determine probable cause to take D into custody) |
|
After arrest, D must be brought before a magistrate to
|
- Advise D of his right
- Set bail - Appoint a counsel, if necessary |
|
NY Grand Jury
|
Grand Jury indictment required.
Sufficient evidence to establish: - All elements of crime - Reasonable cause to believe that defendant committed the crime D may request to testify |
|
Defendant's trial right
|
- Prosecutor must disclose all exculpatory evidence
- Unbiased judge (no financial stake; no actual prejudice) |
|
Criminal right to jury
|
Right to jury trial for offenses > 6 months.
- Jury trial (6-unanimous;12-no need to be unanimous) NY: Jury: 12/11; unanimous - Pool of cross-section of community - 3 peremptive strikes not racial or gender based |
|
Criminal ineffective assistance of counsel
|
- Deficency
- But for deficiency, D would win It requires colorable argument that D is not guilty. Difficult to meet. |
|
Plea bargain (requirement)
|
Judge must inform D (on record):
- Nature of charges, incl. maximum sentence - Consequence of plea bargain: waiving right to trial D must agree knowingly, intelligently, and voluntarily. |
|
Withdrawal of plea bargain after sentencing (requirements)
|
- Involuntary bargain
- Ineffective assistance of counsel - Prosecution breach bargain - Jurisdictional defect |
|
Punishment (8th Amendment)
|
Cruel and unusual punishmet prohibited.
Death penalty violates if: - categorically automatic death sentence - on mentally retarded D - execution when D is insane - D was under 18 at commission Jury must be able to consider all mitigating evidence |
|
Double Jeopardy (attach)
|
- Jury trial: 1st juror swears in
- Bench trial: 1st witness swears in - Plea bargain: unconditionally enters No double jeopardy for same crime in same sovereign |
|
Double jeopardy (double)
|
MBE: not if each crime has a different element from the other
NY: transactional. Not double if: - Substantially different elements - 1 different element AND for different harms - Different crimes for different victims - One possession and one use |
|
Double jeopardy (second trial requirement)
|
- Hung jury
- Mistrial for manefest necessity (e.g. defect in indictment) - D successfully appeals (other than insufficient evidence) - Defendant did not hold bargain |
|
Take the 5th
|
One may refuse to testify under oath
NY Except: Grand Jury Exception: immunity granted Exception: statutory limitation passed Waiver Once testify, forever waives taking 5th Defendant takes the stand |
|
Take the 5th (immunity)
|
MBE: grand immunity to use testimony against witness for same crime - may not take 5th
NY: grant immunity for the transaction |
|
5th Amendment (Prosecutor conduct)
|
Prosecutor may not allude to:
- Defendant invoking right to silence - Defendant invoking right to counsel - Defendnat decides not to testify |
|
Automobile search exception under 4th Amendment
|
- Probable cause that contraband or evidence of crime can be found on the car
- Can search anywhere in the car including trunks (container, package, and luggage) Search after traffic stops: - Must have probable cause prior to initiate search |
|
Plain view exception to 4th Amendment search and seizure
|
- lawful access to the area searched
- lawful access to the item searched - the item must be plainly recognizable as contraband or evidence of crime * NY: for obscene materials, search warrant is required even if in plain view |
|
Inventory exception for 4th Amendment search and seizure
|
- Upon booking into incarceration
- Upon impounding of vehicles Requirements: - State must have relevant regulations that are reasonable (considered in the totality) - Police must follow the requirements of the regulations |
|
Special needs exception to 4th Amendment search and seizure
|
- Element:
* Special needs * not be general interest in law enforcement - Random drug testing * for customs officers handling drug interdiction; * railroad employees after accident; * public schoolchildren in extracaricular activities - Public school principal may search to enforce school rules (not unreasonably offensive) - Government employees' desks may be searched for work-related misconduct - **No 4th Amendment right at border (may search if reasonable suspicion)** |
|
4th Amendment right at border
|
None
|
|
Terry Stops and Frisks
|
Terry stops: stop (seize) suspected individuals to investigate
Terry frisks: search individuals only to protect officer safety - Only exception not requiring probable cause - reasonable suspicion of criminal activity or armed is sufficient (i.e. specific, articulable reasons) |
|
Terry Stops
|
- seized if reasonable belief of:
* no freedom to leave * no freedom to refuse questioning - Hot pursuit MBE: seized if: * physically restraining suspect * submit to police - Hot pursuit NY: seizure in itself - Seize cars: drivers and passengers are seized - dog sniffs: not seizure if not substantially proloning traffic stop |
|
Terry Frisks
|
Officer may pad the suspect for weapon
MBE: officer may seize: - Weapons - Contraband or evidence if recognize without physical manipulation NY: officer may seize - Weapons - Contraband or evidence only if thought it is a weapon Car frisks: may search car for weapons (no locked containers) Protective sweeps for criminal confederates - Adjacent area: reasonable suspicion - Remote area: reasonable prudent officer could conclude that confederates are there |
|
Crim Pro Arrest requirement
|
Arrest: place into custody for prosecution or interrogation; call to police station for fingerprinting
- Probable cause - Can arrest for any offense even if only punishable by civil fines - requires an arrest warrant if suspect is at home and no emergency - requires an arrest warrant and a search warrant if suspect is in a 3-party home - may arrest without warrant if on public property if suspecting common enterprises among driver/passenger, may arrest all |
|
Crim Pro confessions applicable law
|
- 14th amendment due process
- 5th amendment Miranda rights - 6th amendment right to councel |
|
Confessions (14th Amendment)
|
- confessions must be voluntary
- there must not be any police coersion |
|
Confessions (6th Amendment) - MBE
|
- it starts only after formal charges are made
- it applies only to the specific crime charged (not relating to other crimes) Confession obtained violates right to counsel if: - No knowing, intelligent and voluntary waiver is made - Deliberately solicited by the police |
|
Confessions (6th Amendment) - NY
|
It arises if:
- Significant judicial process starts (arraignment; formal charge; etc) - Procedures overbearing defendant's free will starts (police want to overwhelm D) - Presence of counsel is beneficial to defendant * if released, and later taken into custody for unrelated crime, not automatically attach to that Scope: - it applies to all confessions, including other crimes not charged - deliberately solicited by the police Waiver: - Knowing, intelligent, and voluntary requirement - Indelible right to counsel requires counsel presence if one is appointed |
|
Use of evidence obtained in violation of constitution (Crim Pro)
|
Police's deliberate, reckless or gross negligent violation:
- Prosecution case-in-chief: inadmissible - Impeachment of D's testimony if D takes stand: admissible - Miranda violation against 3rd party: inadmissible Exceptions: - If only violating knock and annonce: admissible - If police makes reasonble mistake: admissible Fruit of poisonous tree: subsequent evidence also inadmissible. Evidence is inadmissible if discovered due to prior inadmissible evidence Exception to poisonous tree: Physical evidence discovered by Miranda-violated confession: admissible Prosecution proves break of the chain: - Independent source - Inevitable discovery - Defendant regains free-will (second try for Miranda right violation to obtain same evidence if the first one is not coercive) |
|
Security interests elements
|
- Attach
* Value provided * Authenticated record reasonably describing collateral * Rights in the collateral (including after acquired) - Perfection * Filing of financing statement for most collateral * Possession * Automatic perfection for PMSI in consumer goods |
|
Financing statement requirement
|
- Describe collateral: general description is sufficient
- Debtor's name and address - Creditor's name and address - Filed at the debtor's domicile county - For fixture, file at location county |
|
Security interest priority
|
- Attached unperfected creditors:
* Over debtor * Over subsequent attached but unperfected * Over general unsecured creditors * Trumped by all others - Perfected creditors: * Over buyer not in ordinary course * Over debtor * Over subsequent perfected creditor * Over general unsecured creditors * Trumped by PMSI * Trumped by buyer in ordinary course - PMSI: * For equipment: file within 20d after possession * For inventory: notice and file prior to possession |
|
Default and remedy for security interests
|
- Default defined in SI agreement
- Self-help - Recover collateral through judicial writ of replevin - Strict foreclosure - Foreclosure sale - Deficiency claims - Debtor has right of redemption |
|
Self-help in security interest
|
- Not breach peace
- Breach peace if: * Likely to cause violence * Act under color of law * Break into home * Debtor expressed objection |
|
Strict foreclosure
|
- Consumer goods, notify:
* Debtor * Secondary obligor - Other goods, notify: * Debtor * Secondary obligor * Secured creditor who notified * Perfected secured creditor - Strict foreclosure: in satisfaction of the debt - No strict foreclosure for consumer goods if: * Paid more than 60% of loans * Paid more than 60% of PMSI price |
|
Foreclosure sale of collateral (secured transactions)
|
- Commercially reasonable in every aspect
- Notice must be reasonable: * Form provided * Time/place for public sale * Earliest time for private sale * reasonable in advance of sale * To debtor/secondary obligor/known secured creditors - May buy at public sale - May not buy without market check at private sale - Deficiency calculated by market price if sold to insider at low price |
|
Redemption of collateral in secured transactions
|
- Done prior to foreclosure sale
- Pay all past due amount, including accelerated - Costs - Expenses (including legal fees) |
|
Goods in secured transactions
|
- Consumer goods
- Equipment - Farm machines - Inventory - FIXTURES - Goods are categorized subjectively |
|
Intangible collateral in secured transactions
|
- Money
- Commercial paper - IP - Accounts (account receivables) - Proceeds |
|
Commercial paper elements
|
- Writing
- Pay to the order, cash, assign, bearer - Sum certain - Signed by maker/drawer - Unconditional promise to pay - Payable in currency - Payable in definite time or upon presentation - Sum certain: * Interest alone means judgment rate * Referring to outside source is fine * Identified source: not good - 'On sight': upon presentation - Currency includes foreign currency - Reference to collateral matter is not condition - Timing: * On demand * Before definite time * Within definite period after a definite time |
|
Negotiation of commercial paper
|
- Negotiation = due transfer
- Desginated payee: by delivery - Destignated payee to transferee * Payee indorse * Delivery to transferee - No payee: by deliver - Indorsement: * Blank: no payee * Special: designating a payee * 'w/o recourse': disclaimed * Restricted indorsement |
|
Commercial paper potential defendants
|
- Signature liability: P may sue
* Drawer/maker * Any indorser * Not drawee * Not if 'w/o recourse' - Warrantor liability: P in possession of paper may sue * Any person who indorsed * Any immediate transferor of bearer form * Not donor - Warranties: * Valid title * Valid authorization * No material alteration * No knowledge of insolvency * No knowledge of defense (i.e. enforceable) |
|
Commercial paper - holder in due course
|
- Received through proper negotiation
- Paid value * Past value is fine * Promise is insufficient - In good faith (subjective) - Without notice of: * Past due principal (not interest) * Any defense (void/cancelled/paid/etc) - If dealing with fiduciary, actual knowledge of violating duty is required - Shelter rule - Only subject to real defenses (MAD FIF IIII) |
|
Real defenses to holder in due course
|
- Materal alteration without maker/drawer negligence
- Fraud in factum - Duress - Insolvency - Incapacity - Infancy - Illegality |
|
Incorporation requirements
|
- Natural person with capacity (at least one)
- Certificate of incorporation * Name (corp, ltd, inc) * Address specific to county level * Designate secretary of state as agent (no need of more) * Forwarding address * Name and address of incorporator * May say term (perpetual by default) * Must say scope, but general scope is fine * # of authorized shares * Classes of shares and # in each class * Preference, rights and limits of classes * Series of preferred shares - Actions: * Incorporator executes the CI and deliver to Department of state * Incorporator pays fees * Department reviews and files * Incorporator holds organizational meeting |
|
Effect of incorporation/failure to incorporate
|
- Department filing: de jure corporation conclusive
- Internal affairs governed by NY law - De facto corporation: very limited * Incorporating statute exists (BCL) * Colorable attempt to incorporate * Conduct business as corp - Corporation by estoppel: abolished in NY - Limited liability for SH - $5,000/year/candidate political donation - Charitable donations - Guarantee loans by 2/3 SH vote - Ultra vires: * Act is valid * SH may seek injunction * Manager is liable to corp. |
|
Promoter liability re incorporation
|
- Promotor is L until novation
- Corporation is L after adoption: * Express * Implied through acceptance of benefit - Promoter may not have secret profits * Secret: not informing board * Profit: Purchase price - FMV(pre)/price(post) |
|
Foreign corporations
|
- Foreign corporation doing business must qualify
- Qualifaction: * Summary of CI * Good standing * Pay fees - Foreign corporation may be sued - Foreign corporation may not sue until qualify * Must pay past due fees, taxes, interests accrued |
|
Issuance of stock
|
- Subscription: written offer to buy
* Irrevocable for 3m for pre-incorporation subscription * Revocable until acceptance after incorporation - Not issue at consideration under par - No par/treasury: any consideration |
|
Considerations for issuance of stock
|
- Form of considerations
* Money and property * Past services * Binding obligation to give money or property * Binding obligation to perform service at agreed value - Invalid consideration: water * Director liable * Initial buyer liable * Third party BFP not liable - Board determines non-money consideration - Grossly inadequate: waste - Board determination is binding if w/o fault |
|
Preemptive rights for stock
|
- Only if provided in CI, and only for
* New issuance * For money - Issuance not including authorized at incorporation and sold within 2 years - Pro rata among each class |
|
Organizational meeting
|
- Elect directors
- Adopt bylaws |
|
Bylaws of corporation
|
- Not binding third parties
- SH may adopt - Board may adopt if CI/SH bylaws allow - SH may amend/repeal board bylaws |
|
Partially paid subscription of stock
|
- If less than half:
* Retain cosideration * Cancel stock - If more than half: * Seek alternative buyer * Surplus minus expense goes to subscriber |
|
Directors requirement for corporations
|
- at least 1 director
- Increase the number: * By SH actions * By SH bylaws * By board if SH bylaws allow - Closed corporations: may use managing SH if * All incorporators and SH agree * All subsequent SH get notice * Noted on front and back of SH certificate * SH not traded publicly - Managing SH has duty of care to: * Corp * Dealing with each other |
|
Director meetings
|
- Acts through unanimous written consent
- Acts through meetings (con call ok) - No voting proxy or trust - Quorum: majority * decrease by CI/bylaw to 1/3 * increase by CI - Threshold: majority of present * not decrease * increase by CI - Notice * Regular meeting: no need to notice * Special meeting: notice of time/place - Without notice: void unless * Written waiver anytime * Appear without objection |
|
Director and officer duties
|
- Duty of care
* Good faith * Diligence, care and skill * Ordinary prudent person * Under similar circumstances * Causation for omission * BJR for commission - Duty of loyalty * Good faith * Conscientiousness, morality, honesty, fairness * Required for fiduciary * No self-dealing * No competition * No usurp of opportunities - No loan to director unless in the interest of corp - Sarbanes Oxley: CEO/CFO certification |
|
Business judgment rule
|
- Court will not second guess
- Requirements: * Good faith * Reasonably informed * Rational basis - Easy to meet |
|
Duty of loyalty (D&O)
|
- NO BJR
- Self-dealing must be fair and reasonable OR: - Disclosure to board or known and approved: * By quorum and disinterested director vote * By unanimous disinterested director vote * By SH vote - No competition with corporation - No usurp of opportunities: * Need, has interest, tangible expectation, logically related * Must report to board waiting for rejection * Must assist in obtaining financing - Otherwise: set aside and disgorge benefits through constructive trust |
|
Election and removal of directors
|
- SH may elect in annual meeting
- SH may use cumulative voting if provided in CI * SH x seat * Requires: 100/(seat+1) x Share # + 1 - May use classified board - SH may remove for cause - SH may remove without cause if CI/bylaws authorizes - Board may remove for cause if CI/bylaw authorizes - Filing vacancies: * Board * SH for SH removed directors |
|
Officers in corporation
|
- Board appoints and removes
* Unless CI provides that SH may appoint - Board set compensation - Same duty as directors - May bind corporation for authorized transaction - Attorney general and 10% SH may petition to court to: * remove * Prohibit re-appointment by board |
|
Indemnifications for D&O
|
- As of right: if D&O wins
- Prohibited: if D&O loses - Permitted: otherwise (e.g. settles) - Discretion by board: * D&O acted in good faith * Purpose is for the interest of corp - Determination in permissive category: * By non-party director vote * If insufficient: by SH vote * Acting relying on outside counsel report - CI may provide indemnification * by board resolution * by SH approval * by agreement - CI may not limit D&O liability * intentional misconduct * act in bad faith * unlawful distribution * Receives improper benefits |
|
Delegation of duties by board to committee
|
- Delegate to committees allowed
- Committee cannot: * Set director compensation * Make fundamental changes to CI * Fill vacancies * Amend bylaws - Commttee may recommend the above to board |
|
Director disclaim liability
|
- D&O may disclaim by vote against resolution
- Requirements: * Writing (minute; writing during and after) * May not vote for resolution * Absentee: may write after meeting - D&O may good faith rely on: * Officers with competence and reliable * Accountants/counsel with competence * Special committee reports |
|
Shareholder liability to corporation
|
- Limited liability
- 10 largest SH liable for employee salary and benefits - Pierce corporate veil: * Abuse corporate form * Fairness requires SH liable * Tort: likely * Closed corporation only - Complete dominion and control - Use corporation to perpetrate: * Wrong * Injustice * Fraud - Alter ego and undercapitalization scenario |
|
Shareholder voting
|
- SH may act by unanimous consent or through meeting
- Record owner on record date may vote - No vote on treasury stock - majority quorum * decrease by CI/bylaw to 1/3 * increase by CI * Never lose quorum - threshold: majority of voted * No decrease * Increase by CI - Notice: any SH meeting, 10-60d in advance * Time and place * Specific purposes for special meetings - Outside of purpose: void - No notice: void unless: * Written waiver * Appears without objection |
|
Voting proxy, agreement and trust
|
- Voting proxy:
* revocable even if says 'irrevocable' unless agent has interest * Writing, to secretary, signed, appoint agent * Valid for 11m by default - Voting agreement: * Writing signed * Irrevocable if says 'irrevocable' * Not specific performance * May provide for directors only if they are sole SHs - Voting trust * Signed writing * Copy to corporation * Transfer title of share to trustee * 10 year term extendable by 6m notice * SH has voting trust certificate (all rights except voting) |
|
Transfer of shares
|
- CI, bylaw and agreement may restrict
- May not restrict without any reason - May restrict if retire or quit - Enforce against third party: * Actual knowledge of restriction or * Noted on share certificate |
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Shareholder derivative actions
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- Recovery goes to crop
- Recovery goes to SH if enriching wrongdoer - May not dismiss or settle without court approval - Res judicata for following actions - Requirements * Have share from accrual to end of trial * Adequate representation * Bond if less than 5% or $50,000 * Demand or futile of demand - Corp may move to dismiss relying on special committee - Not dismiss only if: * No independence * No adequate investigation D&O may sue other D&O without these difficulties: * Breach of duty * Misappropriation of corporate assets |
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Demand requirement in shareholder derivative suits
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- Must plead particularly:
* Efforts to demand * Futility of demand - Futile of demand: * Majority of board is interested * Not reasonably informing themselves * Egregrious transaction that cannot be reasonable - If demanded and refused: * Majority of board is interested * Inadequate/incomplete investigation |
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Shareholder inspection rights
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- Director has unfettered rights always
- Common law right of inspection: * Reasonable notice * Proper time and place * Proper purpose * Scope is ambiguous - 5d written notice for SH minutes and list * May require affidavit of not selling list/interest of corp * If refuse to give affidavit: refuse inspection - 2d written notice for list of D&O - Written request for financials |
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Distribution to SH
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- Only surplus, not stated capital
* Par is stated capital * No-par: board determines (at least part to be stated capital) - No distribution if insolvent after distribution - May distribute even if loss in the past year - Liability: * D knowing unlawfulness: L * SH knowing unlawfulness: L - Pro rata in each class - Note preference, participation and cumulative shares - Redemption: pro rata - Repurchase: * individually negotiated * must give equal opportunities |
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Professional corporations (P.C.)
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- SH, D&O: all must be licensed
- CI must provide: * name and address of each initial SH and D&O * profession * P.C. * certification that they are licensed - Professional liable for own malpractice - Corporation liable for other liabilities - If pro dies: corp must buy back his stock |
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Appraisal rights for SH
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- NA to public company shareholders
- No minority discount - Available: * Amendment to CI affecting SH rights * Merger, consolidation, share exchange * Sale of substantially all assets - Perfect: * File objection and intention to demand b/f meeting * Vote against or not voting at meeting * File demand after meeting - Get FMV in forced buy out of dissenting shares |
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Amendment of CI requirements
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- Board approval for ordinary amendments
- Board and SH (outstanding) approval for fundamentals - 2/3 SH vote for special threshold amendments - Deliver Certificate of Amendment for filing - Appraisal right if affecting SH major rights |
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Merger and consolidation requirements
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- Board approval required
- SH (outstanding) approval required - No approval for 90% parent-sub merger (short-form) - SH of disappeared corp has appraisal right - SH of sub in short-form merger has appraisal right - Deliver of Certificate of Merger for filing - Successor liability |
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Sale of assets requirements
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- Board approval required
- SH approval (outstanding) of seller required - SH approval of buyer not required - No need to change certificate - No successor liability except * Fraud * Mere continuation * Provided in the deal |
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Share exchange
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- Board approval required
- SH approval (outstanding) required for seller - No SH approval required for buyer unless insufficient authorized stock - Plan of Exchange delivered for filing |
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Dissolution of corporation
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- Voluntary: SH voting (outstanding) sufficient
- Involuntary: * Board & SH approval for insolvency * Majority of SH for deadlock management * Any SH for no election of director for 2 years * 20% SH in closed corporation for oppression or management looting - Management may buy out and avoid disolution: * Within 90 days * At terms approved by court |
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Winding up of corporation
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- Gather assets
- Liquidate - Pay creditors - Pay SH according to preference, if any - No agreement to pay SH before creditors |
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Controlling Shareholders
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- Working control sufficient
- May get control premium except: * Sold to looters without reasonable investigation * Selling key asset in fact * Selling board seat - Remedy: damages and disgorge benefit - Freeze-out * Fair price * Fair dealing * Business purpose |
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Insider trading
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- Public company on market: derivative
- Dealing w/ SH directly and without information (material): * Direct action * Get difference b/w price paid and FMV |
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Pre-marriage agreements
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- Agreement between unmarried couple:
* Valid if no part is for sex * No implied agreement - Pre-marital agreement (for anything) valid if: * Writing, signed, akcnowledged * No duress * Reasonable at execution * Not unconscionable at divorce |
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Getting married
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- Homosexual marriage allowed
- Ceremony (WOE) * Witness * Officiant * Exchange of promise - No common law marriage in NY - Out-state common law marriage recognized in NY |
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Non-marital children (filiation proceeding)
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- Full right as marital children
- Filiation proceeding at family court - Proceed before child is 21 - Clear and convincing evidence required * Wife testimony no corroboration needed * Husband testimony need corroboration - 95% DNA test rebuttable presumption: * Absence during conception * Sterile - Estoppel of father/mother |
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Termination of marriage
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- In Supreme Court
- Declaration of nullity - Annulment - Separation (no jury) - Divorce - Dissolution (disappear for 5y) |
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Declaration of nullity of marriage
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- Null even without declaration
- Bigamy - Incest * Linear ancestor/descendent * Siblings * Siblings of parent * Siblings' children |
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Annulment of marriage
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- Non-age (waivable)
* <14: no capacity * 14/15: parent + judge consent * 16/17: parent consent * 18: full capacity - Incapacity at marriage (waivable) - Duress at marriage (waivable) - Uncurable inability to have sex (no jury; 5y SOL) - Fraud * Misrepresentation or concealment * By one party * Prior to marriage * Intent to mislead reasonable person * Essential aspect to marriage - Incurable incapacity for 5 years * 3 court appointed psychiatrists agree |
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Separation and divorce grounds
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- Cruel and inhuman treatment
* Physical: one episode (wellbeing; unsafe) * Mental: course of dealing - Abandonment * Voluntary leaving * No consent; no justification * Intent not to return * Constructive if refuse sex - In prison for 3 years - Adultery, defenses: * recrimination * connivance * condonation * SOL: 5y - Lack of support: separation only - Convert from separation to divorce - No fault divorce: * Under oath testify 6m of irretrievable marraige breakdown * No divorce decree until collateral matters are set |
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Conversion of separation to divorce
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- 1 year separation
- Separation agreement is valid * Writing signed acknowledged * No duress * Not rescinded by intent to reconcile + cohabit * Filed at any time prior to filing of divorce - Application to court to convert |
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Dissolution of marriage
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- 3 weeks request on English newspaper
- 5 year disappear without information - P lives in NY for 1 year; or NY is matrimonial domicile - No SOL - No collateral matters |
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Automatic decree upon filing of divorce
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- Freeze assets:
* No unusual increase of debts * No transfer or concealment * No change to insurance - Report financial status to court - File tax return with court |
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Maintenance of spouse
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- Presumed maintenance pending divorce:
* preserve status quo * provide support to applicant - Post-judgment maintenance (alimony): % set by factors - Modification upon substantial change - Modification is prospective - If affecting agreement: extreme hardship - Termination upon: * Remarries * One dies * Specified time by court * Specified by agreement - Enforcement: * Wage reduction order * Suspending licenses * Seizure of assets * Jail time for contempt |
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Separation of assets in divorce
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- Separate asset:
* Prior to marriage * Gifts/inheritence to one spouse * Personal injury compensation * Agreed to be separate * Passive increase in value of above - Marital assets: * Post marriage and before filing divorce * Active effort increase in value * Degrees/licenses in marriage - Distribution set % by factors - Fault is not considered - In kind distribution - Distributive award may be made |
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Child right termination
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- Family court; court appoints counsel for parent
- Abandonment: 6m no contact - Neglect: * No contact or provision for support * 1y * Requested by agency * Ability to support - Child abuse - Incapacity - Murdered one child |
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Adoption requirement
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- Eligible:
* Adult married couple jointly * Single adult * Intimate relationship couple * Minor adopting adult spouse's child - Eligible to be adopted: anyone with sufficient consent - Child (all of): * Consent by parents/guardians * Consent by child if > 14 - Adult: consent by him/herslef - Questionnairs, interviews, home visits, etc - 3m trial period - Religion is honored - Parent may submit custody around birth by writing |
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Child support
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- Biological and adoptive parent L for support:
* to 21 * through college if both child and parent are able - Amounts set in guidelines. - Agreement if: * Stating that informed about guideline * Judge may alter agreement - Modification if substantial change in circumstances * Presumed every 3 years * Presumed if change in income by 15% - Termination: 21/finish college/dies - Enforcement: wage reduction/jail/seizure/suspend license |
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Child custody
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- No preference for any parent
- Best interest of the child - Judge may interview child in camera - Between parent and non-parent: * Unfit * Balance of factors (extrodinary circumstances) - Visitation never denied to parent - Denial of visitation: contempt - Move requries court approval, balancing: * Advantage to child * Impact on visitation - Visitation by non-parent: * Parent presumed to win * Unless showing strong state interest and special circumstances |
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Federal personal jurisdiction
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Same as state court rules
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Federal subject matter jurisdiction
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- Diversity (complete)
- Alienage (citizen v. alien) - Federal question - Supplemental jursidcition - Removal jurisdiction |
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Diversity and alienage jurisdiction
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- Complete diversity or alienage plus $75,000
- diversity upon filing - Citizen: * Natural person: domicile * Corporation: incorporate state; PPB (nerve center) * Partnership: domicile of each partner * The decedent/insane/infant not the representative - U.S. citizen domiciled outside U.S. * Not a citizen * Not an alien - Claim in dispute: > $75,000 * Aggregate for 1P1D * Aggregate for joint tortfeasors * No aggregate for others * If recovers less, pay costs (not attorney fees) * Injuction (value to P or cost to D) - Not for divorce/separation/custody - Not for probation of will |
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Federal questions jurisdiction
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Enforcing a federal right (patent, copyright, antitrust, bankruptcy, etc)
No amount requirement |
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Supplemental jurisdiction
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- Common nucleus of operative fact (T/O)
- Limit: if base claim is diversity, NA if: * Used by P * Overcome lack of diversity - If base claim is diversity, available for amount - If base claim is FQ: fine - Discretion to decline: * Federal Q dismissed early * State claim is complex * State claim dominates |
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Removal jurisdiction
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- P may not remove
- Forum state D may not remove diversity case - No removal 1y after filing - May remove if diversity/alienage/FQ - File 30d after giving arise to diversity: * notice of removal at Fed * all papers served * copy to other parties * notice of removal to state court - Challenge: * 30d for defective process * Anytime for lack of subject matter jurisdiction - Waiver: probably if raise permissive counterclaim |
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Erie doctrine
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- Apply state substantive law in diversity case
- Apply federal law on point - Apply state law: * Element * SOL or toll * Conflict of laws - Balance of factors: * Determinative of outcome * Interests * Forum shopping concerns |
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Venue in federal court
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- Proper venue:
* court has personal jurisdiction * location for RE title, possession and injury * transitory cases: all Ds' residence or substantive part of event - If Ds reside in same state: any district in state - If both courts are proper: * Convenience of parties/witnesses * Justice requires * 'public and private factors indicating center of gravity' - If original court is improper: * Dismiss * Transfer in interest of justice - Apply the law transferor court would apply |
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Residence for venue in federal court
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- Natural person: domicile
- Corporations, etc: anywhere with personal jurisdiction |
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Service of process in federal court
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- 18+ non party
- Federal methods: * Personal delivery * Left at usual abode with person of suitable age/discretion * Serve on agent * Waiver x 2, prepaid return, process - If using waiver: * D must return within 30d * If not, pay expenses for service * P file waiver with court - State methods: * Forum state * Service place state - Outstate service: same as state court |
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Counterclaims in federal court
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- Must hav subject matter jurisdiction
- Compulsory: * Same transaction or occurence * Waived if not asserted (other than MTD) * Can use supplementary jurisdiction - Permissive: any other counterclaims |
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Crossclaims in federal court
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- Arising out of same transaction or occurence
- Against co-party - Not compulsory - Note subject matter jurisdiction |
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Impleader in federal court
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- Note subject matter jurisdiction
- Note personal jurisdiction over TPD - File w/i 14d after serving answer - Service made on TPD - P and TPD may assert claims for same transaction - Note subject matter jurisdiction |
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Necessary parties in federal court
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- Arising out of the same transaction or occurence
- One common question - Not joint tortfeasors - If not joined: * No complete remedy * Harm absentee * Subject D to multiple suits - Note personal jurisdiction over the absentee - Note subject matter jurisdiction over absentee - If cannot join, court has discretion: * Dismiss if indispensible * Proceed if not * Factors: remedy, alternative forum, likelihood of harm |
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Permissive parties in federal court
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- Same transaction or occurence
- 1 common question - Note subject matter jurisdiction |
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Intervention in federal court
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- Absentee may intervene:
* As of right if harming absentee * Permissive if has common question - Note subject matter jurisdiction |
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Interpleader in federal court
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- Claimants and stakeholders
- Rule: * Diversity between stakeholder and claimants * 75,000 amount in dispute * normal service * normal venue - Statutory: * 1 claimant v. another in diversity * $500 or more * Nationwide service * Proper venue if has personal jurisdiction |
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Class actions in federal court
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- Numerous, common, typical and representation
- Three types: * Injunction * Prejudice * Damages if predominate and superior method - No settlement without court approval - Court certify class, define class and appoint counsel - Damages type: * Notice to everyone * Inform: opt out; bound if not opt out; separate appearence * 2nd chance to opt out at settlement - Jurisdiction * Federal question * Diversity: representative * CAFA: 100P, $5mm damages, 1P-1D diversity |
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Jury trial in federal court
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- Jury tries cases at law
- Judge determines facts for equity - 7th amendment NA to state - Parties may request w/i 14d after last pleading with jury right - voir dire: * no race/gender discrimination for peremptory * 3 peremptory * unlimited for cause |
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Judgment as a matter of law in federal court
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- D may move at close of P's evidence
- Both may move at end of case - If moved, may renew w/i 28d after judgment - Standard: * reasonable people could not disagree * most favorable to non-moving party |
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New trial in federal court
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- May move w/i 28d after judgment
- Error: * prejudice * party/juror misconduct * erroneous judgment by jury * new evidence unavailable at trial - Set aside and retry |
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Pleadings in federal court
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- Defenses in first pleading/MTD:
* Process * Service * Personal jurisdiction * Venue - Defense before close of trial * Necessary party * Failure to state a claim - Not waived: subject matter jurisdiction - Must provide sufficient facts for plausible claim - Particularity required for: * Fraud * Mistake * Special damages |