MBE Short Outline

Torts

A. Intentional torts 1. Intent

a. Specific: acts with intent to cause consequences of act. b. General: Substantial certainty that ’s conduct will result in commission of

tortuous act. c. Transferred: intends tortuous conduct against one party but resulting harm is

caused upon another. Only applies to assault, battery, false imprisonment, tresspass to land or chattels.

d. Minors and incompetents are held liable for intentional torts. 2. Harms to the person

a. Battery 1. acts intending to cause an offensive or harmful contact with the person

of another and an offensive or harmful contact results. 2. Covers the person of and anything that can be identified with the close

person, such as clothing, or something grasped in the hand. Car is an extension of the person, so throwing a snowball at a car is a battery (assuming someone is in the car). Same with horse, chair.

3. need not be aware of contact or have damages. b. Assault

1. acts intending to place in imminent apprehension (fear not required) of unpermitted contact and is placed in such apprehension.

2. Awareness is required. 3. Future threats lack imminency and are insufficient. 4. Words alone are insufficient, unless accompanied by some overt act. 5. Inability of to injure is not relevant. 6. Assault followed by battery merges into battery. Battery followed by

assault is two separate torts. c. False imprisonment

1. intends to confine within certain fixed boundaries 2. ’s conduct does in fact cause such confinement by force, threats of

force, or unlawful arrest. 3. is conscious or aware of confinement, or alternatively harmed by it.

a. Some courts have held that minors and incompetents don’t have to be conscious or aware of the confinement.

4. Confinement can result regardless of how brief. 5. Shopkeeper’s privilege: Store can detain suspected shoplifter if:

a. Reasonable grounds to believe theft has occurred; b. Detention conducted in reasonable manner; and c. Detention for reasonable period of time to make investigation

(conservative – 30 min has been held to be too long.). d. Infliction of mental distress

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1. conduct must be extreme, outrageous, or reckless. Not necessarily intentional.

2. suffers severe emotional distress, such as: Suffering, anguish, fright, horror, grief, shame, humiliation, embarrassment, worry, nausia.

3. TP who witnesses physical harm and suffers emotional distress can recover if TP suffers bodily injury, or if:

a. TP is a close family member; and b. is aware or should have been aware of TP’s presence.

4. Negligent infliction: Duty of care owed, foreseeable within zone of danger, ’s conduct merely negligent.

3. Harms to property interests a. Tresspass to land

1. On, above or below the land 2. Intentionally entering the land to another or causing a thing or TP to do

so. a. Mistake as to ownership is no defense. b. Negligent or reckless entry: No liability unless damage to land.

Example: Negligent car accident runs into yard. c. No liability for accidents. Example: Golfer hits ball straight down

fairway, ball ricochets off tree and breaks house glass. 3. Privileged entries (defenses)

a. Private necessity: Private trespass to avoid private disaster: Airplane must make emergency landing on someone’s crop – no trespass liability, but liability for damage to land.

b. Public necessity: Absolute privilege – no trespass liability and no liability for damage to land.

b. Trespass to chattels 1. Intentional intermedeling or damaging of another’s chattels. 2. Liability is for diminished value or cost of repair. 3. Degree of interference determines tort: Minor interference is trespass,

but destruction is conversion. c. Conversion

1. Intentional exercise of dominion or control over chattel of another. 2. Substantial or serious interference with ’s ownership rights, measured

by extent, duration and damage of dominion. 3. Liability for full value of chattel because forced sale is required. 4. Mistake is not a defense.

a. Discovery of mistake and immediate return in same condition is not conversion, because no substantial interference with ownership rights.

4. Defenses to claims for physical harms a. Privileges and immunities

1. Protection of self and others, so long as belief of imminent attack is reasonable.

a. Reasonable force in self defense or defense of others can be used. b. Minority of states apply alter-ego rule saying that you bear the

risk that the person you are defending doesn’t have the right of defense.

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c. No duty to retreat. 2. Protection of property interests

a. Reasonable force can be used, but not deadly (i.e. spring gun). b. Recapture of chattels

i. If possessor got chattel by wrongful conduct, reasonable force can be used.

ii. If possessor got chattel by innocent conduct, only peaceful means can be used for recovery.

iii. Right to trespass if preceeded by demand. 3. Parental discipline: Reasonable force can be used by parent and school. 4. Arrest

a. Warrantless arrest can be made so long as misdeamenor which is breach of the peace committed in presence of arresting PD or private citizen. Absolute privilege.

b. Warrantless arrest can be made if felony was in fact committed, and you have reasonable grounds to believe person arrested committed it. Absolute privilege if both conditions met.

c. PD has privilege to arrest so long as reasonably believes felony has been committed, and reasonable belief that the person committed the crime.

5. Necessity a. Public necessity: Absolute privilege: No liability for any damages. b. Private necessity: Incomplete privilege: Liability for damage, but

not trespass. b. Mistake

1. Defense only if acts quickly to protect his own or public interest. 2. Mistake is no defense to trespass, battery, conversion.

c. Consent 1. One who consents to a tortuous act cannot later complain. 2. Consent can be express (fighting) or implied (emergency room work on

unconscious person). 3. Exceeding consent: A person who consents can complain if the tort

exceeds the scope of the consent. Example: Consent to fight, but not with brass knuckles.

4. Fraud or mistake can negate consent. B. Negligence (focus)

1. Duty of care a. General duty of care

1. If none owed, no tort exists. 2. Must act as a reasonable, ordinary, prudent person. 3. Must take precautions not to create unordinary risks to others. 4. No duty to take precautions against unforeseeable events or risks. 5. Omissions: No legal duty to render assistance to someone in peril.

Exceptions: a. Family relationship: Criminal and tort liability for failure to act to

protect family members. b. K: Lifeguard (criminal and civil). c. Statute: Hit and run.

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d. Voluntary assumption of care: Can’t place victim in more perilous position than how you found them. Must follow through with rescue operation.

e. Creation of peril 6. Good Samaritan: Licensed Dr’s, nurses who voluntarily render emergency

treatment are exempt from liability for ordinary negligence, in some states. Liability still exists for gross negligence.

b. Duty of care is owed only to foreseeable ’s. 1. Rescuer is a foreseeable and duty of care is owed to him. It is

foreseeable that if your conduct is negligent and places someone in peril, a rescuer may be needed and may be injured.

2. Prenatal injuries: Duty of care owed to fetus (i.e. dr’s negligence), and prenatal injuries are actionable so long as fetus is born alive.

c. Standards of care 1. Reasonable person: conduct measured against reasonable, ordinary,

prudent person. a. Average mental ability is used. No exceptions for insanity or

stupidity. b. ’s physical characteristics are used: Person with physical

handicap (blindness, eyeglasses, wheelchair) must take those necessities into consideration, and must use reasonable aids.

2. Professionals with special skills a. Required to exercise knowledge and skill of member of profession

in good standing in same or similar locale. b. Possession of superior skill or knowledge (specialist) may be held

to higher standard if holds himself out as having superior skill or knowledge.

3. Child: Must conform to standard of care of a child of like age, education, intelligence and experience.

a. < 4 y.o. usually doesn’t have capacity to be negligent. b. When child engaged in adult activity (driving), child must use

adult standard of care. 4. Innkeeper/Common carrier: Liability for slight negligence by employees. 5. Automobile driver duty to passengers

a. Passenger is treated as a licensee, driver has duty to warn of known defencts, and use reasonable care in operating the vehicle.

b. State with guest statute: Driver need only refrain from gross, wanton, reckless conduct. No recovery for ordinary negligence.

6. Bailments a. Gratuitious bailment: Loaning something to a friend. Owner

(bailor) must warn bailee of known defects that exist. b. Bailment for hire: Bailor must inspect chattel and make chattel

safe for protection of bailee. c. Bailee need exercise only reasonable or ordinary care.

7. Landowners/Possessors of land a. Trespassers

i. No duty owed to undiscovered and unanticipated trespassers 4

ii. Duty to warn discovered or anticipated trespassers of known dangerous conditions on property. No duty to warn re: obvious natural conditions.

b. Invitees: Customers in a store or buildings open to public. Duty to inspect and make safe.

c. Licensees: Permission to enter granted. Duty to warn of known dangerous conditions. No duty to inspect or make safe.

d. Attractive nuisance: Recovery if: i. Artificial dangerous condition on land.

ii. Possessor/owner knows or has reason to know children are likely to trespass.

iii. Child subjectively fails to appreciate danger or risks. iv. Utility of maintaining danger is slight compared to risk

involved. e. Public Employees

i. If employee comes onto property in connection with possessor’s business, treated as invitee. Example: Meter reader, postman, building inspector, garbage collector.

ii. Fireman and policeman treated as licensees. f. Liability of lessor of land

i. LL usually not liable to T or T’s guests. ii. LL must maintain common passageways in safe condition.

iii. Dangerous conditions eisting at commencement of lease which LL knows of which are unlikely to be discovered by T, LL liable.

2. Breach of duty a. Show events leading up to injury b. Show acted unreasonably

1. Violation of statute (negligence per se): a. Statute must have been designed to protect against that type of

injury from occurring. b. must be a member of the class of individuals sought to be

protected by the statute. 2. Res ipsa loquitor: "The thing speaks for itself."

a. must show that the incident causing injury was not the type of incident that would not normally happen if someone wasn’t negligent.

b. was responsible for causing incident. Exclusive control is one way of showing responsibility, but not required.

c. Showing Res Ipsa will preclude a directed verdict for the . 3. Causation (must meet both types)

a. Causation in fact (several methods): 1. But for ’s conduct, would not have been injured 2. Actual cause of the injury 3. Direct cause of injury 4. Substantial factor

b. Proximate legal cause

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1. In hindsight, looking at chain of events, as a matter of policy, should be held legally responsible for his actions and ’s injury?

2. Limits a. must have been foreseeable . b. Harm or injury must have been foreseeable.

c. Harms traceable to multiple causes: All defendants held liable, and burden of proof on to show innocence.

d. Multiple tortfeasors 1. If tortuous acts of two+ parties caused indivisible injury which isn’t

capable of apportionment, ’s are held jointly and severally liable. 2. Where divisible injury exists (can be apportioned amongst the ’s), each

is liable for their own act. e. Intervening cause

1. Intervening cause harms after initial negligence by . 2. is liable for injury caused by intervening cause if intervening cause was

foreseeable. a. Medical malpractice (ordinary negligence only – not gross

negligence). b. Negligence of rescuers. c. Subsequent disease or injury resulting from original injury.

3. No liability if unforeseeable (superceding cause). a. Acts of god, but N/A when engaged in ultrahazardous activity. b. Criminal acts of TP’s c. Intentional tortuous acts of TP’s

4. Damages a. Types of damages

1. Actual damages must be proven, and are required for a negligence suit. 2. Personal injury and property damage is recoverable 3. Nominal and punitive damages normally not available

b. Collateral source 1. Payments received from ’s insurance co. or employment benefits are

not deducted from ’s liability. 2. Payments from ’s insurance co. do reduce ’s liability.

5. Defenses a. Comparative negligence (majority): Apportion damages based on degree of

fault. ’s liability reduced by proportion of ’s fault. 1. Modified: ’s negligence must not be equal to nor greater than ’s

negligence. 2. Contributory/Pure: can recover even if his negligence is greater than

’s. b. Contributory negligence (minority): If is even slightly at fault (negligent), no

recovery from . Exception: Last clear chance doctrine – where had last clear chance to avoid injury and failed to do so.

c. Assumption of risk 1. voluntarily and knowingly (subjective) exposes himself to risk of harm. 2. May be in addition to to contributory negligence.

6. Limitations on liability and special rules of liability a. Claims against owners and occupiers of land

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b. Claims for mental distress not arising from physical harm; other intangible injuries

c. Claims for pure economic loss C. Vicarious liability

1. Respondiat superior: Employer is liable for the acts of employees, servants and agents which occur in the scope of employment.

a. Exception: Intentional torts committed by employee, unless in furtherance of employer’s business. Example: Bouncer evicting patron from nightclub.

2. Independent contractors: Employee has no liability, except: a. Ultrahazardous activities b. Nondelegable duty c. Negligent selection or hiring

3. Joint venture (more limited purpose than a partnership): Each member liable for conduct of other members.

4. Automobile owner generally not liable for tortuous conduct of someone else who is driving.

a. Family car doctrine: Owner liable for tortuous conduct of immediate family members driving with express or implied permission of owner.

b. Permissive use doctrine: Owner liable for anyone using car with permission of owner.

5. Parents a. No vicarious liability for negligence or torious conduct of child, but may be liable

for negligence for failure to supervise or control child’s conduct. 6. Be sure to address indemnification of employer by employee

D. Multiple issues 1. Joint and severable liability: Where combined negligent acts of ’s cause indivisible

injury to , each is jointly and severably liable. 2. Contribution and indemnity

a. Contribution requires each tortfeasor to pay their proportionate share. Cannot favor intentional tortfeasors.

b. Indemnity: Shifts loss from one tortfeasor who has been required to pay to another who should bear the loss instead.

1. Vicarious liability: Employer can seek indemnification from employee. 2. Strict products liability: sues retailer for product defectively made by

manufacturer. Retailer is indemnified by manufacturer. E. Survival & wrongful death

1. Tort actions survive ’s death, except torts against intangible interests (defamation, right to privacy).

2. Wrongful death: Spouse or next of kin can bring suit for pecuniary injury resulting to spouse or next of kin for loss of support and loss of consortium. No pain and suffering.

F. Strict liability 1. Ultrahazardous activities, even if exercises utmost care.

a. Storage of explosives. b. Blasting operations. c. Crop dusting with dangerous chemicals. d. Fumigation of building using cyanide gas. e. Drilling oil wells in thickly settled communities. f. Excludes: Fireworks, guns.

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2. Wild animals (lion, bear, snake, sharks) a. Liability for injuries caused by the dangerous propensities of the animal. b. Includes injuries caused by fleeing from animal. c. Wild animals which are domesticated still give liability. d. Domestic animals (cats, dogs): One bite rule, unless knowledge of dangerous

propensities before the one bite. 3. Products liability

a. One who sells a product in a defective condition which is unreasonably dangerous to user or consumer, is strictly liable.

b. Liability is imposed on the entire line: Manufacturer, wholesaler, retailer. But no liability on the occasional seller (i.e. lemonaide stand, PTA bake sale).

c. Misuse is not a defense if the misuse is foreseeable. d. Liability for failure to give adequate warning or directions. e. Also discuss negligent manufacturing and warranties.

4. Rule of Rylands v. Fletcher 5. Defenses

a. Assumption of the risk is the only defense. G. Nuisance

1. Public a. Act that inconveniences, obstructs or damages a right common to the general

public. Usually a serious interference with public health, safety or peace. b. must suffer some harm of a kind that is different from the general public.

2. Private a. Substantial and unreasonable interference with ’s use and enjoyment of land. b. May also be a trespass.

3. Remedies a. Money damages b. Injunction

1. Balance of hardships usually results in money damages being awarded, rather than injunction.

c. Abatement by self help after notice to and refusal by to take action. H. Misrepresentation

1. Intentional: Fraud or deceit. a. False representation made by . b. Scienter: Knowledge by that representation is false. c. Intent to induce to act or refrain from acting in reliance on false statement. d. Justifiable reliance by on misrepresentation. e. Damages for pecuniary loss.

2. Usually no liability for nondisclosure, unless: a. Fiduciary relationship between parties (executor/beneficiary, majority

shareholder/minority shareholder, bank/depositors) b. Active concealment c. Partial or incomplete statements: must disclose enough so that his statements

aren’t fraudulent. I. Defamation

1. Elements a. Defamatory language by

1. Adversely affects ’s reputation, honesty, integrity, virtue. 8

2. Inducement & Innuendo: Defamatory not on the face of the language, but by adding extrinsic facts. must prove these additional facts.

b. Statement must concern 1. Any living person may be defamed, but not deceased person. 2. Defamation of company or product: COA is trade libel, not defamation. 3. Reasonable reader/listener must understand that the statement was

concerning . 4. Group defamation is available.

c. Publication 1. Communication to TP. 2. Each repetition is actionable. Primary publisher and republishers are both

liable. d. Damage to ’s reputation

1. Slander per se or libel: Damage presumed. No need to plead or prove special damages.

2. Regular slander: must prove actual pecuniary loss as a result of defamatory statement, such as loss of job or prospective job. Loss of friends or humiliation is insufficient.

e. Fault on ’s part 1. Public figure

a. Pervasive fame or notoriety, or voluntarily injected themselves into public controversy.

b. must show malice (reckless disregard of the truth, or knowledge of falsity).

2. Private individuals a. has to show negligence. b. Malice gives punitive damages.

2. Libel: Written a. Libel per se: Injury to presumed by law. b. Libel per quad: Requires reference to extrinsic facts to establish defamatory

nature. 3. Slander: Spoken

a. Slander per se 1. Loathsome disease 2. Unchastity of a woman 3. Improper conduct in one’s trade, business or profession 4. Falsely accused of criminal offense or crime involving moral turpitude.

4. Defenses a. Truth: Absolute defense b. Consent c. Retraction is not a defense, but may mitigate damages. d. Absolute privileges

1. Judicial proceeding 2. Legislative proceedings 3. Executive proceedings

e. Qualified privileges 1. Job references: As long as former employer reasonably believed what he

said was true. Privilege lost if malice exists. 9

J. Right to Privacy 1. Appropriation: appropriates ’s name or likeness for ’s commercial advantage. 2. False light: places in false light or gives attributes which does not have. 3. Public disclosure of private facts

a. Facts must be private b. Disclosure must be objectionable to reasonable person c. No legitimate public interest

4. Intrusion on private seclusion: Evesdropping, peeping tom’s, unwanted phone calls. K. Other torts

1. Claims based on misrepresentations, and defenses 2. Claims based on intentional interference with business relations, and defenses

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II. Contracts A. Did the parties form an agreement?

1. Objective theory of K formation: Viewing the actions of the parties as a reasonable person, was a K formed? Public policy tends to presume that a contract was formed.

2. Was an offer made? a. Objective (reasonable) present intent to form present K.

1. State of mind: Hysterical, angry, etc. party may not have objective present intent.

2. Preliminary negotiations: Discussion of possible future business. Usually doesn’t contain extremely specific terms.

b. Content 1. Essential terms of the proposal.

a. Parties b. Subject matter c. Time for performance d. Price

2. Offer totally silent on a term may be indefinite. a. Common law interprets silence to impose a reasonable term

deduced from prior course of performance of the parties, or if none then general customs of the marketplace.

b. UCC between merchants: Merchants can agree to designate a term to be defined and determined in the future. Court will imply reasonable term if dispute occurs re: that term.

c. Communication of intent and content to offeree. 1. Offeror must intend to communicate with specified offeree.

3. Acceptance a. Offer still outstanding at time of acceptance?

1. Offeror can explicitly limit life of the offer and means of acceptance in the offer.

2. Lapse of time: Offer lives for a reasonable time. Consider perishability, volatility of price.

3. Acceptance arriving after offer expires is a counteroffer. 4. Death or destruction of subject matter terminates offer. 5. Death, insanity, or legal incapacity of either party. 6. Illegality of proposed subject matter, prior to acceptance (revocation by

law). 7. Rejection of offer by offeree. 8. Revocation by offeror prior to acceptance, even if offeror promises not

to, unless: a. Offeree purchased option (a K) b. Estoppell: Offeror promises to keep offer open a week, and

offeree relies to his detriment on that promise. c. UCC: Merchant’s firm signed written offer, even of offeree is not a

merchant, for up to 90 days. 11

b. Was the acceptance effective? 1. Present, unconditional, unequivocal ascent to each and every term of the

offer. a. Common law mirror image rule: Acceptance must not tamper

with any of the terms of the offer. If it does, acceptance is a counteroffer, and original offer is destroyed. Offer not destroyed if:

i. Offeror manifests willingness to keep offer alive (revival of offer);

ii. Offeree merely proposes that offeror explore different terms (but clearly not rejecting offer); or

iii. Acceptance contains terms which were not in the express offer but which are implied by law.

b. UCC: If both parties are merchants, acceptance forms a contract even if the acceptance contains different terms (unless offer was "take it or leave it" or acceptance was explicit rejection with counteroffer), and:

i. Different terms consistent with offer become part of K, unless offeror rejects new terms.

ii. Different terms inconsistent with offer become part of K only if offeror ascents.

iii. Inconsistency: Materially shift economic position, materially reallocate risk, or impair remedies otherwise available.

c. Grumbling acceptance is a valid acceptance. 2. Contract formed when acceptance is dispatched via commercially

reasonable manner, by at least as reliable as method used by offeror (otherwise K formed upon receipt by offeror). Even if offeror does not know acceptance has been dispatched.

c. Unilateral K 1. Public policy tries to interpret all K’s as bilateral. 2. Once offeree begins efficient substantial compliance, offeror can no

longer revoke offer. 3. Acceptance can only be by total and complete performance of designated

act. Until that point, offeree is not obliged to finish, and offeror is not liable if offeree does not finish.

4. Ambiguity, Mistake a. Ambiguity

1. When an essential term reasonably has either latent (hidden) or patent (obvious) ambiguity to both parties, no K is formed.

2. When an essential term reasonably has latent ambiguity to one party and patent ambiguity to another, the interests of the innocent party is protected, and the term is defined by the innocent party’s definition.

b. Mistake: Terms do not convey intention of one or both of the parties. 1. Mutual mistake about essence of K gives either party the right to rescind

the K. 2. Unilateral mistake of miscalculation leading to unwanted bargain, or TP

intermediary who screws things (the message) up: No remedy if other 12

party’s expectation was commercially reasonable; can rescind K if other party knew it was too good to be true.

3. No relief if party has made error in business judgment (SOL) 5. Parol evidence rule

a. Written K exists, and litigation has ensued. One party wants to bring evidence of a term or understanding which is not found within the four corners of the document.

b. Writing must be integrated: Both parties must have intended the writing to be the full and final expression of the terms of the agreement.

c. Is the evidence which the party seeks to bring related to any promise, representation or understanding between the parties which was arrived at prior to or contemporaneous with the formation of the integrated writing?

d. The parol evidence cannot be used to vary or add to the terms of the integrated writing. It can explain an ambiguity or explain a term.

e. Exceptions: 1. Proof of fraud 2. Proof of only partial integration (if the writing looks incomplete on its

face, or in CA upon proof of credible explanation of why the otherwise integrated writing was in fact not)

3. Collateral agreement: Parties in fact formed two agreements, and the parol evidence is the second agreement. Parol evidence agreement must be of less importance than the written agreement, and terms cannot contradict integrated writing. Documents must not be part and parcel of a single business deal (some obvious division between the two).

B. Is the agreement a K? Valuable consideration (focus) 1. A bargained for legal detriment on both sides of the exchange. My promise to perform

(or not perform) an act which, but for this bargain, I am not legally obligated to perform (or not perform). Past consideration is insufficient.

a. Not all of the acts have to be a legal detriment: Only one within the K for each party.

b. Applies to both bilateral and unilateral K’s. c. If fiduciary or confidential relationship exists, the bargain must be fair – not

merely containing legal detriments. 2. Defenses re: consideration

a. Want of consideration: Other party incurred no legal detriment. Illusory promise (either no promise or pre-existing duty). Defense to formation.

1. Full (not part) performance of the agreement cures the illusory promise. 2. UCC and common-law Lady Duff Gordon case eliminates this defense so

long as the parties in business transaction operate under a covenant of good faith dealing.

3. Pre-existing duty can be nullified by: a. Any alteration to the duty b. If one party can’t perform due to unforeseeable major difficulty in

performance (equitable rescission), other party can offer more money and agreement will be binding.

c. Accord & satisfaction: One party disputes duty to perform, other party pays more to secure duty, K is binding.

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d. UCC: If party cannot perform in good faith without additional money, and other party promises additional money, that promise is binding.

b. Failure of consideration: Admits formation, but other party has breached and consideration has failed, and therefore I don't have to perform.

c. Inadequacy of consideration: The bargain was stupid. No defense, unless fiduciary or confidential relationship.

C. Defenses 1. Statute of frauds

a. Oral K is fine, but can’t recover for breach of K with subject matter covered under SoF.

b. K subjects covered 1. Real property or permanent fixture thereon 2. Sale of goods if price > $500, except:

a. If seller has delivered and buyer has accepted; b. If both parties are merchants and a written confirmation of the

terms sent by one party to another so long as no prompt objection by other party; or

c. Special custom made goods not suitable for ordinary resale. 3. Any K incapable of being performed within one year. N/A if any possibility

of performing K within one year, even if isn’t actually performed within that year.

c. Those subject matters require a memorandum of essential terms signed by the party to be charged ( ). Need not be the entire integrated K – all we are looking for is evidence of the terms.

d. This is a personal defense for who can use to void the K, if timely asserted. e. SoF applies to remedy at law, not equitable remedy, so if has partially

performed, can try to get equitable remedy. 2. Capacity of parties (makes K voidable)

a. One of the parties is a minor. Exception if minor has received benefits from K providing necessaries: food, clothing, shelter, medical attention, in which case can recover in quasi-K for market value of benefits.

b. Lack of mental capacity, either permanent or temporary. Exception if person has received benefits from K providing necessaries: food, clothing, shelter, medical attention, in which case can recover in quasi-K for market value of benefits. If drugs or alcohol caused the incapacity, if knew, is SOL.

c. Lack of capacity (agency) 3. Content of bargain

a. Illegality 1. If subject matter became illegal when offer was outstanding but not

accepted, offer is revoked. 2. If offer has been accepted, but K not fully performed, party can claim

objective legal impossibility at common law, but UCC requires merchant to try to find legal substitute which other party accepts before avoiding liability.

3. If subject matter or performance is "intrinsically illegal" (malum in se), K is void. Court would not help with restitution.

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4. If subject matter is not evil in itself, but merely against a regulation (malum prohibito), K is void. Court will help with restitution for market value of services under quasi-K if was unaware of regulation, or even if aware of regulation if a member of the class of people the regulation was intended to help (i.e. child labor laws).

b. Unconscionability 1. Contrary to public policy, such as one party selling something inherently

dangerous who tries to disclaim all warranties, or some K’s of adhesion. 2. Court can either void the K, or more likely equitably "blue line" the K to

eliminate the oppression and surprise of the K. 4. Tactics

a. Fraud 1. Fraud-in-fact: Any contrivance to deceive victim from even knowing a K

existed. 2. Fraud-in-inducement: Victim was seduced into K by lies or half-truths. 3. Fraud-in-execution: Victim enters into oral K trusting that written K will

represent oral, and signs writing without reading. b. Constructive fraud c. Duress

1. Personal: Physical or mental force makes K voidable. 2. Economic: Victim has desperate pressing need for subject matter at the

direct or indirect cause of other party, and other party takes advantage of that need with harsh and one-sided terms.

d. Overreaching 5. Procedural unconscionability

a. K whose important terms are in legalese and fine-print, targeted at consumers, intending to prevent victims from understanding what they are consenting to.

6. Promissory estoppel a. No K need exist. Valuable consideration may not have existed. No statute of

frauds analysis. b. must show he has been unjustly impoverished due to justifiable reliance on ’s

promise. 1. Promise reasonably foreseeable to induce reliance. 2. did actually reasonably rely on promise to his detriment. 3. breached 4. was damaged. Remedy: Put back where he was before promise was

made. D. Third party rights or duties (common law only)

1. TP beneficiary a. Intended beneficiaries

1. Status a. Party "A" of K promised that performance would be delivered to

TP b. Party "B" of K intended "A"’s performance to benefit TP. c. Example: B calls A and pays A to deliver goods to TP.

2. Rights are defined by terms of K. 3. Rights vest when:

a. TP learns of K and changes position in detrimental reliance; 15

b. TP brings suit to enforce rights; or c. TP expressly consents to receive performance under K.

4. Once rights are vested, K cannot be modified or rescinded by parties. a. Accord & satisfaction is not available. b. TP can bring suit for tortious interference with K rights against

party trying to tamper with the K. 5. Can bring suit to remedy breach of vested rights.

a. Any defense that would have had against another party to the K can be used against TP (i.e. no real K, other party had already breached by failure of consideration, statute of frauds, etc.).

b. TP is vulnerable to counterclaims (breach by party A with recovery by party B will offset any recovery TP can get), but not setoffs.

c. TP can never have any liability for the K – only benefits. d. Party who paid for benefit to TP cannot recover at law for breach:

Only TP can. But in equity, party can request specific performance, or value of payment in quasi-K, or in promissory estoppel. NO remedy ever for party if TP has brought suit.

b. Incidental beneficiaries: Not an intended beneficiary. No rights. 2. Assignment of rights to TP

a. One of the parties, after K, seeks to assign his right to receive performance or delegate his duty to perform to an assignee/delegate not mentioned in K.

1. Common law favors ability to assign and delegate. 2. Consent of other party to K not required. 3. Assignment or delegation is improper when result is to prejudice

performance owed to other party. 4. Oral is ok, and no consideration needed (but see revocation).

b. Present assignment: Manifestation of present intention by party to achieve present transfer of present rights to TP.

1. Rights transferred must be under a current K – not a future one, unless existing economic relationship.

2. Subject matter must be clearly identified to TP. 3. Assigning party must not retain any powers.

c. Operative? 1. Nonassigning party not bound if assignment materially alters nature or

extent of duties or risk assumed. Example: Personal services usually can’t be assigned, nor can insurance policy coverage.

2. Contract terms which restrict right to assign are invalid if assignee is a BFP who is ignorant of the prohibition term. Obligator must perform, but can bring suit against assignor for breach of covenant not to assign.

3. Contract terms which extinguish power to make the assignment are enforceable. This can be done by a rescission clause which revokes K upon assignment, or a provision which treats assignment as triggering an express condition subsequent which extinguishes other party’s duties.

a. BFP assignee can sue assignor for breach of implied warranty that assignor has right and power to make present, operative assignment and won’t interfere with quiet enjoyment.

d. Revocable by assignor? 1. Revocable if oral and no consideration.

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2. All other assignments are irrevocable. a. No right to revoke if in writing and writing is delivered to TP, even

if no consideration. b. No right to revoke if consideration was paid (BFP), even if

assignment was oral. c. TP who paid consideration can sue assignor for breach of implied

warranty that assignor has right and power to make present, operative assignment and won’t interfere with quiet enjoyment.

d. If multiple TP’s: Ones who paid value supersede those who don’t. Among value payers, in CA the first to provide notice of assignment to obligor wins; in the rest of America (the American Rule), the first person who paid consideration wins.

e. Remedy 1. If obligor breaches, only assignee can sue, because assignee stands in the

shoes of assignor. Any defenses which obligor could have brought against assignor can be used against assignee, including setoffs which matured at time of notice and counterclaims.

3. Delegation of duties to TP a. Subsequent to formation, one party (delegator) finds TP (delegate) to assume

primary responsibility for value (K). 1. Other party has an affirmative duty to cooperate in receiving

performance from TP. 2. TP’s breach gives other party the right to sue either TP as an intended

beneficiary of the second contract, or delegator under the first contract (in which case delegator may implede delegate for breach).

b. Delegation is null and void if materially prejudices or threatens the commercially reasonable interests of other party.

E. Maturity of obligations (conditions) (focus) 1. Conditions vs. covenants

a. Conditions allocate risk in the event of breech and determine breach. b. Vague language is construed as a covenant.

2. Types a. Preceedent

1. Contingency must be satisfied before absolute present duty to perform the modified or dependent promise. Shifts risk of breech to other party.

2. "I am not liable on this promise until …" or "I’ll do B, provided that you do A" (A is both a covenant and a condition)

3. If the condition is to be satisfied by the subjective personal satisfaction (taste, aesthetics) of a party, in good faith, then the test is whether a reasonable person would be satisfied.

a. Exception: K names specific third party expert to make a good faith professional approval, if that person withholds approval in good faith, condition not satisfied.

b. Concurrent 1. Contingency must be satisfied simultaneously with maturity of liability. 2. Usually implied-at-law, not express. Used to regulate performance when

parties did not otherwise specify.

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3. If performance obligations are physically capable of being performed at the same time, then mutual tenders (ready, willing and able to perform) are required.

c. Subsequent 1. Always express, never implied. 2. Operates as an affirmative defense to breach. 3. Occurrence will extinguish a present liability to perform promise. 4. Example: Your attempted assignment of rights extinguishes my liability.

3. Forms a. Express b. Implied-in-fact

1. Inferred from physical necessity and reasonable assumptions of the parties (you can’t paint a house that just burned down – although that would not cause a breach because no fault).

2. Promise to cooperate in good faith in receiving other party’s performance.

c. Implied-at-law (constructive): Applies when parties failed to fix an order of performance.

1. If performance can physically be rendered concurrently, then performance is a condition concurrent.

2. If one party’s performance takes time, and other party’s can be performed quickly, the first party’s performance is a condition precedent.

3. If terms set date for performance by one party but not the other, first party must perform as condition precedent to other party’s performance.

4. Substantial performance is adequate. 5. Conditions of exchange: Excuse or suspension by material breach 6. Immaterial breach and substantial performance 7. Independent covenants 8. Constructive conditions of non-prevention, non-hindrance, and

affirmative cooperation 4. Has the condition been satisfied?

a. Express condition must be satisfied precisely. b. Constructive conditions require only substantial performance.

5. Has the condition been excused? a. Doctrine of prevention: Party can’t hinder other party’s performance. b. Waiver: Once covenant or condition is knowingly waived, it cannot be reclaimed.

Express or implied from behavior. c. Equitable estoppel: Can be reversed before other party relies to his detriment.

6. Obligations of good faith and fair dealing in performance and enforcement of K’s 7. Prospective inability to perform; effect on other party.

a. Anticipatory repudiation 1. Definite, unyielding refusal to perform is treated as a breach, even before

liability to perform matures. 2. His conditions precident are excused, my covenants are discharged,

immediate COA for breach exists. Or, I can affirm the K in face of anticipatory breach by notice that I am awaiting your repentance or performance under the K.

b. Voluntary disablement 18

1. Credible information learned that other party has taken some action which puts his performance beyond his control.

2. All covenants of non-breaching party discharged; non-breeching party must bring immediate COA.

3. Breaching party cannot remedy. c. Failure to give adequate assurances of performance (UCC only)

1. In face of reasonable insecurity that merchant seller is unlikely to be able to perform, you can make written demand for adequate assurances of performance, and unless merchant gives adequate assurances within commercially reasonable time, you can treat as present breach.

2. My covenants suspended pending receipt of adequate assurances. F. Has nonperformance been excused?

1. Objective impossibility a. Subsequent to formation of bargain b. Physical or legal barriers c. Objective: No person on the face of the earth could perform.

2. Commercially impracticable. a. Cannot be performed except by economic expenditure grossly beyond what is

commercially reasonable. b. Unanticipated by either party at formation date.

3. Frustration of purpose. a. Subsequent to formation of bargain, circumstances are such that your

performance is of no utility to me, and therefore I seek to have my performance to you excused.

G. Breach 1. UCC

a. Duty to promptly inspect goods tendered. b. Prompt and specific notice of nonconformance. c. Perfect tender rule

1. Buyer may reject all, some or none of the goods for any nonconformity, and pay for goods accepted.

2. If seller tendered early, he has until K date deadline to perfectly perform (unless he states he won’t), and nonbreaching party must cooperate.

3. If got most of the goods, can request extra time and has to cooperate, but doesn’t have to prejudice commercial interests.

4. must seek and follow ’s instructions re rejected goods, and follow reasonable instructions at ’s expense, or use self help to preserve the rejected goods to conserve commercial value (including resale & cover, liable for costs).

d. Failure to follow above procedures = waiver. 2. Material

a. Essence of the bargain b. Breach results in immediate COA.

1. Common Law: Non breaching party must stop his performance, and must mitigate damages.

3. Minor a. Impaired bargain only in insignificant sense re: quality, quantity or time.

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b. Nonbreaching party must continue with performance. Sue for provable damages.

4. Evaluation a. Commercially reasonable expectations of the parties b. Consequenses of breach c. Effect of consequences on expectations

5. Remedies (focus) a. Money damages

1. Loss of bargain (expectation): Puts in position had there been full and timely performance. Measured by K-FMV.

a. Damages must have been directly caused by breach. Costs of entering into K can’t be recovered because they weren’t caused by breach.

b. Damages must have been reasonably foreseeable at time of bargain as the probable damages resulting from breech of the terms of the K (or damages resulting from special needs of party known to breaching party).

c. has duty to reasonably mitigate damages. d. Losses must be proven to a certain dollar amount.

2. Nominal a. $1 money damages. b. Equity, if no adequate remedy at law

i. Specific performance ii. Injunction against breach

iii. Declaratory judgment 3. Restitution and reimbursement

a. Reliance: Out of pocket losses reimbursed, based on theory of promissory estoppell.

4. Liquidated damages a. Cannot be a penalty clause, which is void against public policy. b. Breach must have been anticipated, and foreseen that legal

damages would not be sufficient because amount would be difficult to estimate, and therefore liquidated damages are adopted as a remedy.

c. Damages must be remedial in nature: Not to deter the person from breech.

b. Election of substantive rights and remedies c. Rescission and reformation d. Remedial rights of defaulting parties

H. UCC Applicability 1. Subject matter: Goods.

a. Not any interest in land. b. Not rendition of services. c. Not an intangible.

2. Parties a. Between merchants (default on the bar)

1. A person who makes a livelihood by dealing in the subject matter, or represents that he does.

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2. Triggers the harshest provisions of the UCC in modifying the common law.

b. Between non-merchants, or merchant/non-merchant

III. Criminal Law A. Types of crimes

1. Felonies: Punishable by death or imprisonment of more than one year, regardless of actual sentence.

a. Common law: Burglary, arson, robbery, rape, larceny, murder, manslaughter, mayhem.

2. Misdemeanors: Punishable by fine or imprisonment of less than one year. a. Common law: Assault, battery.

1. Therefore, murder during the course of a misdemeanor, including assault and battery, were at common law "misdemeanor murder" not "felony murder".

3. Malum prohibitum a. Forbidden by statute. b. Speeding, failure to register firearm

4. Malum in se a. Evil in itself.

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b. Rape, DUI. B. General principles & elements

1. Actus reus a. Voluntary b. Conscious

1. Not sleepwalking c. Act

1. No duty to render assistance to person in peril, except: a. Family relationship b. Legal duty

i. Lifeguard’s duty to save someone (K) ii. Failure to file income tax (statute)

c. Creation of peril d. Assumption of care exists: Must follow though, and must not

make situation worse than it was when you found it. 2. Mens rea: Guilty state of mind

a. Levels of mental state 1. Intention 2. Knowledge 3. Recklessness: Conscious disregard of subjective awareness of substantial

risk of death or serious bodily injury. 4. Negligence

b. Requirement of intent 1. Strict liability

a. No defenses, including mistake. 2. Vicarious liability

a. One person, due to relationship with wrongdoer, is criminal liable. i. Boss liable for employee

ii. Tavern owner responsible for bartender’s wrongdoing 3. General intent

a. Rape, battery, arson, involuntary manslaughter, depraved heart murder.

b. Intoxication is not a defense. c. Mistake of fact is a defense so long as reasonable.

4. Specific intent a. Larceny, burglary, false pretenses, theft, inchoate offenses,

voluntary manslaughter, premeditated murder. b. Intoxication is a defense. c. Mistake of fact is a defense, so long as honest, even if

unreasonable. 3. Concurrence of actus reus plus mens rea 4. Causation

a. Hastening the inevitable death of another is still murder. b. Transferred intent: A’s intent to kill B is transferred to C when the bullet misses B

and kills C. c. Intervening acts

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1. Foreseeable intervening acts: Original wrongdoer is criminally liable for consequences of his act, plus acts of intervenor. It is foreseeable that a doctor or nurse would be generally negligent in treatment.

2. Unforeseeable intervening act: Breaks chain of causation and relieves original wrongdoer of act. It is unforeseeable that a doctor or nurse would be grossly negligent in treatment.

d. Harm or injury suffered by victim C. Defenses

1. Insanity a. Bifurcated trial: First trial determines guilt, and if guilty, second trial determines

insanity. b. Tests: Results in not guilty by reason of insanity, followed by commitment of to

mental institution. 1. McNaughten (majority): Defendant relieved of criminal responsibility if at

time of commission he had such a defect of reason from disease of the mind (any mental abnormality) that he did not know the nature and quality of the act he was doing, or if he did know, he did not know what he was doing was wrong.

2. Irresistable impulse: Defendant not guilty where he had a mental disease which keeps him from controlling his conduct.

3. Durham: Defendant not guilty if unlawful act was the product of mental disease or defent.

4. Model Penal Code: No responsibility if at the time of the conduct as the result of mental disease or defect he lacked substantial capacity to appreciate the criminality or wrongfulness of conduct or conform conduct to requirement of law.

c. Diminished capacity: As a result of mental defect or disease, did not have required state of mind required for the offense. Results in not guilty of offense charged, but found guilty of a lesser offense.

2. Intoxication (drugs or alcohol) a. Voluntary: Defense to crime requiring specific intent if the intoxication prevents

from formulating required intent or knowledge. b. Involuntary (taking substance without knowledge of nature, under duress, or

pursuant to medical advice): Similar to McNaughted insanity test. Defense if it puts in such a state of mind that he cannot appreciate the nature and quality of act he was doing, or did not know the act was wrong.

3. Infancy a. Common law

1. Children < 7 presumed to be without capacity. 2. Children 7 > 14 had rebuttable presumption that they lacked criminal

capacity. 3. Children > 14 held responsible as adults.

b. Modern law: Juvinile courts will handle the child, either concurrently with adult court or exclusively.

4. Justification and excuse a. Self defense: has reasonable belief of imminent danger of unlawful bodily

harm, may use amount of force reasonably necessary to prevent the harm. 1. Deadly force: Threatens death or serious bodily injury.

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2. Nondeadly force: Threatens only bodily injury. b. Right of aggressor: Self defense is usually not available, but becomes available

upon complete withdrawl from other party followed by attack by victim; or escalation of force by victim after aggressor’s attack attack.

c. Defense of others 1. Maj. view is same as self defense where has reasonable belief of

imminent danger of unlawful bodily harm against TP. 2. Min. view is "alter ego" where right to defend is limited to situations

where person being defended is justified in using self-defense. d. No duty for victim to retreat. e. Defense of property: No deadly force can be used. Reasonable nondeadly force

not likely to use serious bodily harm can be used. No spring guns. 5. Law Enforcement

a. PD can use the amount of nondeadly force which he reasonably believes necessary to arrest or prevent escape. Deadly force can be used to prevent commission of dangerous felony or arrest person reasonably believed to have committed felony.

b. Private citizen can use reasonable amount of non-deadly force to prevent felony or misdomeanor, or to make an arrest where crime has been committed and citizen reasonably believes that person has committed the crime. Citizen can use deadly force only when dangerous felony has been committed and person who force is used against has in fact committed the felony.

c. Resisting unlawful arrest: can use reasonable nondeadly force to resist unlawful arrest. Can resist lawful arrest by PD only if does not know arresting person is a PD.

6. Necessity & Duress a. Necessity: reasonably believes that criminal conduct is necessary to avoid

imminent injury resulting from natural, nonhuman sources. Example: Killing one person to save two others. Firefighter who destroys property to prevent greater spread. Does not encompass killing someone to save yourself.

b. Duress: reasonably believes only way to avoid unlawful threats of great bodily harm from another person or imminent death is to engage in unlawful conduct.

7. Domestic authority: Parents or one in loco parentes may use reasonable force to promote child’s welfare.

8. Entrapment: Intent to commit crime originated with law enforcement officers. Elements:

a. Criminal design originated with law enforcement b. not in any way predisposed to commit crime.

9. Mistake a. Mistake of fact is a defense if it negates a material element of crime or specific

mental state required for commiting crime. 1. Specific intent crime: Available even if unreasonable, so long as honest. 2. General intent crime: Available only if reasonable.

b. Mistake of law is no defense. Exceptions: 1. When does not know act is a crime and notice of act has not been

made available to the public. 2. When reasonably relies upon official statement of law subsequently

determined to be invalid. 24

10. Consent of victim a. Fraud or deceit negates the consent. b. Battery, rape.

D. Inchoate crimes; parties 1. Inchoate offenses

a. Solicitation 1. Solicitation, enticement, advises, counsels another person to commit an

unlawful act. 2. When the criminal act is completed, the solicitation merges into the act.

b. Attempt 1. Specific intent to commit target offense 2. Substantial step in furtherance of the crime. Preparation is not enough. 3. When criminal act is completed, the attempt merges into the act. 4. Impossibility defense:

a. CL: Factual impossibility is no defense; legal impossibility is. [use this on the MBE]

b. MPC: Impossibility is not a defense when actual intent is to commit the criminal act.

c. Conspiracy 1. Specific intent to commit target offense 2. Agreement between two+ individuals to commit offense. 3. Each coconspirator is liable for all foreseeable crimes committed by other

conspirators in furtherance of conspiracy. 4. Must have at least two guilty parties for a conviction: If one of two

parties is acquitted, the other can’t be convicted. 5. No merger with completed crime (exceptions below). 6. Wharton Rule:

a. Applies to bigamy, incest, adultery, dualing, and bribery. b. When the two participants are convicted, the conspiracy merges

into the crime, and can’t convict for conspiracy and act due to double jeopardy.

7. Defenses: Withdrawal is not a defense, unless party informs all other conspirators and thwart the success of the criminal endeavor.

2. Parties to crime a. Principle in the first degree: Perpetrator. b. Accomplice: Aid, abet, or encourage in the commission of the crime, with intent

that the crime be committed. Criminally liable for all consequences which are foreseeable.

1. Principle in the second degree: Aids, abets, encourages, and present during commission, but doesn’t actually commit crime. Example: Getaway car driver.

2. Accessory before the fact: Aids, abets, encourages commission of crime, but not present during commission.

c. Accessory after the fact: Obstructed justice. Assists perpetrator after crime has been committed.

E. Homicide 1. Intentional killings (1st degree)

a. Premeditation or deliberation 25

2. Intent to inflict serious bodily injury (2nd degree) 3. Felony murder (1st degree)

a. All participants held liable for murder for any murder that occurs during the commission of a serious or inherently dangerous felony (BARRK: Burglary, Arson, Rape, Robbery, Kidnapping).

b. Causal connection between underlying felony and murder. c. Exception where the killing is a justifiable homicide, i.e. where PD is the shooter.

4. Depraved heart murder (2nd degree) a. Unintentional killing resulting from ’s recklessness (100 MPH on a busy street;

Russian roulette – survivor guilty; firing gun near someone). 5. Involuntary manslaughter

a. Criminal negligence: Gross or wanton negligence. 1. Unintentional killing resulting from gross or wanton negligent conduct

(100 MPH on back country road at 3am). b. Unlawful act or misdemeanor manslaughter

1. Assault or battery resulting in unintended death. 2. Nondangerous felony (i.e. larceny) resulting in death.

c. Failure to act when duty exits. 6. Voluntary manslaughter

a. Intentional killing, such as in the heat of passion, or where acts with reasonable (objective) adequate provocation (although MPC is subjective).

b. Imperfect self-defense, such as where started confrontation, or used excessive force.

F. Other crimes 1. Assault and battery

a. Battery: Unlawful application of force to the person of another resulting in a touching. General intent crime: No intent required, so long as careless or negligent.

b. Assault 1. Attempted battery (maj): has specific intent to commit battery. 2. Intent to frighten (min): Unloaded gun. 3. Aggrivated assault: Punished more severely. Assault with loaded gun.

2. Mayhem a. Intent to maim or do bodily injury by act which either dismembered or disabled

use of bodily part. 3. Kidnapping

a. Unlawful restraint of personal liberty by show of force, to send victim into another location.

4. Rape; statutory rape a. Nonconsensual sexual intercourse with a woman against her will. b. Statutory rape is a strict liability crime. Mistake of age is no defense.

5. Theft a. Larceny

1. Treaspassory (no permission) taking carrying away (slight distance ok) of the personal property of another with the intent to steal.

2. Continuing trespass: Taking something without intent to steal, or with permission, and later deciding to steal it.

3. Defense 26

a. Intent for temporary use followed by return within reasonable time.

b. Finder of lost/mislaid property: Guilty only with intent to steal property at time of finding, and either know or be able to find out owner’s identity.

4. By trick: Taking is accomplished by lies, deceit or false statements. b. False pretenses

1. Similar to larceny by trick, but in larceny only possession passes – not title. With false pretenses, gets possession and title.

2. Usually indicated by the exchange of money. 3. Intent to defraud victim. 4. Credit card fraud, mail fraud, confidence game schemes, violation of blue

sky laws (worthless securities), bad checks. c. Embezzlement

1. Fraudulent conversion or misappropriation of the personal property of another by one who is in lawful possession (bailment).

2. Defenses a. Claim of right b. Intent to return the property taken

d. Robbery 1. Tresspassory taking carrying away personal property of another with

intent to steal (same as larceny) 2. Taking is from victim’s person or presence 3. Taking accomplished by force or intimidation (snatching is usually not

enough, unless victim is aware and resists). Intimidation must be threat of immediate bodily injury or death – not future harm, which arouses reasonable fear.

4. Armed robbery even if gun was a toy or unloaded. 6. Receiving stolen goods

a. Receiver has actual or constructive knowledge that the property is stolen. b. Buying a TV for $5 out of the back of a van under suspicious circumstances is

constructive knowledge. 7. Burglary

a. Breaking and entering of the dwelling house of another at nighttime with intent (at time of breaking and entering) to commit larceny therein.

1. Walking in a wide open door is not breaking, but having to open the door any amount is breaking.

2. Constructive breaking: Entering by fraud, intimidation, or chimney. 3. Dwelling house includes any place of human habitation, including hotel or

trailer. Barns would be included as long as part of the curtilage of the main house. Business included if usually slept in by proprieter, or attached to residence.

8. Arson a. Malicious burning of the dwelling of another. b. Does not have to be intentional: Malicious or recklessness is enough. c. Charring is enough.

G. Constitutional protection of accused persons (focus) 1. Arrest, search and seizure

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2. Confessions and privilege against self-incrimination 3. Lineups and other forms of ID 4. Right to counsel 5. Fair trial and guilty pleas 6. Double jeopardy 7. Burden of persuasion: Beyond a reasonable doubt. 8. Affirmative defense requires to initially produce some evidence, then burden shifts to

to persuade beyond reasonable doubt.

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IV. Evidence A. Presentation of evidence (focus)

1. Introduction of evidence a. Requirement of personal knowledge b. Refreshing recollection

1. Memory can be refreshed by means of leading Q or a writing (even if W didn’t prepare it), either before or while testifying, at discretion of court. Witness must testify without looking at writing (i.e. give to witness, exam, give back to attorney, testify). O/C has right to inspect document, use for cross, and introduce relevant portions of writing.

c. Objections and offers of proof 1. Objections

a. Where trial court admits evidence, timely and specific objection to admitted evidence must be made to preserve issue for appeal, unless plain (prejudicial) error is involved.

i. Timely: Before witness answers, unless need to object not apparent, in which case motion to strike is proper.

2. Offers of proof a. Where trial court excludes evidence, no error on appeal can be

established unless offer of proof was made, or reason was apparent from context.

b. Method: Oral or written explanation, or Q&A format. 3. Preliminary questions of admissibility

a. Determined by trial judge as a matter of law. i. Qualifications of witnesses

ii. Existence of privilege iii. Unavailability iv. Weight and credibility of evidence is a question for the

jury. b. Affidavits and hearsay allowed

4. Conditional Relevancy: Where relevancy of proffered evidence depends on existence of other fact, evidence admissible until evidence produced re: nonexistence of other fact.

5. Hearings on objections/admissibility a. Done outside presence of jury b. Testimony by criminal as to preliminary issue does not

constitute waiver of 5th as to other issues. 6. Introduction of parts of a writing: Once part of a writing or recorded

statement is introduced, adverse party may request admission of any parts.

d. Lay opinions 1. Must have personal knowledge: Actually perceived or observed event. 2. Nonexpert may testify in the form of opinions or inferences if:

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a. Rationally based on perception of witness; and b. Helpful to fact finder for clear understanding of W’s testimony

3. Scope a. Speed and other physical measurements, but not legal conclusion

such as "reckless driving" b. Identity of person c. Sensory descriptions d. Value of property e. Familiarity with person’s handwriting f. Sanity, but not mental incompetency g. Physical condition ("he appeared drunk" but not "he’s an

alcoholic") e. Expert testimony and scientific evidence

1. Qualification of witnesses a. Special knowledge, skill, training, education or experience b. Opinion must be helpful for finder of fact to understand

testimony c. Opinion within expert’s field of expertise.

2. Bases of testimony a. Facts perceived by expert or made known to expert at or before

trial b. Facts reasonably relied upon by experts in particular field, even if

those facts aren’t in evidence or are inadmissible hearsay c. Expert does not need to give reasons for opinion on direct, but

may be required to on cross. 3. Ultimate issue rule: Expert witness may give opinion on ultimate issue

("did testator have mental capacity to make a will?" but not "did T have legal capacity?").

4. Expert may not given opinion as to whether criminal did or did not have particular mental state which is an element of the crime.

5. Reliability of scientific evidence f. Competency of witnesses

1. Witness must take oath or affirmation to testify truthfully 2. Witness must show mental capacity sufficient to understand obligation to

tell the truth 3. Witness must have personal knowledge 4. Interpreters are allowed if they qualify as expert witness and take oath to

testify truthfully. 5. Any additional requirements imposed by states. 6. Dead man’s statute: Lawsuit involving dead person cannot use testimony

regarding transaction involving deceased. If the state has a dead man’s statute, federal court will follow it.

g. Judicial notice: Court will accept certain facts as true, dispensing with need for presentation of formal evidence. Can be done at any stage of the proceeding.

1. Legislative facts: Relevance to legal reasoning and lawmaking process. 2. Adjudicative facts: Facts in the case which are not subject to reasonable

dispute because it is either:

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a. Generally known within geography of the court (name of road in same town as court)

b. Capable of unquestionable accurate and ready determination (time of sunset on particular day).

3. Discretionary, on court’s own motion a. Laws of foreign countries b. Laws of sister states c. Municipal ordinances d. Regulations of public or private agencies e. Matters of local geography f. Economic data: Insurance rates, interest rates, customary salaries

paid, current events, political events, trademarks, patents. 4. Mandatory

a. State and federal law b. Indisputable scientific facts (blood test to prove paternity, radar,

ballistics test. c. Adjudicative facts, upon request by party, when supplied with

adequate supporting information. 5. Party against whom judicial notice is taken has a right to be heard, either

before or after notice is taken (at court’s discretion). 6. Effect

a. Civil cases: Judicially noticed facts are indisputable. Jury must accept as conclusive.

b. Criminal cases: Jury may accept as conclusive facts which are judicially noticed.

h. Roles of judge and jury 1. Neither judge nor any jury member can testify in trial they are sitting in.

i. Limited admissibility 1. Court may allow evidence for one party or one purpose but excluding for

another. 2. Presumptions

a. Burdens 1. Production: Party must introduce initial evidence on an issue, or risk

directed verdict against the party. Generally on the . 2. Persuasion: Degree to which the party must convince trier of fact re:

issue. a. Civil: By a preponderance of the evidence. b. Civil based on crime (fraud): Clear and convincing evidence. c. Criminal: Beyond reasonable doubt.

3. Affirmative defenses a. has burden of persuasion to prove all issues beyond reasonable

doubt. b. either has to show some evidence of affirmative defense,

followed by showing issue beyond reasonable doubt, or show affirmative defense by by preponderance of evidence.

b. Presumption 1. Inference jury must draw which shifts burden of production to opposing

party. 31

a. Basic facts, once established, gives rise to presumed facts, subject to other party producing evidence contradicting presumed facts.

2. Irrebuttable presumption: Basic facts conclusively establish presumed facts. Example: Child under certain age incapable of committing intentional tort.

3. Criminal cases: Presumptions are constitutional, but only permissive presumptions, which allows jury to use presumption, but they don’t have to.

a. If presumed fact establishes guilt or is an element of the offense, court must instruct jury that existence of presumed fact must be proved beyond reasonable doubt.

3. Mode and order a. Control by court b. Scope of examination c. Form of questions

1. Leading Q’s only re: a. Preliminary background information b. Examination of expert witnesses c. Child witnesses d. Adverse witness e. Refresh recollection f. Or on cross-examination

d. Exclusion of witnesses 4. Impeachment, contradition, and rehabilitation

a. Procedure 1. Credibility may be attacked by any party. 2. Own party would impeach own witnesses when:

a. Hostile witness b. Testimony is positively harmful to calling party’s case c. Where one party calls opposing party as witness (adverse

witness), in which case impeachment can come before direct examination.

3. Forms a. Intrinsic: Evidence brought out from mouth of witness herself. b. Extrinsic: All other evidence not from mouth of witness.

4. Collateral matters a. When offered to impeach, collateral matter evidence can be

inquired into intrinsically on cross examination of the witness, subject to discretion of judge. Example: Prior statements, or knowledge that witness testifying to character of party knew of party’s prior crimes. Extrinsic evidence (statements of other people) can not be introduced.

b. Inconsistent statements and conduct 1. Foundation: Witness need only be given opportunity to explain or deny

statement on direct or cross. 2. Any inquiry permitted regardless of relevancy, but witness’ response

limited by collateral matter rule (TP can’t be called to refute witness’ answer re: collateral matter).

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c. Bias and interest 1. Always material, never collateral. Impeachment can occur by intrinsic

questioning or extrinsic testimony. Foundation requires asking witness about facts that form basis for bias.

a. Interest in outcome b. Economic or marital relationship c. Hostility or favortism d. Fee paid to expert witness

d. Conviction of crime 1. Felony convictions used to show bad character: Admissible if probative

value outweighs prejudicial effect. 2. Crimes bearing on untruthfulness: Judge has no discretion to exclude.

Crimes can’t be introduced if committed more than 10 years ago, unless court determines probative value exceeds prejudicial effect and advance written notice to opposing party is given.

a. Introduce by asking witness who committed the crime, or offering certified copy of conviction.

b. Pardoned conviction inadmissible. c. Juvinile conviction inadmissible against , but admissible at

discretion of court against witness. d. Appealed conviction is admissible, but witness can show that the

appeal is pending. e. Specific instances of conduct

1. Prior unconvicted bad acts relating to truthfulness: Q’s on cross-examination may inquire, but no more.

f. Character for truthfulness 1. Reputation and opinion evidence of witness’ character for

untruthfulness: Both allowed, but limited to character trait for untruthfulness.

g. Ability to observe, remember, or relate accurately 1. Sensory defects: Intrinsic or extrinsic evidence re: ability of witness to

perceive, observe or remember. Foundation requires prior questioning re: sensory deficiency ("do you normally wear glasses?").

h. Impeachment of hearsay declarants i. Rehabilitation of impeached witnesses j. Religious beliefs are inadmissible to attack credibility.

5. Proceedings to which evidence rules apply B. Relevancy and reasons for excluding relevant evidence

1. Probative value a. Relevancy

1. Logical relevancy: Tendency to make the existence of a fact of consequence to determination of the action more probable or less probable than it would be without the evidence.

a. Involves circumstantial evidence only – not direct evidence. i. Direct evidence: Does not depend on an inference for its

relevancy. ii. Circumstantial: Relevancy depends on an inference.

b. Specific types 33

i. Other prior accidents can be introduced to prove that a dangerous situation existed, or that was aware of a dangerous condition, IF establishes substantial identity of material circumstances.

ii. Absence of similar accidents to show due care can be introduced IF substantial identity of material circumstances, and if party can show that if an accident had occurred, it would have been observed.

iii. Prior tort claims can be used to show ’s common scheme (i.e. 5 whiplash injuries).

iv. Prior K’s between parties to show prior course of dealing. K’s with TP’s to show usage of trade.

2. Legal relevancy: Otherwise relevant evidence is excluded for policy reasons (balancing test).

3. Probative: Evidence must have some logical tendency to prove or disprove a fact of consequence.

4. Materiality: Evidence bears on a fact or consequence re: particular matter before the court.

b. Exclusion for unfair prejudice, confusion, or waste of time 1. Unfair prejudice

a. Subject to appellate review 2. Confusion of issue

a. Subject to appellate review 3. Misleading jury

a. Subject to appellate review 4. Undue delay 5. Waste of time 6. Needless presentation of cumulative evidence

2. Authentication and ID a. Real and demonstrable evidence must have foundation laid to authenticate by a

showing of evidence "sufficient to sustain a finding that the matter in question is what the proponents proclaim."

1. Examples of evidence a. Documentary evidence b. Physical evidence c. Evidence used for purpose of explanation (maps, models)

2. Authentication a. Testimony re: personal knowledge b. Distinctive markings c. Chain of custody

b. Scientific evidence or tests 1. Requirements

a. Device must be in proper working condition b. Device must be operated by a qualified individual c. Techniques must be generally accepted in scientific field

c. Handwriting 1. Lay person with familiarity, so long as familiarity wasn’t acquired for

purposes of litigation. 34

2. Comparison by expert witness. 3. Comparison by trier of fact.

d. Telephone conversations 1. Calls to residence: Showing that call was made to number assigned by

telephone company, and self identification by person who was called. 2. Calls to business: Showing that call was made to number assigned by

telephone company, and call related to business reasonably transacted over telephone.

e. Photograph: Must be accurate portrayal of what it depicts. f. Self-authentication

1. Domestic public documents under seal 2. Certified foreign public documents 3. Certified copies of public records 4. Official publications of a public agency 5. Newspapers and periodicals 6. Trade inscriptions, i.e. label on a can of food 7. Notarized documents 8. Commercial paper

3. Character a. Character: General description of person’s disposition. b. Methods of proving character

1. Reputation in community 2. Opinion (personal) 3. Specific instances of conduct (acts)

c. Admissibility 1. Civil (when admissible, all three forms can be used):

a. Inadmissable to prove conduct in conformity therewith on a particular occasion. Example: Negligence action, can’t show reputation as careful person.

b. Admissible when character is essential element of claim, defense or COA: Defamation, child custody.

c. Admissible when knowledge of character of another is at issue: Self defense and negligent hiring/entrustment.

2. Criminal can use circumstantial character evidence when: a. Opening the door rule: Evidence of ’s good character by

reputation or opinion when relevant to prove innocence, and can rebut using contrary reputation or opinion evidence, including challenging ’s witness credibility by asking "did you know" re: specific ’s acts. If ’s witness doesn’t know about acts, witness doesn’t know very well; if witness does know, then she isn’t credible.

b. Bad character of victim: All three forms can be used by to prove, and can so rebut.

c. Rape: Reputation and opinion evidence inadmissible, but specific acts of victim’s sexual behavior admissible when:

i. Behavior with other persons which would explain signs of rape (i.e. other source of sperm).

ii. Past behavior w/ which tend to show consent. 35

d. Mimic rule: Circumstantial evidence can be offered by to rebut if specific trait to be proved is in issue.

i. Evidence of other crimes, wrongs or acts not admissible to prove character of person to show he acted in conformity. But admissible for other purposes such as proof of: Motive, Intent, absence of Mistake, Identity, Common plan or scheme.

ii. Never admissible to show criminal disposition or propensity to commit crime.

d. Habit and routine practice 1. Habit: Circumstantial evidence of person’s regular response to repeated

specific situation. 2. Evidence of habit of a person or routine practice of an organization,

whether corroborated or not, and regardless of presence of witnesses, is relevant to prove conduct in conformity with routine practice.

3. Opinion or specific conduct can be used to prove. e. Other crimes, acts, transactions, and events

4. Real, demonstrative and experimental evidence C. Best evidence rule

1. Applies to writings, recordings, photographs a. Where writing has independent legal significance (will, warranties in a K,

photograph in a pornography action) b. Where writing offered to prove an event (x-ray to prove injury, receipt to prove

payment) c. Where testimony is reliant on writing, not reliant on personal knowledge

2. Original is required 3. Exceptions:

a. Merely to prove that a writing existed b. Merely to prove that a statement was made c. Where contents of the writing are collateral to the matter being litigated

4. Duplicates and photocopies are admissible and treated as the original, unless genuine question of authenticity

5. Summaries of voluminous records a. Record so voluminous it can’t be brought into court can be introduced as a

summary, provided that both the original and summary are separately authenticated.

1. Original record can usually be self-authenticated or judicial notice 2. Summary authenticated by personal knowledge (person who drafted

summary). D. Privileges and other policy exclusions

1. Controlling law a. In diversity cases and cases arising under state law, privilege determined by state

law. b. In criminal cases, federal cases, and cases arising under federal law, privilege

determined by modern common law. 2. Elements

a. Relationship: Exists if client is seeking professional advice or consultation. No compensation need be paid, and professional need not take case.

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b. Communication: Communication is protected, but not the information. The information may come into evidence by other means.

c. Confidentiality 1. Nonessential (not furthering some purpose of the relationship) TP’s

destroy confidentiality. Known or reasonably anticipated evesdroppers destroy confidentiality, but unknown and unanticipated do not.

2. Communications made in public are never confidential. d. Holder

1. Only holder can assert or waive privilege. 2. Waiver can be complete or partial.

3. Spousal immunity and marital communications a. Marital communication privilege: Protects confidential communications made

during marriage, in both criminal and civil cases. 1. Divorce doesn’t destroy privilege. 2. Observations and impressions are also protected. 3. Both spouses are holders, so each spouse can prevent the other from

disclosure. 4. Exceptions

a. Crimes against other spouse or children b. Statements made in furtherance of future crime or fraud

b. Spousal privilege: Protects all communications, not just verbal, prior to and during marriage.

1. Only applies in criminal case. 2. Entire privilege is lost upon divorce. 3. In federal courts, witness spouse is the holder, not the party spouse. 4. Exceptions

a. Crimes against other spouse b. Crimes against children

4. Attorney-client and work product a. Attorney is one who is actually licensed or who client reasonably believes to be

licensed. b. Holder is the client, but attorney may assert privilege for client. c. Exceptions

1. Suits between attorney and client 2. Suits between joint clients 3. Disputes re: client’s will after client’s death 4. Communications made in furtherance of future crime or fraud

d. Work-product: Material prepared by attorney for her own use not protected by attorney-client privilege, but protected under work-product doctrine.

1. Preexisting documents handed over to attorney not privileged. 2. Basic facts re: client (name, address, etc.) not privileged.

e. Corporate clients 1. Federal courts: Protects statements made by even ordinary employees to

attorneys investigating relevant issues. 2. State courts: Privilege applies only to control group, consisting of people

having authority to decide corporate policy. 5. Physician/psychoterapist-patient

a. Includes psychoanalysis, psychologists, psychiatrists. 37

b. Protects verbal communications and observations (x-ray, visual). c. Exceptions

1. Physical or mental condition at issue 2. Criminal proceedings 3. Malpractice actions 4. Competency or commitment proceedings 5. Duty of professional to warn of immediate threat of harm by patient.

6. Priest-penitent a. Both priest and penitent are holders of the privilege.

7. Self incrimination 8. Insurance coverage

a. Evidence that person has or does not have liability insurance, and statements made in connection ("I ran the red light, but I have insurance"), is inadmissible to prove negligence. Exceptions:

1. To show agency 2. Ownership or control 3. Bias or prejudice

9. Remedial measures a. Subsequent remedial measures cannot be used to prove negligence or culpable

conduct (purpose is to encourage people to make repairs without fear of liability). Except:

1. To prove ownership or control 2. To show feasibility of precautions, if controverted. 3. For impeachment

10. Compromise, payment of medical expenses, and plea negotiations a. Offer to settle disputed claim and statements connected therewith ("I was at

fault. Let’s settle.") are inadmissible to prove liability for claim or amount (encourages settlement). Except:

1. Prove bias or prejudice of witness. 2. Contravert conention of undue delay by a party. 3. To prove that a party attempted to obstruct a criminal investigation.

b. Offer to pay medical bills is inadmissible to prove liability for injury. Statements made in connection ARE admissible.

c. Offers to plead guilty or nolo contendre, even if withdrawn, are inadmissible against maker of plea. Except:

1. Prosecution for perjury 2. Purposes of impeachment 3. Actual guilty plea not withdrawn can be used in a civil case 4. Entry of judgment following guilty plea is admissible under a hearsay

exception 11. Past sexual conduct

E. Hearsay and admissibility (focus) 1. Definition

a. What is hearsay 1. Out of court statement

a. Oral or written assertion; or b. Nonverbal conduct intended by a person as an assertion

2. Other than one made by declarant while testifying in court 38

3. Offered to prove the truth of the matter asserted. b. Prior statements by witness c. Statements attributable to party-opponent d. Multiple hearsay

1. Example: A testifying as to what B said about what C said. 2. Each layer must be separately admissible. 3.

2. Non-hearsay a. Prior inconsistent statements

1. Declarant must be available and subject to cross. 2. If statement was sworn testimony in a proceeding, admissible both

substantively and to impeach. Otherwise, only admissible to impeach. b. Prior consistent statements

1. Declarant must be available and subject to cross. 2. Nonhearsay where offered to rebut charge of recent fabrication (i.e. that

witness is biased or lying) or improper influence. c. Prior identifications

1. Declarant must be available and subject to cross. 2. Prior statement of identification made after person perceived him.

d. Admissions 1. Direct: Statement of a party, offered against him, by opposing party

("admission of party-opponent"). 2. Conduct or silence

a. Conduct: Evidence of party’s conduct which reasonably supports an inference inconsistent with party’s position.

b. Admissible silence: Evidence of circumstances such that a reasonable person would have denied the statement. Does not include post-arrest situation (Miranda).

3. Authorized a. Statement of person specifically authorized by party to speak.

4. Vicarious a. Statement of agent or employee made during existence of

relationship concerning matter within scope of employment. 5. Coconspirator

a. Statement of coconspirator made during the course and in furtherance of the conspiracy.

b. Conspirator is viewed as an agent of all the other conspirators. c. Conspiracy must be proved to exist.

e. Verbal acts 1. Statements whose relevance is independently significant of their truth.

a. Transactional words: Actual words of a K, will or deed. b. Tortious words: Actual words of libel or slander in a defamation

action. f. Nonassertive conduct

1. Behavior which actor does not intend to mean as communicative statement, but which may be interpreted as a communicative statement.

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2. Example: Person opens umbrella not to communicate that it is raining, but so that they don’t get wet. Pilot who brings his family onto the plane – not to show it’s safe. Compare with signaling directions.

g. State of mind 1. Independently relevant circumstantial evidence can be used to prove

knowledge, intent, attitude or belief of either declarant or listener. 3. Hearsay exceptions

a. Unavailability of declarant required b. Present sense impression

1. Statement describing or explaining event or condition made while declarant was perceiving event or condition, or immediately thereafter. No time for reflection or deliberation.

2. Declarant need not be available or even known. c. Excited utterances

1. Utterance relating to a startling event or condition, made while declarant was under the stress of the excitement caused by the event or condition.

a. No time for reflection and deliberation, i.e. statements made at police station following event.

2. Condition need only relate to the startling event. 3. Declarant need not be available or even known. 4. Res gesti: Always a wrong answer.

d. Statements of mental, emotional or physical conditions 1. Intent, pain, bodily health

a. "I’m going to Colorado" is a statement of intent. 2. Statement must relate to the present; not past, although past mental

state re: declarant’s will is admissible. e. Statements of past physical condition

1. Medical history or past/present symptoms of a person (not necessarily the person seeking treatment).

2. Made to any person for the purpose of medical diagnosis or treatment. f. Past recollection recorded

1. Where witness’ memory has failed to be refreshed, witness may read into evidence statements from a writing if:

a. Witness once had knowledge re: matter; b. Writing must have either been made by witness or adopted by her

at a time when it was fresh in her memory; and c. Writing has been properly authenticated to satisfy best evidence

rule. 2. Writing itself is not admitted into evidence – only read into evidence,

unless adverse party consents. g. Business records

1. Record or report of acts or events kept in ordinary course of regularly conducted business.

a. Circumstances must not indicate lack of trustworthyness (i.e. prepared in anticipation of litigation).

b. Record must have been prepared by either custodian or qualified person with knowledge (common law required custodian), and that person must have had a business duty to record.

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c. Record must have been prepared at or near the time of the event. 2. Absence of business entry can be used to prove nonoccurance of event or

nonexistence of record. Example: Absence of DMV record re: driver’s license.

h. Public records and reports 1. Types of records

a. Records of public office or agency activities b. Records of matters observed pursuant to a legal duty (does not

include PD reports of criminal activity – inherent lack of trustworthiness)

c. Factual findings of official investigations 2. Custodian of record must have official duty to record. 3. Court has discretion to exclude due to lack of trustworthiness. 4. Absence of public record is admissible.

i. Other records 1. Vital records 2. Religious organization records (baptism, etc.) 3. Marriage certificates 4. Family records, such as statements made in family bibles, engravings on

tombstones, genealogy charts, and inscriptions on family portraits. 5. Statements in ancient documents (>20 yo) if found in place where it

aught to be, and some form of authentication. Example: Map to show existence of a road.

6. Final judgments entered after trial or upon plea of guilty to felony. Used to prove truth of matter asserted, not of character.

j. Learned treatises 1. Statements contained in published treatises and periodicals admissible if:

a. Found to be authoritative (by expert testimony or judicial notice); and

b. Treatise called to expert witness on cross, or relied upon her on direct examination.

2. Statements in treatise are read into evidence. Treatise itself is not admitted unless offered by adverse party.

k. Catch-all (equivalency) exception 1. Evidence offered must be more probative than any other evidence on

point. 2. Court must find "circumstantial guarantees of trustworthiness"

equivalent to other hearsay exceptions. 3. Admission of statement must best serve interests of justice. 4. Advanced written notice must be given to opposing party.

l. Other 1. Types of declarations

a. Former testimony: Testimony given at earlier proceeding if party against whom testimony is offered, or pretecesor in interest:

i. Was a party in earlier proceeding; ii. Had opportunity to examine declarant; and

iii. Had a motive to examine similar to the reasons now given (i.e. party was in both former and present case). 41

b. Dying declaration i. Declaration made while under imminent belief of death

concerning cause or circumstances of purportedly imminent death.

ii. Can be used in criminal homicide case, or any civil case. c. Declaration against interest

i. Statement of nonparty which was against penal, pecuniary or proprietary interest when made.

ii. If statement against penal interest offered to exculpate accused, corroborating circumstances must be shown which clearly indicate trustworthiness of declaration.

iii. Versus admission a. Admission is a statement of a party, but declaration

is statement of nonparty b. Admission does not require nonavailability;

declaration against interest does. c. Admission need not be against interest when

made; declaration must be. d. Admission doesn’t require personal knowledge;

declaration does. e. Same statement can’t be both admission and

declaraction against interest. 2. Unavailability of declarant required

a. Assertion of privilege b. Refusal to testify c. Lack of memory d. Absence by death, illness or injury

e. Absence from court’s jurisdiction

V. Real Property A. Considerations

1. Nature and characteristics 2. Creation 3. Classification of interests

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4. Rights of possession and user 5. Legal and equitable remedies

B. Interests in property 1. Freehold estates (possession under title)

a. Fee simple absolute 1. Maximum of legal ownership 2. CL: "To grantee and his heirs." ML: "To grantee."

b. Defeasible fees simple 1. Fee simple determinable: Fee simple estate which continues until the

happening or nonhappening of a stated event, at which time estate automatically terminates and reverts back to grantor. Example: "X grants property to A so long as [until, while, during] property is used as a school."

2. Fee simple subject to condition subsequent: Fee simple estate which may be terminated upon the happening or nonhappening of a stated event, grantor may reenter the land. Example: "X grants property to A, but if [subject to the condition that] the property is not used as a farm, X may reenter."

3. Fee simple subject to executory interest: Fee simple whose ownership passes to another grantee upon the happening of a stated event. No reversion or right of reentry to original grantor. Example: "X grants property to A, as long as land is used as a farm, if not, then to B" or "X grants property to A, but if A dies without issue living at his death, then to B and his heirs."

c. Fee tail: Fee simple whose inheritance was limited to grantee’s lineal descendents. Example: "To B, and the heirs of his body" or "To B, and the male heirs of his body."

d. Life estates: Fee simple where a duration is measured by live of human being. Example: "X conveys property to A for life of A" or "X conveys property to A for the life of B" (per ultra vie – life of another).

1. Dower: Widow entitled to life estate in 1/3 of lands her husband owned in fee simple during the marriage.

2. Cutsey: Widower entitled to life estate in lands owned by wife during marriage. Marriage must have been legal, wife must have owned land in fee simple or fee tail, and wife must have had issue born alive by the husband, wife must predecease husband.

3. Rule in Shelly’s Case: If freehold estate is given to a person for life, and in the same conveyance a remainder is limited to heirs of that person, then grantee takes in fee simple.

4. Doctrine of worthier title: A to B with remainder to A’s heirs. Remainder is cut off, and reversion in fee back to A after B’s life estate expires. Title by descent is worthier than title by devise.

2. Future interests a. Reversions: Estate remaining in the grantor who has conveyed a lesser estate

than that owned by the grantor. Example: "X conveys property to A for life of A." Reversion consists of X’s estate minus A’s estate. Can be created by a fee tail, life estate, or contingent remainder which does not vest.

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b. Possibilities of reverter: Interest retained by grantor of a fee simple determinable. Example: "X conveys property to A as long as the land is farmed."

c. Power of termination / Right of reentry: Created when grantor grants property subject to condition subsequent, when grantor has the option of reentry.

d. Remainders: Future interest created in TP which is intended to take effect after natural termination of preceeding estate. Example: "X conveys property to A for life with remainder to C and his heirs."

1. Requirements a. Must be in favor of a transferee (C) who is different from grantor

(X) b. Must be created at same time and in same instrument as the

creation of the estate which preceeds it (grant to A) c. Preceeding estate must be of less duration than interest of

conveyor (X). d. Preceeding estate must be either fee tail, life estate or estate for

years, but not fee simple (that would be an executory interest). 2. Characteristics of remainders

a. Alienable or transferable b. Contingent remainders not subject to claims of creditors, but

vested remainder is. c. Takes effect only after natural termination of prior estate. d. Contingent remainders falls within rule against perpetuities, but

vested does not. e. Vested remainderman has right against prior estate holder for

waste, and to require prior estate holder to pay taxes and interest on encumbrances. Contingent remainderman does not.

3. Vested: Created in ascertained and existing person (C) that is not subject to any condition precedent except natural termination of preceeding estate. Example: "X to A and the heirs of his body, remainder to C and his heirs" or "To B for life, then to C for life."

a. Absolutely vested: Limited to ascertainable or identifiable person without words of condition, and not subject to divestment. Ex: "X to A for life then to B".

b. Vested subject to partial divestment (or open): Remainderman is in existence and ascertained, but amount of estate could be dimished in favor of other members of class. Ex: "A to B for life, then to children of B in fee."

c. Vested subject to complete divestment: Remainderman is in existence and ascertained, and interest not subject to condition precedent, but right to possession or enjoyment is subject to termination by executory interest, power of appointment, or right of entry. Ex: "X to A for life then to B and heirs, but if B dies without heirs, then to C."

4. Contingent: Remainder created in favor of ascertained person but subject to condition precedent, or is created in favor of unascertained (unborn) person. Ex: "X to A for life, remainder to B and his heirs, if B marries before A’s death" or "X to A for life, remainder to B for life if B survives X."

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e. Executory interests: Cuts short a prior estate. Future contingent interest created in favor of transferee in the form of springing or shifting use, which on the happening of the described contingency will be executed into a legal estate which cannot be described as a remainder.

1. Characteristics a. Transferee must be different from grantor: Different from

possibility of reverter or right of reentry, which allows grantor to regain estate.

b. Always contingent – never vested. c. Cuts short prior estate upon happening or nonhappening of

stated event or contingency – not after natural termination of preceeding estate.

d. CAN follow a fee simple. 2. Shifting: Cuts short prior estate in favor of another grantee. Ex: "X grants

to A for life, but if A goes bankrupt, then to B and his heirs". B will only get if A goes bankrupt, otherwise it reverts to X when A dies.

3. Springing: Upon contingency, estate passes back to grantor then to grantee #2. Ex: "X to A and his heirs, but if A goes bankrupt, then one year later to B and his heirs." During the one year lapse, estate reverts to X, then to B.

4. Devise: Created by will, as opposed to grant or deed. f. RAP: No contingent interest exists unless it must vest or fail, if at all, no later

than 21 years after some identifiable life in being at the time the interest is created.

1. Options to purchase land in the future: May violate if option is to "X or his heirs", because the heirs haven’t yet been determined until he dies, which may not occur w/in 21 years.

2. Class gift vests only when class closes and all conditions precedent for every member of the class have been satisfied. Entire class gift void if any member violates RAP. Class closes when parent of class dies, or when any member of class can demand possession.

3. Power of appointment: Considered equivelant of ownership of property, and RAP is not a factor.

g. Restraints on alienation: Restrict grantee’s power to convey property to others. Invalid if imposed on fee simple. Restraints on lesser estates are generally valid.

1. Restraint re: time can only limit grantee for limited amount of time 2. Restraint re: persons invalid, i.e. minorities. 3. Preemptive right or right of first refusal are upheld. 4. Types

a. Disabling b. Forfiture c. Promissory

3. Concurrent estates: Ownership/possession by 2+ persons at same time. a. Joint tenancy: Each tenant owns an undivided interest in whole estate.

1. Right of survivorship: Upon death of one tenant, title passes to surviving J/T.

2. Requirements of unity: a. Unity of time: Interest must vest at same time.

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b. Unity of title: Interest acquired by same instrument. c. Unity of interest: Interest of same type and duration. d. Unity of possession: Each J/T given identical rights of enjoyment.

3. Created by deed or will, never descent. 4. Disfavored at law, therefore express creation required. Otherwise,

tenancy in common is created. 5. Conveyance of interest or K to convey severs J/T and creates tenancy in

common. 6. Suit for partition severs J/T . 7. Mortgages: Severs if transfer of title (minority), but not in lien theory

jurisdiction. b. Tenancy by the entirety: Ownership by both H and W, with right of survivorship.

Unity required: 1. Unity of time, title, interest, possession, person. 2. Severance by death of either spouse, divorce (converts to tenants in

common), or conveyance by both parties. 3. No right to partition.

c. Tenancy in common: Co-tenants own undivided, separate, distinct share of property.

1. Each tenant can convey his interest. 2. No right of survivorship. 3. Destroyed by partition or merger. 4. When one co-tenant wrongfully ousts other tenant from possession,

ousted tenant has COA against ouster. 5. Each T has right to possess and enjoy whole property. 6. Tenant in possession can retain profits gained from use of property, and

need not share with other tenant, unless outster. 7. Taxes: Right of contribution, enforceable by lien. 8. No right of contribution for repairs or improvements, unless partition.

4. Leasehold/Nonfreehold estates (possession) a. Conveyance

1. SOF applies, and writing must contain the following elements: Identity of lessor and lessee; describe land; state term of lease; set forth amount of rent.

2. Tenancy for years a. Fixed duration specified in lease.

3. Periodic tenancies a. Tenancy is automatically renewed at expiration of previous

tenancy (i.e. month-to-month). b. Proper notice required to terminate (i.e. 30 days).

4. Tenancies at will a. Terminable at will of either party, without advance notice. b. Continues until terminated.

5. Tenancies at sufferance a. T remains in possession (holdover) after expiration of tenancy. b. T liable for rent for possession.

6. Assignment & subleases

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a. Absent express K prohibition, T can freely transfer her leasehold interest in whole (assignment) or in part (sublease).

b. Assignment: T still has privity of K with LL and T is still liable for rent payments. Assignee also has privity of K, unless he reassigns.

c. Sublease: T always has privity with LL, and subleasor has no legal relationship with LL. Original T always liable to LL, and sublessee not liable to LL for rent.

b. Duties 1. T’s duty to pay rent

a. Consideration paid for use and enjoyment of the land. b. Not pro-rated: LL cannot collect for partial term. c. Not extinguished upon destruction of premesis. d. Extinguished upon

i. LL release ii. Merger: T purchases property

iii. Expiration of lease iv. Eminent domain: If complete taking v. Constructive eviction: Material breach by LL which violates

T’s implied covenant of quiet enjoyment and T quits possession

vi. Frustration of purpose: Illegality. vii. Surrender

2. T’s duty to repair: Affirmative duty to make ordinary repairs. 3. T’s duty not to commit waste

a. Voluntary: Caused by affirmative act of T. b. Ameliorating: Change in physical characteristics of premises by

unauthorized act of T but which increases value of premises. T ordinarily not liable.

c. Permissive: Injury to premises by T’s failure to act when duty exists, such as failure to make ordinary repairs.

d. Equitable: Injury to reversionary interest in land, but which is not considered legal waste. Only remedy is injunction. Usually occurs when "without impeachment of waste" clause appears in K.

4. T’s duty of care (tort liability) a. No duty to tresspassor unless anticipated or discovered, in which

case duty to warn of known dangerous conditions which trespassor would not discovery himself.

b. Licensee: Duty to warn of known dangerous conditions. c. Invitee: Duty to inspect and make safe.

5. LL duty to deliver possession of premesis a. American rule: No duty to deliver. T does not acquire legal

interest until actual possession taken. T can only take action against trespassor, not LL.

b. English/Common Law: LL impliedly warrants that T will have legal right to possession at beginning of leasehold term.

6. LL duty to warn of dangerous conditions (fitness of premises) a. LL not liable for dangerous conditions on premesis (caviet emptor

revails), except LL is liable for known (or should have known) 47

hidden defects which T would not reasonably discover and which injures T or guests.

b. LL is liable for dangerous conditions if premises is furnished. 7. LL duty to repair: None, unless he undertakes repairs and is negligent.

c. Fixtures 1. For a chattel to become a fixture:

a. Must be intention of chattel owner for chattel to become a fixture i. Nature of article

ii. Manner of attachment to land iii. Injury to land iv. Completeness of integration with use of land. v. Relation of chattel owner to land.

b. Chattel must be attached, actually or constructively, to realty c. Chattel must be appropriated for purpose for which land is used.

2. Trade fixtures: Chattels annexed to land for pecuniary gain during tenancy; removable by T.

d. Contract 1. Eviction: Occurs where LL or paramount title holder excludes T from

possession. 2. Covenant of quiet enjoyment

a. Breached by eviction and relieves T’s duty to pay rent. e. Surrender, mitigation of damages, and anticipatory breach

5. Nonpossessory interests a. Profit: Right of one person to go onto the land of another and extract something

from that land. b. Easements: Right of one person to go onto the land of another and make limited

use (but not removal) of that land. 1. Types

a. Appurtenant: Two parcels, one dominant, one ajoining servient. Dominant owner can come onto servient land to make use of it. The easement runs with the servient land – enforceable by and against successors in interest to the original parties.

b. In Gross: Only have a servient tenanent subject to easement. Example: City has a sewer line going through your property, or telephone polls in front yard. May run with the land.

2. Categories a. Affirmative: Allows owner to make affirmative use of subservient

tenement – i.e. right to ingress and egress. b. Negative: Prevents servient tenament owner from doing some act

or making some use of her land. 3. Creation

a. It’s an interest in land, so must comply with SOF, except: Implied and prescriptive easements.

i. Implied/Necessity: Landlocked property where only way to get to road is over another’s land. Landlocked property owner has easement by implication over other property to road. Available where either reasonably necessary or strictly necessary. 48

a. Grant: Grantor subdivides land and makes grant of landlocked land to grantee, grantee only has to show easement is reasonably necessary.

b. Reservation: Grantor reserves easement for himself when he sells dominant lot. Must be strictly necessary.

ii. Prescription a. Adverse use (not with permission) b. Open use c. Notorious d. Continuous e. For statutory period

4. Extinguished a. Merger: Dominant and servient tenements come into the hands

of the same person. b. Written release c. Abandonment d. Prescription: Servient tenement owner has used her land in a way

that is inconsistent with and adverse to easement for prescribed period, without consent of easement holder (dominant tenement).

e. Destruction of servient tenament f. Estoppel: Subservient tenant, in reasonable reliance on conduct

dominant tenant, uses servient tenement in a way that is inconsistent with easement.

g. Condemnation/Eminent domain: Dominant tenement owner is entitled to compensation.

h. Non use, coupled with intent to abandon 5. Excessive use requires injunction to stop misuse.

c. Licenses: Permits a person to come onto the land of another without being viewed as a tresspassor. Not an interest in land: Much less significant than an easement. Generally revocable at discretion of licensor, but not if coupled with an interest (i.e. ownership interest in goods located on the land). Example: Free parking at shopping center.

d. Covenants running with land: K which may be enforced by successors in interest.

1. Writing in compliance with SOF 2. Intent of both parties for K to run with land: "Assigns or successors" term

must be used in K. 3. K must touch and concern the land – either makes it more or less

valuable, or increase or decrease use or utility of land. 4. Privity of estate between parties: One of the parties succeeds to the

interest in the land of the other party (grantor/grantee). e. Equitable servitudes: Restriction on the use of land that is enforceable in equity.

1. Writing 2. Intention

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3. Notice: Grantee must take the land with knowledge (actual, record or inquiry notice) of equitable servitude. Inquiry: Common development scheme, buyer should be aware.

4. Imposition by: a. Declaration of restriction filed with recorder; b. Where all lot owners agree and execute a restriction; or c. Where subdivider creates common development scheme. d. Any lot owner within scheme can enforce.

5. Similar to covenant running with land, but privity of estate not required. Equitable servitude only enforceable in equity – covenant is enforceable at law.

6. Extinguish in same way as covenant running with land, easements or profits, plus by substantial change in character of neighborhood (but not zoning changes).

f. Other interests in land 1. Fixtures (including UCC A9) 2. Scope and extent of real property

a. Superajacent, adjacent, and subjacent space b. Rights in the common resources of light, air, streams, and bodies

of water c. Nuisance

g. Taking and aspects of zoning C. Rights incident to possession

1. Adverse possession a. Requirements

1. Adverse use: Without permission a. Honest mistake of ownership is not a problem.

2. Actual and exclusive physical occupancy 3. Open and notorious 4. Continuous and without interruption for the statutory period

a. Begins to run when cause of action accrues against adverse possessor.

i. Period during which landowner can bring action against adverse possessor is tolled during landowner’s disability or age of minority.

b. Tacking between adverse possessors is ok if privity between them: Descent, deed, will, written K, oral K, oral gift, or mere possession.

b. Limitations of claims 1. Cannot acquire larger estate than he claims. 2. Cannot claim title to less than a freehold estate

2. Lateral and subjacent support a. Landowner has absolute right to have her land supported. b. One who withdraws support from neighbor’s land in its natural state creates

absolute liability regardless of negligence. c. Damage to artificial structures: English rule includes recovery for structural

damage, but American rule limits recovery to damage to land in its natural condition. But if negligent excavation, then all damage is recoverable.

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d. Excavation on one’s land which releases semi-fluid material from neighbor’s land which causes neighbor’s land to sink, there is liability.

3. Water rights a. Surface lakes and streams

1. Riparian water rights: All tracks of land touching the water is riparian. a. Natural flow theory: Each proprieter of land has a fundamental

right to have the stream or lake remain substantially in its natural state, free from any unreasonable diminishment in quantity or polution. Each riparian can use for natural or artificial uses so long as used on riparian land, and does so sensibly as not to affect quantity or quality of water.

b. Reasonable use theory: Each riparian owner has right to make maximum use of the water, on or off of riparian lands, but can’t unreasonably interfere with like use by other riparians.

2. Water uses a. Natural uses: Daily personal sustenance. Takes precedence over

artificial uses, but prior use of water for artificial uses is protected. b. Artificial uses: Irrigation, industrial uses.

b. Underground and percolating waters 1. Common law: Water is controlled by surface owner. If withdrawal affects

neighbor, no liability. 2. US law: Surface owner can withdraw underground water but must make

reasonable use of the water. Unreasonable use resulting in damage to neighbor results in liability.

c. Surface waters 1. Landowner has unlimited discretion in dealing with surface waters,

regardless of effect on others. 4. Surface rights

a. Includes vegetation and growing crops. b. Frutes naturals: Trees, grasses, shrubs. Considered real property and part of the

land, until severed. Passes with conveyance of land. If straddeling property line, then owned as tenants in common.

c. Frutes industrials: Crops. Treated as personal property of land’s tenant. At the close of the tenancy, any crops not severed belong to LL. Crops which are severed but not removed still belong to tenant. But tenancy at will can remove crops within reasonable time after tenancy terminated.

D. Real Property Contract 1. Relationships included

a. Contracts to buy and sell by conveyance of realty b. Installment contract

2. Creation and construction a. Statute of frauds

1. SOF exception (oral K ok) where doctrine of substantial part performance applies:

a. Buyer pays part or all of purchase price and buyer takes possession, or makes substantial improvements.

b. Essential terms 1. Identify parties

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2. Sufficient description of land to be conveyed a. Sufficient lead as to identity of property to be conveyed b. Parole evidence is admissible to clear up patent (on face of deed)

ambiguity. 3. Purchase price 4. Promises on both sides (grantor promises to convey, grantee promises to

pay price) 5. Signed by party to be charged (grantor)

c. Implied conditions or terms 1. Time for performance 2. Title required 3. Burdens related to title defects

3. Performance a. Fitness and suitability of premises b. Marketable title

1. Implied covenant that seller has good and marketable title on date of deed delivery.

2. Buyer can rescind K if seller does not have good and marketable title on date of deed delivery.

3. Deed supersedes K, so if buyer accepts good without warranties of title, he’s SOL.

4. Defects a. Outstanding mortgages b. Covenants c. Reverter rights d. Unremovable encumbrance e. Easement upon appreciable part of property f. Variations in names of grantors or grantees g. Outstanding dower interest

c. Risk of loss 4. Interests before conveyance

a. Equitable conversion 1. In period between execution of K and closing, where enforceable interest

in land exists: 2. Seller deemed to be equitable owner of balance of purchase price, and

buyer is equitable owner of property. 3. Legal title remains in seller. 4. Risk of loss on buyer, so he takes out insurance to protect expectancy

interest. 5. Seller’s death does not negate K. Buyer’s death means that estate pays

purchase price and title goes to buyer’s heirs. b. Earnest-money deposits

5. Relationships after conveyance a. Condition of premises b. Title problems

E. Titles (focus) 1. Conveyancing by deed

a. Types 52

1. General warranty a. Includes first five covenants (season, convey, encumbrances,

quiet enjoyment, general warranty) 2. Special warranty

a. Includes fewer warranties than general warranty deed 3. Quitclaim

a. Includes no warranties – grantee takes whatever grantor has. b. Necessity for a grantee c. Delivery (including escrows)

1. Grantor’s intent to deliver, shown by words or conduct (parole evidence ok).

2. If deed is in possession of grantee, presumption that deed has been validly delivered.

3. If deed is in possession of grantor, presumption that there has not been a valid delivery.

4. If deed has been recorded, presumption that there has been valid delivery.

5. If deed has been delivered to TP with conditions (A gives deed to TP to give to B if condition met), and condition has been met, then valid delivery even if physical delivery not yet performed. If grantee wrongfully receives deed (conditions not met), title has not transferred.

d. Land description and boundaries 1. Oral agreement between landowners to settle boundary line dispute is

enforceable, notwithstanding SOF. e. Covenants for title

1. Breached, if at all, when deed is delivered (do not run with land): a. Covenants for season: Guarantees that grantor owns estate. b. Covenant for right to convey: Guarantees that grantor owns

estate. c. Covenant against encumbrances: Property not subject to any

outstanding encumbrances, mortgages, liens or restrictions on the property which would affect value.

2. Breached, if at all, after deed is delivered (run with land, and can be enforced by remote grantees); requires showing of damages:

a. Covenant for quiet enjoyment: Promise to defend grantee against all lawful claims of grantor or TP’s who would evict grantee.

b. Covenant of general warranty: Promise to defend grantee against all lawful claims of grantor or TP’s who would evict grantee.

c. Covenant of further assurances: Grantor will do some further necessary act to perfect grantee’s title. Not used much in the U.S.

2. Conveyancing by will a. Ademption b. Exoneration c. Lapse

3. Priorities and recording a. Types of priority

1. Recording acts a. Race: Whoever records first prevails.

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b. Notice: Subsequent BFP without notice prevails regardless of recording.

c. Race/notice: Subsequent BFP without notice who records first prevails.

2. Judgment liens 3. Fraudulent conveyances 4. Protection of bona fide purchasers other than under statutes

b. Scope of coverage 1. Recorded documents 2. Elements required 3. Parties protected 4. Interests affected

c. Special problems 1. After aquired title (including estoppel by deed): If a person executes a

deed purporting to convey an estate which he does not own, and grantor later acquires that title, then estate passes to grantee. Subsequent BFP prevails over grantee if grantee failed to record deed.

2. Constructive notice 3. Forged instruments 4. Transfers by corporations and by agents 5. Purchase money mortgages

F. Real property mortgages 1. Types of security devices

a. Mortgages (including deeds of trust): Security interest for performance (payment) of debt.

1. Instruments: Note is evidence of debt, mortgage is security for the debt. Mortgage must be recorded to be effective against BFP’s.

2. Parties: Mortgagor is the person taking out the mortgage. Mortgagee is the bank.

b. Land contracts as security device c. Absolute deeds as security

2. Some security relationships a. Necessity and nature of obligation b. Theories: Title, lien, and intermediate c. Rights and duties prior to foreclosure d. Right to redeem and clogging equity of redemption

1. Upon default, but before foreclosure, mortgagor can pay off mortgage debt and reacquire title.

2. After default, mortgagor has a certain amount of time to repay bank mortgage endebtedness, even if there has been a foreclosure sale, in which case mortgagor can receive bank’s profits from proceeds of sale of land (difference between sale price and mortgage amount).

3. Transfers by mortgagor a. Distinguishing "subject to" and "assuming"

1. If buyer assumes mortgage, then buyer is personally liable to bank for mortgage (in personam).

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2. If deed makes no mention of mortgage or says land is "subject to" mortgage, buyer is not personally liable to bank (in personam), but bank can still foreclose on the property (in rem).

b. Rights and obligations of transferror c. Application of subrogation and suretyship principles d. Due-on-sale clauses

4. Transfers by mortgagee (including effect of UCC A3) 5. Discharge and defenses 6. Foreclosure

a. Types b. Rights of omitted parties c. Deficiency and surplus d. Redemption after foreclosure e. Deed in lieu of foreclosure

G. Misc 1. Ownership interests in trusts (including charitable trusts)

a. Settlors b. Trustees c. Beneficiaries

2. Special problems a. Rule Against Perpetutities b. Alienability, descendability, devisability

VI. Constitutional Law A. Tip: Boil down to a list of government powers to determine best way to uphold a challenged

statute. B. Judiciary

1. Organization and relationship of state and federal courts in federal system a. A3 vests judicial authority in the (one) Supreme Court, and inferior courts as

Congress may establish. 1. Lifetime tenure and salary protection 2. Cases reviewable by higher courts.

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3. Lower federal courts can hear most types of cases that the supreme court can hear, with the exception of any case between two or more states, which the supreme court has original and exclusive jurisdiction over.

b. A1 courts consists of administrative, legislative, military, D.C. and bankruptcy courts.

1. No lifetime tenure 2. Jurisdiction

a. Constitutional basis of jurisdiction of Supreme Court 1. Original

a. Case involving an ambassador, public minister, or consul b. Any case where state is a party c. Congress cannot enlarge nor restrict

2. Appellate a. Congress can enlarge or restrict, but federalism prevents congress

from precluding review of an entire class of cases (i.e. exclude all school prayer cases).

b. Congress has plenary power to define and limit jurisdiction of lower federal courts.

3. Types of cases heard a. Appeal by right

1. Very few cases fall into this category: 2. Decision of three-judge federal district court. Usually an action seeking

injunction where quick decision is required. b. Certiorary

1. Discretionary: Requires 4 justices to accept case 2. State court decisions 3. Decisions from lower federal courts (U.S. Courts of Appeal)

4. Judicial review a. Adequate state grounds

1. Applies only to U.S. Supreme Court 2. Requires final judgment from state’s highest court that the case may

reach. 3. Where state court decision establishes both adequate and independent

substantive or procedural state ground upon which case was decided, Supreme Court will not hear the case, even though state court may have erroneously decided federal constitutional issue.

b. Case or controversy requirement 1. Actual and definite dispute between parties having adverse legal

interests. a. "Proposed" bill does not create actual case or controversy. b. Federal courts don’t give advisory opinions, but state courts can.

2. Standing a. has personal stake in outcome: Injury in fact arising from

conduct being complained of. b. Redressability: Relief sought must eliminate harm alledged. Injury

must be fairly traceable to ’s conduct. c. Third-party standing generally not allowed, except when close

relationship between and TP, and special need to adjudicate 56

exists (i.e. where TP can’t adequately protect their own interest). Examples: Doctor raises issue of abortion for patient, or school for students, or labor union for members.

d. Abstract or generalized grievance (citizen standing) is usually denied.

i. State taxpayer has standing to challenge measurable expenditures. Example: Challenge to state bussing. No standing if other than financial. Example: Bible reading in schools.

ii. Federal taxpayer has no standing because interest is too remote. Exception for establishment clause challenge to expenditure under tax & spend power.

3. Ripeness a. Genuine, immediate threat of harm. b. Court’s reason is that future events will sharpen and define the

COA. argues that he will suffer serious hardship by denying review.

4. Mootness a. Actual controversy must exist at all stages of review. b. Exception where injury is capable of repetition, yet evading

review. Example: Abortion, where is no longer pregnant when case is heard.

c. Political questions 1. Non-justiciable issue committed to another branch of government. 2. Factors

a. Subject matter b. Respect to other branches of government c. Lack of standards which are judicially manageable

3. Guarantee clause: Every state guaranteed republican form of government. Legislative apportionment can be reviewed, and court can compel state to re-apportion districts.

4. Amendment ratification process: Court cannot determine duration of time for state to ratify amendment. That is congress’ job.

5. Congress and president has exclusive control over the military organization, arming or discipline.

6. Court cannot determine age, residency and citizenship requirements for its members.

7. Foreign affairs is reserved for congress and president. d. 11th Amendment

1. State cannot be sued in federal court by its own citizens, citizens of foreign state, or citizens of foreign country, without consent.

2. Does not bar suits against local government. 3. State officials can still be sued for federal law violations – just not the

government itself. 4. When civil rights are involved, courts can strip states of 11th amendment

immunity. e. Abstention doctrine

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1. Pullman: Federal court will generally abstain where unsettled issue of state law exists, because state court decision on issue may preclude need for federal review. Federal court retains jurisdiction pending state decision.

2. Younger: Federal court will abstain from pending state criminal proceedings. Prevents from going to federal court to receive civil injunctive relief from state criminal proceedings. Forces from going through state criminal proceeding. Also applies to criminally related civil proceedings (welfare fraud) and civil contempt proceedings.

C. Separation of powers 1. Doctrine of enumerated powers

a. Federal government has only that authority that the Constitution gives it. All other powers retained by states through 10th Amendment, which is where state finds its police powers (health, safety, welfare, morals or aesthetics).

2. Powers of Congress (A1§8) a. Commerce

1. Regulation of foreign and domestic commerce. 2. Regulation of any person or thing traveling across state lines. 3. Affectation doctrine: Any activity, which in the aggregate has a

substantial economic effect (Lopez school gun case) on the stream of economic commerce may be regulated under the commerce clause.

4. Cumulative impact doctrine: Even an entirely intra-state activity can have a cumulative impact on interstate commerce.

5. Congress can regulate for clearly non-commercial reasons, such as social welfare, health, civil rights in conjunction with enabling clauses of 13th, 14th and 15th amendments (i.e. Heart of Atlanta Motel).

6. 10th Amendment: Weak limitation on commerce power, and usually a wrong answer. Inherent governmental powers, state sovereignty, and reserved powers are all tied to 10th amendment, and wrong answers. Generally applicable law (i.e. minimum wage) cannot be defeated by 10th. But Congress cannot require states to enact and enforce a particular federal program (but can put strings on receipt of federal funds).

b. Taxing 1. Tax is valid if the dominant intent is fiscal revenue raising.

c. Spending 1. Congress can attach strings to money, but the strings must be

reasonable. Even if the strings wouldn’t be proper legislation. d. Power over federal property (A4§3): Congress has the power to dispose of and

make all rules and regulations regarding the territory or other property of the US.

1. Wild animals on federal land 2. Federal buildings 3. Military ships and airplanes 4. Indian reservations

e. War and defense 1. Declare war 2. Regulate militia 3. Raise and support troops

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f. Necessary & Proper clause: Congress can use any reasonable means necessary and proper to execute enumerated powers.

g. Enforcement of 13th, 14th and 15th Amendments 3. Powers of President

a. Chief executive 1. President must faithfully execute the laws. 2. Appointment & removal: Can appoint purely executive officers,

ambassadors, supreme court justices, etc. with senate consent. Can appoint to agencies and commissions with executive powers without senate consent. Congress cannot appoint inferior officers, but can delegate such appointment to judiciary or executive. President can remove any purely executive official, but not federal judges or fixed-term executive official without good cause.

3. Veto legislation within 10 days, subject to override by 2/3rds vote. 4. Pardon power: Extends only to offenses against the U.S. (federal crimes,

not state crimes). 5. Executive privilege: Refusal to disclose information. Absolute as to

military and diplomatic secrets; otherwise merely a qualified privilege. Absolute immunity from civil suits for actions taken in office (but Clinton may have changed this).

b. Commander-in-chief 1. Deploy military troops even before outbreak of war. 2. Broad emergency powers

c. Treaty and foreign affairs 1. Shared with congress (not plenary) 2. Sources

a. Commander in chief b. Treaty power: Consent of 2/3rds of senate; regarded as supreme

law of the land. If conflicts with act of congress, last in time prevails. Versus executive order, which applies to executive agencies, and isn’t subject to review.

c. Congressional authorization: Delegation of commerce power to president.

4. Federal interbranch relationships a. Congressional limits on the excutive b. Presentment requirement and president’s power to veto or withhold action c. Delegation doctrine

1. Congress can delegate legislative power to another branch, but it cannot subsequently retract that power via legislative veto.

d. Executive, legislative and judicial immunities D. Federalism: Relations of nation and states in federal system

1. Intergovernmental immunities a. Federal immunity from state law: Federal government is immune from state

taxation and regulation. But states may tax federal contractors, as long as the federal government isn’t being taxed.

b. State immunity from federal law: States generally not immune from federal regulation. 10th and 11th Amendments do not apply. Federal government can tax

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proprietary state businesses (state businesses which could be created just as easily by private businesses).

2. Dormant commerce clause / Authority reserved to the states a. Negative implications of commerce clause: If federal government doesn’t

regulate it, then states can, so long as: 1. It doesn’t discriminate against interstate commerce in favor of local

interests. If the law is intended to further a legitimate purpose, but produces discriminatory impact, the law must be achieved by the least burdensome means available.

2. Doesn’t unduly burden interstate commerce. Uses balancing test. Usually ok if in the areas of roads & highways, health & safety, prevention of fraud, and conservation of natural resources.

b. Privileges & immunities clause: Prohibits discrimination by one state of citizens of another state in the areas of basic economic rights or liberties. Example: Different fees for services based on state residency. Applies only to people – not businesses or companies (which would be covered by discrimination against interstate commerce)

c. Tenth Amendment d. Other

3. State taxation a. Must be reasonable and nondiscriminatory. b. Must have substantial nexus between state interest and activity being taxed. c. Goods in the stream of interstate commerce may not be taxed. d. Instrumentalities involved in interstate commerce (planes, trains, boats) can be

taxed so long as it is fairly apportioned as to the extent of taxpayer use in the state. Example: Airline can be taxed based on number of days plane is in the state’s airports.

e. Direct taxes must be apportioned. Indirect taxes must be geographically uniform. 4. Supremacy clause

a. Preemption: If the federal government intends to occupy the area, any conflicting state laws are invalid.

b. Supercession doctrine: Federal law supercedes state laws in direct conflict. But in the area of health and safety regulations, state can enact standards which are more strict than federal.

5. National power to override or extend state authority a. Preemption b. Authorization of otherwise invalid state action

6. Relations among states a. Interstate compacts b. Full faith and credit

E. Individual rights (majority of the focus in this section) 1. Fourteenth Amendment

a. State action requirement 1. State action: Threshhold requirement of government conduct which must

be satisfied before private discrimination can be restricted. Without state action, private discrimination is not actionable under the 14th.

a. Public function: Private entity performing a purely state function (exercising powers traditionally reserved to the state). Example:

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Company town. But not privately owned utility company nor nursing homes.

b. Significant state involvement: i. Agency of the state (i.e. public school)

ii. Symbiotic relationship: Government is intertwined with private business

iii. Private business using state supplies (private school using government supplied textbooks).

iv. Government encouragement or facilitation of private discrimination.

v. But licensing alone is not enough. b. Due process

1. Substantive a. Economic regulation valid if rationally related to legitimate

government interest. b. Fundamental rights: Strict scrutiny.

i. Privacy: Not mentioned in Constitution, but found in penumbra. Applies only to CAMPER areas:

a. Contraception: Use and purchase, both married and unmarried.

b. Abortion i. States can regulate so long as they do not

create undue burden on ability to get abortion.

ii. Requiring consent of one parent, guardian, or a judge (judicial bypass), is constitutional (must have all 3).

iii. Spousal notification requirement is unconstitutional.

iv. No right to public funding. c. Marriage

i. State cannot forbid interracial marriage d. Procreation: Also affected by limits on

contraception. e. Education

i. No fundamental right to public school education, but complete deprivation is probably illegal.

ii. This affects right of parents to privately educate their children – which is a fundamental right.

f. Relations i. Right of related persons to live together.

ii. Does not extend protect homosexual sodomy.

iii. Also covers right to custody of one’s natural children, which requires notice and hearing prior to transfer of custody.

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ii. Travel: Right to move freely from state to state. a. Durational residency requirements are

unconstitutional for receipt of medical services, welfare benefits, and library services. OK for reduced tuition at state universities, obtaining a divorce, and voting in state elections (50 days).

b. Foreign travel is governed by rational basis test. iii. Vote: 1 person, 1 vote

a. Restrictions on right to vote, such as land ownership, are unconstitutional.

b. Exception: Special limited purpose districts can go outside the 1 person, 1 vote rule. Example: Water storage district – voting can be limited to only landowners, and can be in proportion to amount of land owned.

c. Reapportionment: Boundaries cannot be defined to deny numerical equality among voters (i.e. reduce power of an ethnic group or segregate school district).

d. Jerrymandering is unconstitutional: Apportionment scheme deliberately distorting political districts for partisan political purposes.

e. Ballot access can be restricted by requiring petitioner to have reasonable number of signatures, or reasonable filing fee, minimum residency and age for candidates.

2. Procedural a. Notice and hearing available whenever there is a serious

deprivation of life, liberty or property interest (right or privilege). i. Liberty interest exists:

a. Right to K b. Right to engage in gainful employment c. Right of natural parents in care and custody of their

children d. Right to refuse unwanted medical procedures

ii. Property interest exists: a. Welfare benefits (pre-termination hearing) b. Disability benefits (post-termination hearing) c. Public elementary and secondary education d. Garnishment of wages e. Continued public employment, where cause is

required. b. Balance severity of harm if procedures are not granted against

government interest in administrative efficiency (cost). 3. Takings (5th and 14th): Private property taken for public use by

confiscation, physical occupation, regulation denying owner all reasonable economically viable use of land.

a. Eminent domain: Just compensation must be paid. 62

b. Inverse condemnation: Just compensation must be paid. c. Police power: No compensation paid. Areas: Land use, zoning,

environmental protection legislation, landmark preservation. c. Equal protection: Used where law affects some persons, but not all. If it affects

all, use substantive due process. Applies to federal gvmt via 14th, and states through 5th.

1. Strict scrutiny a. Applies to

i. Protected 1st amendment rights ii. Suspect classifications (RAN)

a. Race i. Purposeful, intentional discrimination must

be shown. Impact alone is insufficient. ii. De jure segregation is unconstitutional.

iii. Bussing: Can be used to achieve desegregation, and racial quotas can be used to determine who is to be bussed. Temporary measure to remedy past discrimination. Individual schools may not be required to adhere to precise district-wide ratios.

iv. De facto segregation is not unconstitutional. v. Benign classification (affirmative action) in

employment, college admissions, promotion preferences, hiring: Strict scrutiny applies. Relevent pool is the qualified applicant pool – not total minority population. Requires very precise findings of past discrimination. Virtually all quotas will be held unconstitutional. Numerical goals are more favored.

b. Alienage i. Federal discrimination against aliens subject

to rational basis scrutiny. Fed. has plenary power over aliens under A1§8 (INS).

ii. State discrimination against aliens subject to strict scrutiny. Exception where participation in government is involved (rational basis): Public school teachers, police officers, and jury service. Illegal alien children are entitled to free public education.

c. National origin d. Criteria: Characteristics which are unalterable, and

history of purposeful unequal treatment. e. Reemptory jury challenges on the basis of race

violate EP and are unconstitutional in both civil and criminal cases.

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iii. Fundamental rights a. Privacy (CAMPER) b. Travel c. Vote

b. Burden: State must show that the law is necessary to a compelling interest. No less restrictive alternative means available.

2. Intermediate scrutiny a. Applies to

i. Gender: Statutory sexual stereotypes usually unconstitutional (i.e. public school which only admits women). Affirm. action ok to remedy past disadvantage, so long as means are substantially related to important government interest.

ii. Illegitimacy: Any law which benefits legitimate children and prejudices illegitimate children will likely be invalid. Example: Inheritance under intestacy. Intentional discrimination required: Impact or effect is not enough.

b. Burden: State must show that the law is substantially related to an important state interest.

3. Rational basis a. Applies to all other areas not already covered. Most common are:

Poverty, age, mental retardation, necessities of life, social and economic welfare measures.

b. Burden on to show that the law is not rationally related to any legitimate interest.

c. usually loses. d. Privileges and immunities clause

1. Always a wrong answer on the MBE. 2. Rights of national citizenship is protected, i.e. right to petition congress

for redress of grievances, right to peacefully assemble, right to use navigable waters.

2. Obligation of contracts, bills of attainer, ex post facto laws (usually wrong answers) a. A1§10: States cannot impair obligation of both public and private K’s, unless

significant public need exists (police power - broad). b. Ex-post facto laws: Makes criminal an act that was not a crime when committed,

increases the punishment, or decreases amount of evidence needed. No application to civil laws.

c. Bill of attainer: Legislative punishment of named group or individual without judicial trial.

3. First Amendment a. Religion and separation of church and state

1. Government involvement must be neutral a. Government involvement must not lead to excessive

entanglement: Chaplan ok at hospital or prison (balance establishing religion with free exercise), but not public school.

2. Establishment a. Government may not pass a law preferring or aiding one religion

over another. Test: 64

i. Primary purpose of law must be secular ii. Primary effect of law must neither advance nor inhibit

religion. iii. Law must not forster excessive government entanglement

with religion. b. Government sponsored religious activities in public schools are

unconstitutional. Examples: Required non-denominational prayer. Daily bible reading, even if excusal allowed. Moment of silent voluntary prayer. Forbidding teaching of evolution.

c. Government aid to religious schools for construction grants and salary supplements is unconstitutional at elementary and secondary levels.

d. Government aid to parochial schools, which cannot even possibly be used for religious purposes, is constitutional. But also has to be made available to public schools on same terms. Examples: Bussing (but not for field trips), health tests, loan of textbooks (but not a/v equipment – might be used for religious purposes).

e. Tax benefits i. Direct tuition reimbursement to parents of children in

religious schools is unconstitutional because of direct effect of aiding religion.

ii. Property tax benefits for schools themselves is ok. iii. Sale of religious material can be taxed.

f. Opening prayers: Based on long tradition of practice, opening prayer is ok if done by state legislator, but not judge.

g. Public displays: OK so long as secular purpose (celebrate holiday season) such that benefit to church is incidental, and no excessive entanglement. Examine who erected the display (city good, church bad), and what it contained (no one religion favored).

3. Free exercise a. Violation where government burdens persons because of their

religious beliefs. b. Beliefs are absolutely protected. Court may not determine

reasonableness of beliefs (whether one religion is right and another is wrong or invalid), but court can determine sincerity.

c. Conduct in furtherance of those beliefs may be regulated. Courts balance burden to person vs. government interest in regulation of that conduct.

i. Generally applicable criminal law can be applied regardless of burden because legislature did not intend to burden religion with law. Example: Indians can’t smoke peyote. If legislature did intend to burden religion, then the law is invalid.

d. Examples (free exercise claim usually loses): i. Polygamy can be regulated

ii. Sunday closing laws are constitutional despite Jews who wanted to open on Sunday to be closed on Saturday

iii. Jews can be prohibited from wearing yarmulke in military 65

iv. Public welfare benefits cannot be denied for refusing to work on day of rest.

b. Methodologies 1. Content specific or content neutral?

a. Content specific regulation of protected speech must meet strict scrutiny.

b. Content specific regulation of unprotected speech must be one of these areas:

i. Clear and present danger ii. Defamation

iii. Obscenity iv. Child pornography v. Fraudulent commercial speech

vi. Fighting words c. Content neutral regulation

i. Time, place and manner restrictions ii. Requirements

a. Serve significant government interest b. Narrowly tailored c. Leave open alternative channels of communication.

iii. Types of forums a. Traditional public forum (street, park, sidewalk,

airport terminal, government office building) b. Limited public forum (library, school, state

fairground) c. Nonpublic forum (jail, military base, inside of

courthouse, private billboard): Government may prohibit all free speech. Regulation need only be reasonable (rationally related to some legitimate government interest).

d. Private property (privately owned shopping center): No right to free speech.

2. Facially invalid: a. Overbroad: Punishes both protected and unprotected speech. b. Vagueness: So unclearly defined that persons of ordinary

intelligence must guess as to its meaning. c. Prior restraints: Censorship, licensing, permits, injunctions.

Government restrictions in advance of publications are unconstitutional. Exception for national security, and obscene material (but seizure of books requires warrant and probable cause, and film requires prompt judicial determination).

d. Unfettered discretion in licensing official c. Regulation of speech content

1. Clear and present danger: Speech may be punished if it is directed at producing imminent unlawful conduct and likely to produce such unlawful conduct.

2. Defamation

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a. Actual malice (knowing falsity or reckless disregard for truth) required for recovery if is:

i. Public officials ii. Limited public figures: Voluntarily injects himself into

public eye for limited time. iii. Public figures: Celebrity or sports person.

b. Private person must show mere negligence for a matter of public concern to recover. For matter of private concern, all has to show is that false statement was made. Showing of malice can recover punitive damages.

3. Obscenity a. Test

i. Material appeals to prurient interest in sex, applying contemporary local community standards.

ii. Depict sexual conduct in a patently offensive way, determined by local community standards

iii. Lacks serious literary, artistic, political or scientific (LAPS) value. Reasonable person standard.

b. Offensive language may be restricted without passing test on airwaves because children have unsupervised access.

c. Private possession is protected in privacy of home, but everything else (purchase, send in mails) can be restricted.

d. Zoning: Can be used to regulate location and distribution of adult theatres and bookstores.

e. Liquor: State can regulate non-obscenity (i.e. nude dancing) in establishments licensed to serve liquor.

4. Child pornography a. Can be punished even if not obscene. b. Private possession can be punished.

5. Fraudulent commercial speech a. Harmful and illegal products can be regulated. b. Solicitation by lawyer is prohibited (lawyer-initiated), but

advertising is protected. c. Utilities have a right to include advertising with bills. d. Solicitation: Balance individual’s right to privacy with freedom of

commercial speech. Evaluate prior restraint, overbreadth, alternative means of advertising, narrowly drawn.

6. Fighting words a. Insults likely to provoke ordinary person to commit an act of

violence. b. Statute must be viewpoint neutral (not just based on race, religion

or gender). d. Other

1. Content 2. Public employment, licenses, benefits based on exercise of expression

and association 3. Licensing required for free speech

a. Requirements 67

i. Content and viewpoint neutral ii. Narrowly drawn

iii. No unfettered discretion b. Subject to facial attack (overbroad, vague, prior restraint) c. Scenarios

i. Statute valid, but unconstitutional as applied to speaker (permit wrongfully denied or too restrictive): Speaker must apply for permit, be denied, and seek prompt judicial relief BEFORE SPEAKING.

ii. Statute void on face: Speaker may speak even without having applied for permit, and successfully defend against prosecution.

iii. Injunction against speaking: Speaker must obey injunction even if facially invalid. Appeal the injunction. Invalidity of injunction is not a defense to charge of contempt from disobeying injunction.

4. Association a. Membership cannot be punished unless:

i. Organization advocates unlawful conduct ii. Individual is a knowing and active member

iii. Individual has specific intent to further illegal objectives of organization

b. Membership lists can be forcibly disclosed if government interest outweighs interference to right to freely associate. Communist party, ACLU and NAACP can’t be required, but KKK probably can. Generally can’t require disclosure unless membership would be illegal

c. Loyalty oath as condition to public employment generally invalid, but can require oath to support and uphold constitution and oppose violent overthrow of government.

5. Freedom of press a. No special 1st Amendment privilege beyond what is afforded to

private citizen. b. Warrant required for search of news room c. Newsperson has no privilege to refuse to disclose sources of

information to grand jury. But many states do have shield laws which do afford such a privilege.

d. Criminal trial can be closed to the press if compelling or overriding state interest is shown, and closure is narrowly tailored so that ’s right to public trial isn’t interfered with.

e. Fairness: Broadcasters can be required to provide equal time to both sides of an issue because of limited airwaves. Newspaper cannot be so required.

6. Symbolic speech: Medium itself is the message a. Regulation must further significant government interest b. Narrowly tailored c. Leave open alternative channels

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d. Example: Draft card burning can be prohibited because of the need for smooth running of draft system. Black armband and flag burning is protected (ban would be content specific and lacks significant government interest).

4. Selective incorporation of bill of rights to states via 14th amendment due process clause a. Do not apply:

1. Right to carry arms 2. Right to grand jury in criminal cases 3. Right to jury trial in civil cases 4. Right against excessive bail

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