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PARA 86 FINAL EXAM STUDY GUIDE
The Midterm will be 25 MC questions, and two, 25 point essay questions. You will need both a Scantron and a Blue Book. The essay questions will ask you to analyze a legal question; the topics for analysis will come from the three cases we have studied: Backley, Medina, Norcross, Marvin, Albertson’s, Spriggs
.
Elements ofo Negligenceo Fraud
Motion Brief Authority:
o Anything a court may rely on in deciding an issue.o Primary:
The law itself: Enacted law: constitutions; statutes; ordinances;
regulations Common law: here, created by the courts: e.g. SPL
o Secondary Non-law sources on which the court may rely. For background
and broad understanding of a specific area of law. List is infinite, but some are used regularly.
Legal resources:o Law dictionaries: Blackso Law reviews
Published by law schools: Obama was Harvard Law Review
o Legal encyclopedias Corpus Juris Secundum; American Jurisprudence = Am. Jur. 2nd
o Restatements Published by American Law Institute Drafted by experts and used as models by
legislatures
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Common error: to site Restatements as primary source: [they tend to look like controlling authority in Published Decisions]
o Treatise By an expert in a specific area of law;
covers the entire topic In CA: Witkin treatises: four sections
Mandatory Authorityo What a court “must” follow when deciding an issueo Trial courts must follow Courts of Appeal and Supremeo Courts of Appeal must follow Supreme
Persuasive Authority:o Court may follow; is not boundo Both secondary source law and Primary law from outside the
Jurisdiction: CA does not have to follow an Ohio Appeals court decision, but
it might be instructive on an issue Elements
o Substantive law Procedural law
o Some cases are decided or dismisses on procedural grounds; you must know which
Ethics and internet researcho Free websites, e.g. Wikipedia, have no legal duty to be accurate; you
do.
PARA 86 CH 2
What law governs?o State or Fedo Are there both Criminal and Tort issues presento Is it a contract case: an agreement that ought to be enforced
Goods or services? The law is very different
PARA 86 CH 3
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Analyzing a statuteo Short title: for organization and search o Purpose clause
States the legislative purpose in enacting the law Important for interpretation
Court must implement what the legislature intendedo Scope section
Legislation is always bound within a scope Overbroad; vague
o Definition section For terms used in the statute; great if included; can’t expect it
o Substantive provisions This is the body of the statute
o Reference information Annotations are here: good for focusing research; These have no legal authority
Process:o Find all statutes that may applyo Identify the statutory elementso Compare to the facts of your case
CANNONS OF CONSTRUCTION (how a court interprets a statute)
Plain meaning ruleo If the meaning of a statute is clear on its face, it will be interpreted
according to its plain meaning.o Ambiguity must be reconciled
Define ambiguity Legislative history
o Can be very helpful to determine legislative intent; goes to clarity and guides the court for interpretation
o e.g.: did the legislature intend persons to include non-natural or natural persons only
Lists in statuteso First step:
If there is a list of what is covered, everything else is excluded BUT: not always true: statute should state if list is to be
so read
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(expressio unius)o Ejusdem generis
When a general term or phrase follows a list, the general term will be interpreted to include only things of the same type as those listed
Ex: List: horses, cattle, sheep, pigs, goats, or any other barnyard animal
Despite the breadth of the term, it really only included four legged, hoofed mammals: no chickens
o Last antecedent rule Qualifying words or phrases apply only to the words or phrases
immediately preceding EX: Texas Courts, California Courts, and New York
courts in the Federal system; should not extend to California or Texas courts in the Federal System; only New York’s
PARA 86 CH 4
Syllabus:o Brief summary
Head noteso Prepared by publisher: summary of points of law in opinion
Key numberso Westlaw thing: refer to specific subtopics within the headnotes; are
searchable through wests Digests Body of the opinion
o Facts; proceedings; issues;o They are not always obviouso Rule of law: statute, case law, etc.o Holding: the Court’s ruling on this case
Case briefingo Depends on what you are using it for
Marbury v. Madisono Judicial Review; the law is what the SC says it is.
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Access to courts: Live controversy requirmentso Ripenesso Advisory Opinionso Mootnesso Standing
1st Amendmento Speech and assembly
Content v. Conduct In schools: read ch 6 Cohen v. Caifornia
Fuck the draft Time, place and manner Less protected
Commercial Advertising Un protected
Obscenity Appeals to the prurient interest and lacks societal value
o Religion Establishment clause Free expression clause
o Press In theory: no greater protection
Can use illegally obtained info, if not involved in the illegality
Access to trials 2nd amendment
PARA 86 CONTRACTS LECTURE
K requires: Offer, Acceptance, Considerationo Agreement that is enforceable in a court of law
Offeror Offeree Agreement (mutual assent)
o The manifestation of two or more persons of the substance of a contract
Consideration
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Capacity Defenses to enforcement
o Genuineness of assento Writing and form
If required, may be a defense; may still be enforceable withouto Unjust Ks can be ‘avoided’
ADR and arbitration What does Common Law mean? UCC and what it covers
o Article 2 sales; 2a leases Bilateral K
o A promise for a promise Unilateral K
o A promise for an act; can only be accepted by performanceo Classic exampleo The ‘if’ wordingo Offeror cannot revoke if performance has begun
Express K Implied in Fact K
o Elements Π provided prop or services to Δ Π expected payment Δ had opportunity to reject
Quasi Ko Also called implied in law Ko To prevent unjust enrichment/detrimento One party receives benefit conferred by anothero Realization by Δo It would be unjust to allow recipient to receive without pay
The Powell case She benefitted from father in law’s loan She is bound by QK
Unjust Enrichment Void K
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Voidable K Unenforceable
o Due to some defense Offer
o The manifestation of willingness to enter into a bargaino Offeror must objectively intend to be bound by the offero Terms must be definite or reasonably certaino Must be communicated to offeree
Objective theory of K’so Reasonable person would conclude that the parties are bound
Power of Acceptance Advertisement
o When offero Classic example
Rewardo Knowledge before acting
Auctiono w/ reserve
the default position it is an INVITATION TO MAKE AN OFFER
that means: the auctioneer puts items before the audience, and they are INVITED to make offers for the item
So, the auctioneer retains the right to refuse the highest bid and withdraw the item for sale
o w/out reserve here, the auctioneer is the offeror, not members of the audience here, the auctioneer expressly gives up his right to withdraw the
goods from sale, and must accept the highest bid however, the auctioneer can still set a minimum bid
Termination of offerso By action of Parties:o Revocation (offeror)
Express or by actiono Rejection (Offeree)
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o Counteroffer McLaughlin
M.I.R = Mirror Image Rule Changed terms created couter-offer
o By operation of law:o Destruction of subject mattero Death/ incompetenceo Supervening Illegalityo Lapse of time
Mirror Image rule Moral Obligation
o A duty binding in conscience, but not in lawo But, abstaining from engaging in behavior to which one has a right to
engage, can be seen as consideration Acceptance
o A manifestation of assent by the offeree to the terms of the offer in a manner invited or required by the offeror
Silence as acceptanceo By statement of offeroro By agreemento Prior dealingso Taking benefit
Mail Box Ruleo Acceptance on dispatch
Even if offeror hears that offeree has changed his mind before he receives the acceptance, too late- the acceptance sent controls
o Revocation is not effective until received So, if Sally offers Ed a job, and Ed sends his acceptance, there
is a contract when that acceptance is sent, even if Sally sends a revocation of the offer before she receives the acceptance
o Rejection: when receivedo Counteroffer: when received
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Contract: a promise, or set of promises for the breach of which the law gives a remedy or the performance of which the law, in some way, recognizes a duty
Common law v. Art 2 goodso Art 2 UCC covers contracts about goodso Goods:
All things moveable at the time they are identified to the K So: most tangible things; not:
Real estate Services Intangibles (a patent) Construction contracts Corn after harvest Cow after being born
o Merchant Non-merchant Many sales are interpreted differently whether the parties
involved are merchants or not Merchant: one who regularly deals in goods of the kind sold; or
Who, by his profession, holds himself out as having specialized knowledge or skills about the goods involved
Further narrowed by:o General business practices: anyone in any business
can be a merchant (SOF, firm offers)o Goods of the kind sold: implied warranty of
merchantability As to validity
Void K Totally without legal effect from the beginning; it can
never be enforced by either party Voidable K
When one or both parties may elect to void Unenforceable K
otherwise valid, but there is some extraneous defense to enforcement: SOL or SOF
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Mutual Assent: Offer and Acceptanceo One party must accept the other’s offer
Tested by Objective standard: did words or conduct manifest a present intention to enter into a K
o The offer: Creates Power of acceptance in offeree and a corresponding
liability on the part of the offeror To be an offer: a communication must create a reasonable
expectation in the offeree that the offeror intends to be bound by the terms of the offer
Detrimental relianceo If offeror should reasonably expect that offeree
will rely to her detriment on the offer, the offer will be held irrevocable as an option K for a reasonable length of time;
o Or, offeree will be entitled to relief to the extent of her reliance
Part performanceo Once offeree begins performance, offer can no
longer be revoked Promise, undertaking or commitment
o As opposed to invitation to make preliminary negotiationso Must be intent to enter the Ko Language:
Not rigidly defined; I am asking for N; I would consider selling for N are invitations to negotiate, not offers
o Surrounding circumstances Jest, anger, or bragging, and understood as such will have no
legal effecto Prior practice and relationship of the parties
One way of establishing reasonableness and expectancy o Method of communication
The broader the medium, the less likely it is an offer: Advertisements are usually invitations to make an offer
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Requirement: Buyer promises to buy from a certain
seller all of the goods the buyer requires, and the seller agrees to sell that amount to buyer
Output: Seller promises to sell to a certain
buyer all of the goods that seller produces, and the buyer agrees to buy that amount from the seller
o Requires good faith on both endso Order change cannot be unreasonably
disproportionate to: Any stated estimate; or Comparable prior output K’s
Communication to offerreeo To have the power to accept, offeree must have knowledge of the
offer; proposal must be communicated Consideration:
o Something of legal value in exchange for a promise Note: legal detriment/ benefit
o Must meet: bargained for exchange Gift promise (gratuitous promise)
o Unenforceable for lack of consideration Gratuitous promise- no consideration Delivery is not complete unless complete dominion and control
is surrendered by donoro Promises/ gifts during engagement
Ring comes back: symbolic meaning beyond gift The rest: tokens of affection, irrevovable
Illusory Promiseo If either party can chose not to perform
Moral obligation Pre-existing Duty Rule
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Past considerationo The retirement gift
Accord and satisfactiono Where parties agree to accept something different in satisfaction of
the original contracto Satisfaction:
The performance of the accord Equitable Remedies
o Sp Performanceo Rescission
Material breach; fraud; duress; undue influence; msitakeo Restitution o Injunction
Promissory Estoppelo A promiseo Promisor’s reasonable expectation of relianceo Actual, reasonable reliance by the promiseo Injustice if not enforcedo Or: reasonable, foreseeable reliance, on a promise, that results in an
injury that warrants some remedy Infancy Doctrine Disaffirmance Duty of Restitution
o The competent party returns the consideration to the minor Duty of Restoration
o Minor returns the goods to the competent party Ratification
o Minor becomes adulto Principal→ agento Corporation→ agent
Emancipationo Terminates Parent’s liability for necessities
Necessaries of life
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Non-compete clauseo Reasonable in three aspects:
Line of business protected Geographic area Duration
Unconscionabilityo Oppressive or manifestly unfair
Prima Facie case for Fraud: False representation of material fact With intent to deceive Justifiable reliance Injury
o Scienter = intent to deceive o Fraud by Concealment
Specific action to conceal a material facto Silence as misrepresentation
Usually no duty; unless: Non-disclosure would cause bodily injury or death Fiduciary relationship Statutory duty to disclose
Statute of frauds (154)o What it iso What K’s must be in writing
PARA 86 COMMUNITY PROPERTY LECTURE
NOTE: I will NOT be testing you on Van Camp/Periera.
SPOUSAL SUPPORT
Reciprocal obligation to support each other CP; SP; and QCP – later Not just for post dissolution Dissolution
o Earning cap to maintain standard
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o Earning capacities Marketable skills How domestic life dimished earning cap of skills
Or increased cap of working spouseo Ecuation, etc.
Goal to make each party independent within reasonable period of time
One half length of marriage- guideline only Ten years = lengthy marriage
o Court can still deny support Here, new cohabitation DOES affect support
o Dies with either partyo Dies with remarriage
Putative spouseo Significant changeo Error in expectations
Community propertyo Presumption: All property acquired during marriage, except by
descent, devise, or gift, is CPo Equal management and control
SPo All prop owned prior to marriageo Gift, devise, descent, bequesto Profits of SP
QCPo Property that would be CP if it had been purchased in CAo Divided as CP upon dissolution
Source That which flows from SP is SP; vice versa What funds were used to acquire
Tracingo To overcome presumption
PROPERTY
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Real
Personal
Tangible/ intangible
Estates in property
o Tenancy in common
Percentage irrelevant; No right of Survivorship
To heirs
o JTWROS
Possession, interest, title, and time
ROS: interest to surviving spoouse
o TBE
Only for H and W
Not in CA
Community property
o Acquired during existence of MEC
o Except
Gift, bequest, devise, descent
Rents, issues, and profits of SP
Property acquired in exchange for SP
o Tracing can overcome presumption
o Problematic
Personal injury recovery; 3d P tortfeasor
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If injury caused during marriage = CP
Injury Post separation = SP
Against other spouse = injured spouses SP
Retirement pensions
CA: CP to extent earned during MEC
CA ignores wage replacement; sees as savings for old age
Vested
o Minimum met to qualify for benefit
o Unvested if not yet completed
CA treats both as CP
Stock options
o Time rule again
o Education and training
Default: not CP
But CA has “equitable right of reimbursement, if:
CP funds are used to pay for education, or are used to repay loan; AND
Ed/training substantially enhances the earning capacity of the educated spouse
Also applies if CP funds were used to pay off pre-maritally acquired student loans
If loan is still outstanding at divorce, payments are assigned solely to the educated spouse
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Dissipation
o One party intentionally depletes MEC
o Equitable remedy
Separation
o After date of, is SP
o Date: when marriage is truly over, with intent to remain single
Subjective: date shown by evidence
Objective: outward appearance
Presumptions: title in joint form; disproportionate contributiono Title creates presumption:
Howard and Wilma as JT = CP Wilma, as married woman, sole and SP = SP
o Title can be transmuted during marriage To CP; one spouse From CP to SP: both spouses
o SP funds contributed to CP and proof if SP inent: Right of reimbursement; no interest Includes improvements to other’s SP, or CP
Tracingo To prove source
Business and valuationo Goodwill
Likelihood of repeat business Is expected earnings
o Valuation of business Professional assessment
o Dates
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At marriage; at dissolution
When community funds or labor enhance value of SP businesso To apportion the SP component of the business the managing spouse
brought in to the marriage and the CP value added by her labor Two methods:
Which to useo Pereira when managing spouse was reason for
increase in valueo Van Camp when market rose on its own
QDRO (Qual. Dom. Rel. Order)o To secure interest in retirement income of ex spouse
Liability of community estateo All debts of either spouse, before or after marriageo Unless
Separate earnings are kept out of reach of debtor spouse; wall between, no comingling
o Reimbursement If CP funds pay support from former marriage, and SP funds
were available, Community estate has right of reimbursement Liability of SP
o for all debts self incurredo Not for debts of other spouse
Except for Necessities of life Debts at dissolution
o Divided equally as with propertyo SP of non-debtor spouse not liable for pre-marriage debts
Tort liabilityo Was tort committed for benefit of community?o If so, CP funds satisfyo If not CP funds do not
Quasi marital propertyo Marriage was ultimately not valid; innocent spouse is protected
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HEARSAY
NOTE: I will NOT test you on all the exceptions: I will let you know which to memorize early next week. It will only be three.
Hearsay introo An out of court statement, offered into evidence, to prove the truth of
the matter assertedo Rationale
Party against whom testimony is offered has a (constitutional) right to cross examine the declarant
To test:o perceptiono Memoryo Articulatenesso Veracity
Contemporaneous cross examination The witness could be offering his own statement:
o I do not remember the accident, but I remember saying to my wife: wow, what a crash – the red car ran the light
o Statement was out of court, is for the proof, and its content cannot be challenged
o Truth of matter asserted: Witness testifies: “on April 2nd, Debbie said to me, ‘I was in
Buffalo yesterday” If issue is whether Debbie was in Buffalo on the 1st, it is
hearsay; If issue is whether Debbie was able to speak on the April 2nd, it
is NOT hearsay.
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Declaranto Person who makes a statemento Implied assertionso Assertive conducto Not
Radar, tracking dogs Not hearsay
o To show effect on listenero Verbal acts
Hearsay Exceptionso Prior inconsistent statements
Declarant must be testifying Inconsistent with current testimony If former statement made under oath;
o Admission by party opponent Admission that amounts to a prior acknowledgment of a
relevant fact Party cannot object that he does not have opportunity to
explain; covers cross exam need, = not hearsay Can be individual, adoptive (silence too), authorized, agent, or
co-conspirator Judicial:
Judicial: conclusive: verdict Evidentiary: can be explained: testimony at prior trial
o Former testimony Of now unavailable witness; as long as there is/was Sufficient similarity of parties and issues; Opportunity to cross was meaningful
GJ testimony does not fit: no chance to crosso Statements against interest
Unavailable declarant: statement against own pecuniary, proprietary, or penal interest, when made
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Unlike admission: this must have been against interest when made
o Dying declarations In prosecution for homicide, or in civil trial; Declaration of now unavailable declarant; Believing death was imminent; Concerns cause or circumstances of death
o Present state of mind I am gonna shoot you; I intend to leave next week; I love living
in Coloradoo Excited utterances
During or soon after startling event; Under stress; About immediate facts – no time to reflect
o Business records Any writing or record; Kept in normal course of business; Not for litigation Under duty to record
o Past recollection recorded Keep apart from “present recollection revived” Made by observer when facts were fresh in memory
o Reputation/Opinion Character
Citation: Blue Book and Association of Legal Writing Directors (ALWD)
1. Case name
2. Reporter: volume number, abreviated title of reporter; page number om which case starts
3. pinpoint page
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4. Parallel publication (not necessary today)
Federal Court:
United States v. Matlock, 415 U.S. 164 (1974)
United States v. Matlock is case name;
415 U.S. 164 ; gives Reporter and how to find case; U.S. is the Reporter for the U.S Supreme Court; 415 is the volume number; 164 is the page number
No need to include the court name because we know from the citation.
Fed Court of Appeals:
United States v. Martinez-Jimenez, 86f F2d 664 (9th Cir. 1989)
Need the court here, as it is not obvious for the citation.
United States v. Central R.R., 436 F Supp. 739 (N.D. Ill 1990)
State Court:
Marvin v. Marvin, 19 Cal.3d 660 (1976)
Norcross v. Winters, 209 Cal.App.2d 207 (2d Dist. 1962)
For Personal Names; cite only the last names
For businesses: Include organizastion's full name; but, only the legal desigantion once:
Correct: Davis v. Sally Smits Co.
Incorrect: Davis v. Sally Smits CO., Inc.
If Name of org is initials, and the org is well known, omit the periods:
ACLU v. Houseman; not:
A.C.L.U. v. Houseman
In re; Ex Parte and Ex Rel.
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In re Refers to an action that did not invlove adversarial parties
Ex Parte refers to an action of one party without contest from the other side: e.g. an uncontested divorce:
Ex Rel. refers to an action by one person on behalf of another, such as a parent on behalf of a child
Various:
Do not include "The" when it is the first name of a party
When property is a party, list only the first piece of property from the case name:
Maine v. One 1998 Cadillac Seville
there may be several items of property listed in the pleading; only cite the first.
U.S. Const art. IV § 3
Id. and Id at
Code of Civil Procedure:
CCP §§ 437c, 352a
Citation within Citation: Case Cite; Citing: Case Cite
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