AGENCY SHORT SHEET

FORMATION OF AGENCY RELATIONSHIP

Agency—fiduciary relationship arising when one person (“principal”) appoints another (“agent”) to act on principal’s behalf, subject to principal’s
control, with consent of both parties
Consent—MUST have consent of both parties (express or implied)
On Behalf Of—agent must act primarily for benefit of principal
Control—agent must be subject to principal’s control
Capacity—principal: contract capacity; agent: minimal capacity
Formalities—no consideration; no writing (unless SOF)
Agent’s Duties to Principal—agent is fiduciary of principal
Duty of Care—carry out agency with reasonable care Sliding Scale—depending on special skills and compensation
Duty of Loyalty—must treat principal fairly
(1) May not use position to profit for themselves
(2) Must act solely for benefit of principal
(3) Must not be adverse to or compete with principal
(4) May not use principal’s property for own purposes
Duty of Obedience—agent must obey principal’s reasonable directions
Duty to Disclose—all relevant information
Principal’s Duties to Agent—principal NOT fiduciary duties imposed by contract, reasonable compensation, reimbursement for expenses

CONTRACT LIABILITY
General—agent power to bind principal to contract entered on their behalf ONLY IF acted with authority actual, apparent, ratified
Authority principal liable (agent not liable)
Principal Undisclosed or Partially-Disclosed agent also liable
Actual Authority— agent reasonably believes they possess authority
based on principal’s manifestations (words or conduct)
Express—authority conveyed by principal’s words (oral or written)
Implied—authority agent reasonably believes they have based on principal’s words or conduct:
(1) Incidental to express authority (necessary to accomplish task)
(2) Custom known to agent
(3) Principal’s prior acquiescence
(4) Emergency measures
Termination/Revocation—specified time; specified event; lapse of reasonable time; change in circumstances; agent’s breach of fiduciary duty;
either party’s unilateral termination; death or incapacity
Apparent Authority—third party reasonably believes authority exists based on principal’s manifestations (words or conduct, holding out
another as possessing authority)
Agent Exceeds Actual Authority
(1) Prior Act—principal previously permitted agent to exceed actual authority and knows third party is aware of this (or lingering apparent
authority after actual authority expires)
(2) Power of Position—agent’s title/position from principal leads third party to reasonably believe agent authorized to act for principal
Ratification—agency relationship created when “agent” purports to act on behalf of “principal” without any authority at all, BUT principal
subsequently validates the act and becomes bound gives transaction retroactive effect
(1) May NOT be used to alter rights of intervening parties
Express—oral or written affirmation
Implied—accepts benefits OR fails to disaffirm
Requirements—principal must:
(1) Know/reason to know all material facts;
(2) Accept entire transaction; AND
(3) Capacity (competent & legal age)

LIABILITY FOR AGENT’S TORTS SEE TORTS SHEET

 PARTNERSHIPS SHORT SHEET
FORMATION OF PARTNERSHIP
Partnership—association of 2+ persons to carry on as co-owners a business for profit (subjective intent to form p’ship irrelevant)
Formalities—NONE (unless SOF)
Sharing Profits presumption of partnership (unless if used to satisfy debt/obligation)
Right to Participate in Control presumption of partnership
Other Factors (NO Presumption)—jointly held property, parties designate relationship as p’ship, sharing of gross returns (revenues)
Partnership Agreement—NOT required, but allows partners to contract around almost all statutory provisions

MANAGEMENT OF PARTNERSHIP
Voting—all partners have equal rights in management and equal votes (unless otherwise agreed) 1 partner, 1 vote
Ordinary Course of Business majority of partners (# of partners; NOT % ownership)
Extraordinary Acts unanimous consent of all partners

FINANCIAL RIGHTS/OBLIGATIONS AND LIABILITY

Compensation—NO right to salary or other compensation for services rendered to partnership (unless otherwise agreed)
Profits/Losses—profits/losses shared equally among partners (by #) (unless otherwise agreed)
Partnership Tort Liability—partnership liable for injury caused by tortious conduct of partner/employee acting in ordinary course of business or
with authority of partnership
Partnership Contract Liability—partnership liable on contracts entered into by partner in scope of business or with actual/apparent authority
Actual Authority—partner reasonably believes they have authority based on communications with partnership:
(1) Partnership agreement
(2) Vote of partners
(3) Statement of partnership authority filed with secretary of state
Apparent Authority—partner is agent of partnership and can bind to transactions within scope of business (unless third party knew/had notice of
partner’s lack of actual authority)
Partnership by Estoppel—person holds himself/another out as partner, third party reasonably, detrimentally relies
Partners’ Liability—general partnership each partner (personally) joint & severally liable for all partnership obligations
Indemnification—plaintiff must first exhaust partnership resources; partners entitled to indemnification from partnership partners are
essentially guarantors
Newly-Admitted Partners—NOT personally liable for obligations incurred before admission
Dissociating Partners—remain liable for obligations arising when they were partner

PARTNERS’ FIDUCIARY DUTIES

Fiduciary Duties—partners owe to each other and partnership
Duty of Loyalty
(1) Account to p’ship for any benefit derived from conducting p’ship business, using p’ship’s property, or appropriating opportunity
(2) Refrain from taking adverse interest to/competing with p’ship
Duty of Care
(1) Refrain from engaging in grossly negligent or reckless conduct, intentional misconduct, or knowing violation of law
Duty of Disclosure—duty to provide complete and accurate information concerning partnership (NOT FIDUCIARY DUTY)
(1) P’ship agreement MAY ELIMINATE duty of disclosure
PARTNERSHIP PROPERTY
Determining Partnership Property
Acquired in Partnership’s Name deemed p’ship property
Purchased w/ Partnership Funds presumed p’ship property
Otherwise separate property
Rights in Partnership Property
Partnership’s Rights—totally unrestricted (p’ship owns property)
Partners’ Rights—NOT co-owner/NO interest in of p’ship property partner can ONLY use p’ship property for p’ship purposes
Partnership Interests—personal property of partner comprised of:
Management Rights CANNOT be unilaterally transferred by partner (requires unanimous vote)
Financial Rights CAN be unilaterally transferred by partner

DISSOCIATON OF PARTNER
Dissociation—partner’s withdrawal from partnership partner always has power to dissociate, but liable if dissociation is wrongful
Term Partnership—partners agreed (explicitly/implicitly) to remain as partners for definite term or until completion of particular undertaking
At-Will Partnership—NO agreement to remain as partners
Wrongful Dissociation—breach of express term in p’ship agreement OR term partnership before end of term
Consequence of Dissociation
For Partnership 2 options:
(1) Liquidation—p’ship dissolved and business must be wound up
(2) Buyout—p’ship continues, dissociated partner entitled to buyout of p’ship interest
For Partner—wrongful dissociation liable to p’ship for damages and not entitled to buyout until term expires (damages offset)
(1) Remains liable for pre-dissociation p’ship obligations
(2) Can be liable for post-dissociation p’ship liabilities incurred within 2 years after dissociation if other party reasonably believed they were still
partner and no notice of dissociation (and vice-versa—dissociated partner can hold p’ship liable)

DISSOLUTION OF PARTNERSHIP
Dissolution—requires p’ship business to be wound up
Process for Winding Up
(1) P’ship assets applied to discharge p’ship liabilities
(2) Deficit/Insufficient individual partners required to contribute in accordance with loss shares
(3) Surplus distributed to partners in accordance with profit shares
Events Causing Dissolution
(1) Partnership At-Will partner dissociates by express will
(2) Term Partnership
a. Expiration of express term or completion of purpose
b. Consent of all partners to dissolve
c. Within 90 days of partner’s death, bankruptcy, wrongful dissociation, 50%+ remaining partners wish to dissolve
(3) Occurrence of event agreed to in p’ship agreement that requires winding up and dissolution
(4) Occurrence of event making it unlawful for p’ship to continue
(5) Issuance of judicial decree
(6) Passage of 90 consecutive days without at least 2 partners
Priority of Distribution—creditors (outside & inside) >> partners’ capital contributions >> profits/losses (if any)

LP/LLP/LLC
Limited Partnership (LP)—partnership with 1+ general partner and 1+ limited partner
Formation—certificate of LP filed w/ secretary of state, signed by all GPs (w/ GPs’ names/addresses)
Management/Operation—LP is managed by GPs, each with equal rights in management; limited partners have no management rights (but
participation in management does not create personal liability)
(1) Ordinary Business decided by majority of GPs (exclusively)
(2) Extraordinary Acts vote of all partners (general & limited)
a. Amend p’ship agreement; admit new partner; change p’ship form; dispose of substantially all p’ship’s property
Financial Rights—distributions from LP based on partners’ contributions (unless otherwise agreed)
(1) “Contribution” may be any benefit to p’ship
Liability
(1) GPs jointly & severally liable for all LP obligations
(2) Limited Partners NOT personally liable for LP obligations—limited liability; can only lose up to value of contributions
(3) Partners ALWAYS liable for own torts
Fiduciary Duties
(1) GP owes LP and other partners fiduciary duties (care, loyalty)
(2) Limited Partner does NOT owe any fiduciary duty
Other Rights
(1) Transact business with p’ship
(2) Apply for decree of dissolution
(3) Direct action against p’ship or another partner
(4) Derivative action
(5) Information
(6) GPs’ indemnification from p’ship
Dissociation—generally, same as for general partnership
(1) Limited Partner NO right to dissociate before termination of LP
(2) GP right to dissociate similar to general partnership
Limited Liability Partnership (LLP)—ALL partners have limited liability Formation—statement of qualification filed w/ secretary of state,
executed by 2+ partners
Liability—NO partner is personally liable for LLP’s obligations (but liable for own wrongful acts)
Limited Liability Company (LLC)—hybrid of corporation (for liability protection) and partnership (for flexibility/taxation) with 1+ member
Formation—filing certificate/articles of organization with secretary of state (name, registered office, registered agent)
Management/Operation—operating agreement
(1) Management can be specified in operating agreement (member-managed; manager-managed) otherwise, presumed managed by all
members
(2) Voting—each member/manager has equal rights in management
a. Ordinary Business majority vote of members/managers
 b. Extraordinary unanimous vote of members/managers
Financial Rights—profits/losses/distributions allocated based on contributions (unless otherwise agreed)
Liability—members/managers NOT personally liable for LLC obligations (all have limited liability; can only lose up to contribution)
(1) ALWAYS liable for own wrongful acts
(2) MAY pierce the veil of LLC (similar to PCV, but no grounds for alter ego/failure to observe corporate formalities)
Fiduciary Duties—members/managers owe fiduciary duties to LLC and other members (also good faith & fair dealing contractual obligation)
(1) Duty of Care—act with care person in like position would exercise, in manner reasonably believed to be in best interest of LLC
a. Business Judgment Rule—NOT liable for negligent business decisions (ONLY liable for gross negligence or worse)
 CONFLICTS SHORT SHEET
RECOGNITION OF JUDGMENTS
Core Question—Will the recognizing court recognize the judgment issued by the rendering court?
SISTER STATE Judgments—recognition required if full faith and credit satisfied + no valid defenses
Full Faith and Credit—Requirements:
(1) Jurisdiction—rendering state must have had PJ and SMJ
a. Exception—when issue of jdx has been fully and fairly litigated, jdx determination is itself entitled to FFC
(2) Merits—judgment entered by rendering state must have been on the merits
a. Default judgment on the merits
b. Not on the merits—SOL, lack of jdx, misjoinder, improper venue, failure to state a claim (with prejudice)
(3) Finality—judgment entered by rendering court must be a final judgment
a. Judgment on appeal not final judgment
b. Modifiable decree in family law not final judgment
(4) *FFC also applies to recognition of judgments between federal and state courts
Valid Defenses FFC does not apply to:
(1) Penal Judgments—judgment that punishes offense against public
(2) Extrinsic Fraud—fraud that could not be corrected during regular course of proceedings leading to the judgment
Invalid Defenses
(1) Public Policy
(2) Mistake
FOREIGN COURT Judgments—source of recognition is comity or treaty
Comity—recognizing court exercises discretion to decide whether foreign judgment should be recognized same factors as FFC + 2 additional
questions:
(1) Did the foreign court have jurisdiction?
(2) Were the procedures in the foreign court fair?

CHOICE OF LAW
Core Question—Which state’s law will govern?
Core Answer—Governing law is selected by forum court according to its choice of law approach.
Exceptions
(1) Diversity Cases in Federal Court—federal court sitting in diversity applies choice of law approach of state in which it sits
(2) Transferred Diversity Cases:
a. Proper venue choice of law approach of transferor (original) court
b. Improper venue law of transferee court
Restrictions on Choice of Law
(1) Constitutional—Constitution imposes a limit only if state’s law is chosen that has no significant contact with or legitimate interest in the
litigation
(2) Statutory—If the forum state has a choice of law statute, then the forum court should apply that statute instead of the usual choice of law
approach
THREE APPROACHES to Choice of Law
Vested Rights: First Restatement—“Under this approach, the court will apply the law of the state mandated by the applicable vesting rule. That
rule is selected according to the relevant substantive area of law.”
(1) Characterize substantive area of law—forum will generally apply its own law
(2) State applicable vesting rule
(3) Apply vesting rule to determine governing law
(4) Apply governing law to determine result
Interest Analysis—“Under this approach, the court will consider which states have a legitimate interest in the outcome of the litigation. The
forum court will apply its own law as long as it has a legitimate interest. If the forum state has no legitimate interest, it will apply the law of
another interested state.”
(1) Discuss what states have legitimate interests
(2) Characterize type of conflict
a. False conflict—only 1 state has legitimate interest
b. Trust conflict—2+ states have legitimate interests
(3) Choose governing law based on type of conflict
a. False conflict law of interested state
b. True conflict + forum state interested forum law
(4) Apply governing law to determine result
Most Significant Relationship: Second Restatement—“Under this approach, the court will apply the law of the state which is most significantly
related to the outcome of the litigation. To determine this, court will consider connecting facts (where) and policy principles (why).”
(1) Discuss connecting facts
(2) Discuss policy principles
(3) Choose governing law based on most significant relationship
(4) Apply governing law to determine result
TORTS
Vesting (1st Rest.)—governing law is where injury occurred
Most Significant Relationship (2nd Rest.)—Considerations:
(1) Place of injury
(2) Place of conduct causing injury
(3) Place where parties are at home
(4) Place where relationship, if any, is centered
(5) Policies of each state
CONTRACTS
Choice of Law Provisions—allow parties to select law that will apply to contract enforced if valid and express
(1) Invalid if—selected law has no reasonable relationship to contract; OR provision was included without true mutual assent
Vesting (1st Rest.)—if case is about:
(1) Contract Formation apply law of place of execution
(2) Contract Performance apply law of place of performance
Most Significant Relationship (2nd Rest.)—Considerations:
(1) Place of contracting
(2) Place of negotiation
(3) Place of performance
(4) Place where parties are at home
(5) Policies of each state
(6) Reasonable expectations of each party
PROPERTY
Real Property law of situs (where property is located)
Personal Property
(1) Inter vivos transaction law of situs at time of transaction
(2) Inheritance law of decedent’s domicile at time of death
FAMILY LAW
Marriage—if marriage is valid where performed, it will be recognized as valid everywhere
Divorce—forum will apply its own divorce laws
Legitimacy
(1) Legitimacy of child is governed by law of mother’s domicile at time of child’s birth
(2) Validity of subsequent acts of legitimation concerning paternity are governed by law of father’s domicile

DEFENSES to Choice of Law

Public Policy—forum court will not apply a law that is against its own fundamental public policy
Procedural Rules—regardless of outcome of choice of law analysis, forum court will always apply its own procedural rules
 CORPORATIONS SHORT SHEET
FORMING A CORPORATION
Key Characteristics of Corporations
(1) Limited liability for owners, directors, officers
(2) Centralized management
(3) Free transferability of ownership
(4) Continuity of life
(5) Taxation—C-Corp. double tax; LLC/S-Corp. pass-through
Incorporation—to form de jure corporation:
Person—1+ incorporators (person or entity)
Paper—articles of incorporation
(1) Corporation name
(2) Incorporator(s) name/address
(3) Registered agent/office address (within state)
(4) Corporate stock information (authorized/maximum # of shares, different classes, par value)
Act—file articles with secretary of state
Organizing Corporation
Organization Meeting—initial directors (incorporators if articles silent) hold meeting to adopt bylaws & appoint officers
Bylaws—internal document (not filed with state) for managing the corporation ARTICLES > BYLAWS
(1) Elements different from MBCA must be in articles (not bylaws)—voting alterations, preemptive rights, limitations on director liability, par
value of shares, restrictions on transfer of stock
Defective Incorporation—incorporators failed to effectively form corporation personally liable, unless (UNAWARE of failure):
De Facto Corporation—relevant incorp. statute (always) + good faith, colorable attempt to comply + exercise of corporate privileges (acting as if
corporation) treated as corporation (except against state)
Corporation by Estoppel—person dealt with business as if it were a corporation, estopped from denying corporate status/existence
CONTRACTS ONLY (not torts)
Pre-Incorporation Contracts—promoter acts on behalf of corp. before formation corp. only liable if adopts contract (express; implied—accepts
benefits); promoter personally liable unless novation
Foreign Corporation—register & pay fees to transact business in state
(1) “Foreign” = any jurisdiction outside state of incorporation
(2) “Transact Business” = intrastate business activity (not interstate)
(3) “Register” = file with secretary of state

ISSUANCE OF STOCK
Subscriptions—written offer to buy stock from corp.
Pre-Incorporation irrevocable for 6 months
Post-Incorporation revocable, unless consideration
Consideration for Stock—any property or benefit to corp. (money, property, past/future services, discharge of debt, promissory notes)
Amount of Consideration
(1) Traditional—par = minimum issue price
a. Watered Stock—par value stock issued for < par value
(2) MBCA—board determines value consideration (good faith)
Preemptive Rights—shareholder right to maintain existing percentage ownership through option to buy new issuance stock for money
(1) MUST be stated in articles of incorporation
(2) NO preemptive right in shares issued—for consideration other than cash, within 6 months of incorporation, or without voting rights but with
distribution preference

DIRECTORS & OFFICERS

Director Requirements
Qualifications—natural person
Number—1+ directors
Election—by shareholders
Removal—by shareholders (staggered board—w/ cause)
Vacancy—director elected by board or shareholders
Board Action—unanimous agreement in writing or at meeting satisfying quorum/voting requirements
Quorum—majority of all directors (broken if directors leave)
Approval—if quorum, majority vote of those present
Notice of Meeting—method of notice set in bylaws
(1) Regular meeting notice NOT required
(2) Special meeting 2+ days’ written notice of date, time, place (not purpose)
(3) Wavier of notice in writing or attending w/o objecting at outset
(4) Failure to give notice all actions at meeting VOIDABLE
Role of Directors—set policy, supervise officers, declare distributions, stock issuance, recommend fundamental corporate changes
Delegation—can delegate to committee of 1+ directors that can act for the board (CANNOT declare distribution, fill board vacancy, recommend
fundamental change)
Officers—agents of the corporation (agency law), selected and removed by directors
Fiduciary Duties (Directors & Officers)
Duty of Loyalty—director/officer must discharge duties in good faith, with reasonable belief actions are in best interest of the corporation
(1) Conflicts of interest; BJR does NOT apply
(2) Burden on defendant (director/officer)
(3) Self-Dealing—interested director transaction set aside, unless:
a. Transaction was fair to corporation; OR
b. Material facts fully disclosed/known and approved by majority of disinterested directors or shareholders
(4) Competing Ventures—may engage in unrelated business, but cannot directly compete with corp.
(5) Corporate Opportunities—cannot usurp corporate opportunity
a. “Corporate Opportunity” = something in corporation’s business line, corporation has interest/expectancy in; or found on company
time or with company resources
b. MUST inform and allow board to reject opportunity first
Duty of Care—director/officer must use care a person in a like position would reasonably believe appropriate under the circumstances
(1) Burden on challenger/plaintiff
(2) Nonfeasance—does nothing (must show causation)
(3) Misfeasance—decision that hurts the business (causation clear)
(4) Business Judgment Rule (BJR)—not liable for business decision if:
a. Made in good faith;
b. Was informed decision; and
c. Rational basis for decision
Director Liability—improper distributions, improper loans, ultra vires acts, breaches of fiduciary duty
Presumption—director presumed to concur unless dissent or abstention in writing or absent from meeting
Indemnification of Directors/Officers
NO Indemnify—D/O held liable to corp. or received improper benefit
MUST Indemnify—D/O successful in defending on the merits
MAY Indemnify—litigation expenses unsuccessfully defending if D/O: acted in good faith + believed conduct was in best interest of corp.
Exculpatory Clauses—articles of incorporation can eliminate liability for DUTY OF CARE ONLY (not duty of loyalty)

SHAREHOLDERS
Management of Corporation—managed by board, not shareholders
Close Corporations—shareholders can manage close corporations
(1) Close Corporation = few shareholders + stock not publicly traded
(2) Fiduciary duties owed to other shareholders
a. If controlling shareholders use power to oppress minority shareholders can sue for breach of duty
(3) Shareholder Management Agreement—sets up alternative management for close corp.
a. In articles + approved by all shareholders; OR
b. Unanimous written shareholder agreement
Professional Corporations
(1) Articles must state particular profession
(2) Directors, officers, shareholders must be licensed professionals
(3) May employ non-professionals (not to practice profession)
(4) Liability for own malpractice—BUT shareholders NOT liable for corp. obligations of other professionals’ malpractice
Shareholder Liability—generally not personally liable ONLY liable in close corporations by piercing the corporate veil—shareholder abused
privilege of incorporating + fairness requires holding them liable
Alter Ego—shareholders ignores corporate formalities
(1) Treats corp. assets as own, commingles funds
Undercapitalization—inadequately capitalized at time of formation, so not enough capital to cover reasonably prospective liabilities
Fraud
Jointly & Severally Liable
Derivative Suits—shareholder suing to enforce corporation’s claim, on behalf of corporation (corp. gets $ if s/h wins; s/h recovers costs +
attorneys’ fees)
Breach of Fiduciary Duty ALWAYS derivative
Requirements for Derivative Suit—standing + demand + corp. joined
(1) Standing—shareholder plaintiff:
a. Stock ownership at time claim arose (time of wrongdoing)
b. Fairly & adequately represent corporation’s interests
(2) Demand—shareholder must make written demand on corp. to take action
a. Some states—demand must always be made, s/h must wait 90 days before suit
b. Other states—demand not required if futile
(3) Joined—corp. MUST be joined to suit
a. Settle or dismiss derivative suit only with court approval
b. Corp.’s dismissal must be based on independent investigation that suit is not in corp.’s best interest
Shareholder Voting
WHO Votes record s/h, of outstanding stock—1 share, 1 vote
(1) Outstanding Stock = shares issued, and not reacquired
(2) Record Shareholder = owner on record date (≤ 70 days before meeting; fixed by board)
(3) Exceptions:
a. Treasury Stock—issued stock reacquired by corp. NO votes because not outstanding on record date
b. Death of Shareholder
c. Voting by Proxy—writing, signed by record s/h, directed to corp. secretary, authorizing another to vote the shares
i. Revocation of Proxy—s/h attends meeting, writes to corp. secretary, or appoints another proxy
ii. Irrevocable—only if explicit and coupled w/ interest
(4) Voting Trusts—written trust agreement; copy to corp.; transfer legal title of shares to trustee; original s/h receive trust certificate and retain
all rights except voting
(5) Voting (“Pooling”) Agreements—in writing; signed

WHERE Vote shareholder meetings

(1) Annual Meeting—MUST be held within earlier of: 6 months after corp.’s fiscal year; or 15 months after last annual meeting
a. Primarily to elect directors
(2) Special Meeting—MAY be called by board, president, holders of 10%+ outstanding shares, anyone else authorize by articles/bylaws
a. MUST be for proper s/h purpose
(3) Notice—MUST give written notice 10-60 days before meeting (postmark) to every s/h entitled to vote
a. Notice MUST state: date, time, place (purpose, if special)
b. Express Waiver—writing, signed, any time
c. Implied Waiver—attend meeting w/o objecting at outset
d. Failure to give notice actions at meeting VOIDABLE
WHAT Vote elect/remove directors, fundamental corp. changes
HOW Vote
(1) S/h Quorum—majority of outstanding shares entitled to vote
a. Based on # of shares, not shareholders
b. Quorum not broken if shareholders leave meeting
(2) Voting (generally)—1 share, 1 vote approval if votes cast in favor exceed votes cast against
(3) Voting of Specific Matters
a. Elect director plurality (person with most votes)
b. Remove director
i. Traditionally majority of shares entitled to vote
ii. Modern majority of shares that actually vote
c. Approve fundamental corp. change
i. Traditionally majority of shares entitled to vote
ii. Modern majority of shares that actually vote
d. “Other matters” majority of shares that actually vote
(4) Cumulative Voting (Optional)—at-large election for directors by shareholders top finishers elected to board
a. Voting Power = # of shares * # of directors to be elected
b. Articles must provide for use of cumulative voting
Stock Transfer Restrictions—generally, shareholders may freely transfer ownership interest; BUT restriction valid if no undue restraint on
alienation (reasonable)
Restriction Requirements—conspicuously noted on stock certificate OR transferee had actual knowledge at time of purchase
Shareholders’ Inspection Rights—any s/h has right to inspect books & records of corp., with 5 business days’ advance written notice
Non-Controversial unqualified right, regardless of purpose
Controversial Issue qualified right; s/h MUST state proper purpose
Distributions—payments by corporation to shareholders (dividends, redemption of shares, repurchase of shares, distribution on liquidation)
Right vs. Discretion—1+ class of stock must have right to receive assets on dissolution otherwise, board’s sole discretion to declare
(1) S/h only has right to distribution when board declares it
(2) NO right to compel distribution ONLY can force distribution if very strong showing of abuse of discretion (direct suit)
(3) Record s/h receives dividend; preferred shares paid first
(4) Modern View—corp. cannot make distribution if insolvent
Unlawful Distributions
(1) Directors jointly & severally liable good faith reliance defense
(2) Shareholders personally liable only if they knew distribution was improper when received

FUNDAMENTAL CORPORATE CHANGES

Requirements—board action adopting resolution (unanimous writing OR majority of directors present) + submitting proposal to shareholder w/
written notice + shareholder approval (majority of shares entitled to vote) + submitting documents to secretary of state (sometimes)
Types of Fundamental Changes
Amendment to Articles of Incorporation
Mergers or Consolidations
(1) Shareholder approval by BOTH corporations
(2) Short-Form Merger—parent corp. merges 90%+ owned subsidiary into itself (NO s/h approval required)
(3) Successor Liability—surviving corp. succeeds all rights and liabilities of constituents; creditors can sue survivor corp.
Transfer of Substantially All Assets—75%+ of corp.’s assets
Conversion to Another Form of Business
Dissolution
(1) Voluntary Dissolution—dissolution by corporate act continues corporate existence to wind up and liquidate affairs
(2) Involuntary (Judicial) Dissolution—by court order, upon:
a. Action by Attorney General—claiming corp. fraudulently obtained articles or is exceeding/abusing its authority
b. Action by Shareholders—following grounds:
i. Director abuse, waste, misconduct, fraud
ii. Directors deadlocked threating irreparable harm
iii. Shareholders deadlocked and failure to elect 1+ directors at 2+ consecutive annual meetings
iv. Corp. has abandoned business
c. Election to Purchase in Lieu of Dissolution—court-ordered buyout of objecting shareholder
d. Action by Creditors—corp. is insolvent and cannot pay acknowledged claim/judgment
(3) Winding-Up—written notice to known creditors >> publish notice in newspaper >> gather all assets >> convert assets to cash >> pay
creditors distribute remaining sums to shareholders, pro rata
Dissenting Shareholder: Right of Appraisal—s/h who voted against fundamental change can force corp. to buy their stock for fair value
(1) Exclusive remedy (s/h cannot otherwise sue)
(2) ONLY FOR—merging/consolidating, transferring substantially all assets, stock being acquired in share exchange, converting to another form
of business
(3) NOT FOR—amendment to articles, dissolution
To Perfect
(1) Before vote, file written notice of objection with corp.
(2) During vote, abstain or vote against
(3) After vote, make written demand on corp.
Market-Out Exception—NO appraisal right if:
(1) Stock listed on national exchange; OR
(2) $20+ million value of shares w/ 2,000+ shareholders (not including shares held by executives, directors, or s/s with 10%+ shares)
 FAMILY LAW SHORT SHEET
MARRIAGE & DIVORCE
Before Marriage
Breach of Promise to Marry—NOT ACTIONABLE
Pre-Marital Gifts—gifts conditional upon marriage (engagement ring) must be returned
Prenuptial Agreements—valid contract addressing rights of parties upon divorce/death
(1) Requirements:
a. Writing, signed
b. Enter into voluntarily (NO fraud, duress, etc.)
c. UPPA—If unconscionable full & fair disclosure of asset OR proof of independent knowledge
d. Some—fair & reasonable terms more likely to enforce if independent counsel
(2) Unconscionable
a. Unfair bargain that shocks the conscious; defending spouse didn't make asset disclosure: no waiver of asset disclosure; AND no
independent knowledge of assets by suing party
b. - OR-
c. Agreement provides so little in post-divorce support that it leaves other party on government support ("unforeseen and extreme
hardship")
(3) Child Custody/Support—NOT binding
(4) CAN Cover—disposition of property, making will or trust, choice of law, alimony (spousal support)
Marriage
Requirements to Marry:
(1) License
(2) Solemnization—ceremony w/ authorized officiant)
(3) Capacity—mental ability to consent + age of majority
a. 16-17 parental consent; under 16 judicial consent
(4) NO Marriage Limitations—MUST NOT be:
a. Too closely related (ascendants, descendants, siblings, aunts/uncles)
b. Legally married to someone else (bigamy)
Common Law Marriage—abolished in most requires:
(1) Consent to marry—capacity + no limitations
(2) Cohabitation
(3) Couple holds themselves out as spouses
Marriage by Estoppel/Putative Marriage—equitable remedy to protect innocent, good faith party that entered into invalid marriage
Obligation to Support Doctrine of Necessaries—spouse liable for other’s purchase of necessaries (food, clothing, shelter, health care)
Annulment—invalidates marriage due to impediment at time of entry marriage set aside as if it never existed
Void Marriage—failed to meet essential requirements for legal marriage invalid, utter nullity
(1) Bigamy; Consanguinity (incest)
(2) NO LEGAL ACTION required
(3) Subject to collateral attack by third-party
Voidable Marriage—event/condition affecting adequacy of consent valid, until declared null
(1) Non-Age; Mental Incapacity; Incurable Physical Impotence; Duress; Fraud
(2) CAN be remedied by cohabitation after removal of impediment
(3) NO collateral attacks
Divorce
Jurisdiction Residency Requirements
(1) Divorce—only 1 party must be domiciled
(2) Financial Issues—must have PJ over defendant
(3) Minimum residency period before action can be filed
No-Fault Divorce—divorce without marital fault, BUT requires either:
(1) Marriage irretrievably broken (both spouses agree)
(2) Living separate and apart for specified and continuous period
(3) Incompatible and can no longer be married (both spouses agree)
(4) DEFENSES—deny one of the above grounds
Fault Grounds
(1) Adultery—opportunity + inclination + corroboration
(2) Desertion—unjustified departure from marital home + no intent to return
(3) Extreme Cruelty—physical or mental
(4) Drug/Alcohol Addiction—voluntary & commencing after marriage
(5) Insanity
(6) DEFENSES:
a. Collusion—agreement to simulate grounds for divorce
 b. Connivance—consent to other spouse’s misconduct
c. Condonation—forgiveness of marital offense w/ full knowledge of wrongs sex between spouses required
d. Recrimination—both spouses guilty of marital fault
Legal Separation—same grounds as divorce; does not terminate marriage; final adjudication as to rights (property, support, custody)

PROPERTY DIVISION
Community Property—each spouse gets one-half of property acquired during marriage; separate property still separate
Equitable Distribution—separate property goes to respective spouse; “marital property” is equitably distributed
Separate Property—property owned before marriage, acquired by gift or inheritance, or resulting from personal damages or pain and suffering
award (including passive income and appreciation)
Marital Property—ALL OTHER property acquired during marriage (including earnings, employment benefits, pensions, stock options)
(1) Commingling—separate property inextricably intertwined with marital property
(2) Transmutation—separate property treated in way showing intent for property to be marital property
(3) Improvement/Appreciation—marital funds or effort of spouse still separate property, but appreciation is marital property (spouse entitled
to reimbursement)
(4) Professional License/Degree—(majority) not marital property; (some) alimony to compensate supporting spouse
Distribution—court discretion for equitable division FACTORS:
(1) Age and health of spouses
(2) Current income
(3) Earning potential and education
(4) Standard of living
(5) Duration of marriage
(6) Fault (either alimony or equitable distribution, not both)
(7) Amount of separate vs. marital property
Alimony—maintenance/spousal support; paid to economically dependent spouse
Factors—same as eq. dist. (discretion) Needs vs. Ability to pay
4 Types
(1) Permanent Periodic Payments
(2) Lump Sum—often present value of PPP
(3) Rehabilitative—to enable spouse to gain skills and become self-supporting (limited time)
(4) Reimbursement—for support when other spouse obtained professional license or degree
Modification—ONLY periodic or rehabilitative proof of substantial change in circumstances (voluntary reduction in income not sufficient)
Termination—remarriage/cohabitation of recipient, or death of either
CHILD ISSUES
Child Support—both parents equally share duty to support children, based on ability to pay and needs of child
Child Support Guidelines—# children + parents’ income (can deviate)
Independent of Visitation—CANNOT withhold visitation for failure to pay child support
Duration—until child reaches age of majority (18), emancipation, or termination of parental rights
Jurisdiction—Uniform Interstate Family Support Act (UIFSA)
(1) Orig. JDX—proper where first petition under UIFSA filed
(2) JDX to Enforce—issuing court, but another court if:
a. Direct Enforcement—mails order to out-of-state employer, automatically triggering withholding
b. Registration—issuing state sends order, registered and filed, subject to enforcement in that state
(3) JDX to Modify—issuing court continuing and exclusive JDX
Modification—based on substantial and continuing change of circumstances (not voluntary reduction of income)
(1) Past due support installments CANNOT be retroactively modified
Child Custody—physical & legal custody; Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) BEST INTEREST OF THE CHILD
Jurisdiction
(1) Initial JDX
a. Home State Jurisdiction—child’s home state (6 consecutive months immediately prior) OR was home state within past 6 months and
child now absent, but parent still lives in state
b. NO “Home State”—child and 1+ parent have significant connection with state AND substantial evidence about child available in state
(2) JDX to Modify—issuing court continuing and exclusive JDX, but another state if:
a. NO child or parent reside in issuing state; or
b. NO significant connection b/w child and issuing state and NO substantial evidence about matter in state either
c. Determined by issuing state
(3) Declining JDX—court may decline to exercise JDX if it determines it is an inconvenient forum OR party engaged in unjustifiable conduct
(4) Temporary Emergency JDX—abandonment or abuse
Best Interest of the Child FACTORS:
(1) Wishes of parents
(2) Child’s preference
a. Under 8 no considered
 b. Over 12 great weight
(3) Child’s relationship with parents, siblings, and others involved
(4) Child’s adjustment to home, school, community
(5) Parties’ mental and physical health
(6) Who has been primary caregiver
Joint Custody—encouraged and awarded if parties agree; NOT awarded if parents openly hostile or unable to communicate
Sole Custody—awarded to one parent if strong evidence of BIOTC; other parent gets reasonable visitation
Nonparent Custody—not awarded unless nonparent can show harm to child or parent is unfit (abandonment, neglect, abuse)
Visitation—absolute denial of parental visitation is rare; non-parental visitation granted by statute, based on BIOTC (prior relationship)
Modification—only if substantial and material change in circumstances BIOTC is determinative, overriding factor
Relocation—requires notice to other parent and court hearing allow relocation if BIOTC, move is to benefit family, and not intended to thwart
relationship with other parent

Parentage
Intermediate Scrutiny—distinctions between marital and nonmarital children
Maternity—child is lawful child of mother
Paternity—established by:
(1) Presumption—marriage to mother
(2) Holds child out as his own biological child
(3) Consents to be named on birth certificate
(4) Formally acknowledges paternity
(5) Court order
(6) SOL tolled during minority—limitations period at least 18 years
(7) Evidence—most use blood and tissue sampling, but testimonial and other medical evidence can be sufficient
Termination
(1) Voluntary Termination—may voluntarily relinquish
(2) Involuntary Termination—must have due process before GROUNDS (clear and convincing evidence):
a. Infliction of serious physical harm (including sexual)
b. Abandonment
c. Neglect (failure to meet minimum standard of care)
d. Failure to provide support (without justifiable cause)
e. Severe mental illness
f. Parental unfitness
Adoption—severs biological parents’ rights to and responsibilities for the child; creates new ones in adoptive parents (new birth certificate)
Termination of Biological Parents’ Rights—consent of biological parents required unless:
(1) Parental rights already terminated; or
(2) Consent unreasonably withheld against BIOTC
Creation of New Parental Rights—consent of adoptee (age 12+)
(1) Home Study, Investigation, Court Approval—required by most states (can be waived for relative adoptions)
(2) Payment of money prohibited (except medical costs)
Confidentiality: Sealed Records—most adoption cases are sealed
Assisted Reproduction
Surrogacy
(1) Genetic Surrogacy—woman not intended parent agrees to become pregnant through asst. rep. using own gametes
(2) Gestational Surrogacy—woman not intended parent agrees to become pregnant through asst. rep. NOT using her own gametes
Gestational Agreements—ONLY allowed for gestational surrogacy
(1) Requirements:
a. Writing, approved by court
b. Accompanied by home study (unless waived)
c. Voluntary
d. Provision for healthcare costs
e. Not limit surrogate’s right to make healthcare decisions
f. Reasonable consideration
(2) Can be terminated any time before embryo transfer
(3) Unenforceable gestational mother (regardless of biology)
(4) Enforceable intended parents (must file notice of birth and court will issue order of parentage
 SECURED TRANSACTIONS SHORT-SHEET
UCC ARTICLE 9
Scope—UCC Article 9 applies to any transaction, regardless of its form, that creates a security interest in personal property or fixtures by
contract **Substance over form**
Applicable Transactions
(1) Security interest in personal property/fixture
(2) Seller’s retention of title
(3) Agricultural liens
(4) Sales of accounts, chattel paper, payment intangibles, and promissory notes
(5) Consignments worth $1,000+ to merchants
(6) Secured sale disguised as lease:
a. Rental obligation not terminable by lessee; and
b. Lessee bound or has option to purchase OR lease term ≥ remaining economic life
Types of Collateral
Tangible Goods
(1) Consumer goods—personal, family, household
(2) Equipment—business
(3) Farm products—crops, livestock, supplies
(4) Inventory—held for sale/lease OR used/consumed in business in short period
Intangible/Semi-Tangible
(1) Instruments—right to be paid (promissory notes)
(2) Investment property—stocks, bonds, mutual funds
(3) Accounts—right to payment for goods/services (A/R)
(4) Deposit accounts—account maintained with bank
(5) Commercial torts claims
(6) General intangibles—any other personal property (IP)

ATTACHMENT
Attachment creates security interest—to be valid & enforceable, creditor MUST attach to collateral
3 Requirements for Attachment
(1) SECURITY AGREEMENT—record:
a. Showing intent to create security interest
b. Authenticated and signed by debtor
c. Reasonably identify collateral (no supergeneric descriptions)
(2) VALUE—any consideration (even past consideration)
a. Creditor gives $ to debtor
b. Debtor promises to repay creditor
(3) RIGHTS—debtor has rights in collateral
After-Acquired Property—must have explicit clause to attach
(1) Exceptions—rapidly depleted and replenished (accounts, inventory) or identifiable proceeds
(2) NOT Applicable—consumer goods (acquired 10+ days after) or commercial tort claims
Proceeds—auto. attach to value received upon sale, exchange, collection, disposition
(1) Identifiable—traced back original collateral
(2) Commingled cash proceeds Lowest balance between deposit and application
Supporting Obligations = guarantee = surety auto. attach to supporting obligation for particular collateral

PERFECTION
Perfection is about providing notice to the world of your security interest and establishing priority of other creditors
Methods of Perfection (Need 1)
Automatic Perfection
(1) PMSI in Consumer Goods—perfection upon attachment
(2) Limitations:
a. Motor Vehicles—novation on vehicles certificate of title by state
i. Exception—dealer inventory vehicles by filing financing statement
b. PMSI in Fixtures—fixture filing
Perfection by Possession
(1) Continued as long as possession retained
(2) NOT applicable to intangibles
(3) Money—perfection only by possession
Perfection by Control
(1) Deposit accounts—perfection only by control
a. Bank which maintains account
b. Account in secured party’s name
c. Authenticated record that bank will comply with secured party’s orders regarding account
Perfection by Filing—Financing Statement
(1) MUST contain:
a. Debtor’s name and address
i. Seriously misleading error invalidate
ii. Filing office error no effect
iii. Name change 4-months to refile
b. Creditor’s name and address
i. Error no effect
c. Description of collateral
i. Must reasonably identify
ii. Need not mention after-acquired property
iii. Can contain supergeneric description (“all assets”)
(2) Debtor must authorize filing with SoS:
a. Authenticated financing statement or security agreement automatic authorization
b. Signed security agreement ipso facto auth.
(3) Place of filing:
a. “Centrally” in SoS office of debtor’s domicile
b. Exception—if real property-related collateral (resources, fixtures) county where mortgage on real estate is filed
(4) Continuation statements—extends financing statement for another 5 years
a. Financing statement valid for 5 years
b. Filed only in final 6 months before lapse
c. Creditor authorization allowed
Temporary Perfection—Proceeds
(1) Perfected security interest in collateral Automatic perfected security interest in proceeds for 20 days
(2) Perfection continues beyond 20 days if either:
a. Identifiable cash proceeds;
b. Would be filed in same place (all personal property filed with SoS); or
c. Perfected within 20 day
Fixtures & Accessions—generally same rules, but some quirks:
(1) Construction mortgage priority over subsequent PMSI
(2) Vehicles—SI in accession < SI in whole
Change in Use of Collateral—perfection remains effective

PRIORITY
General Priority Hierarchy
(1) Buyer in Ordinary Course (BIOC)
(2) Purchase Money Security Interest (PMSI)
(3) Perfected Attached Creditor (PAC)
(4) Lien Creditor (LC)
(5) Buyer Outside Ordinary Course (BOOC)
(6) Unperfected Attached Creditor (UAC)
(7) Unsecured Creditor (UC)
(8) Debtor
Secured vs. Secured (Perfected & Unperfected)
Perfected Secured vs. Perfected Secured first to file OR perfect
Unperfected Secured vs. Unperfected Secured first to attach
Perfected Secured vs. Unperfected Secured perfected
PMSI vs. Perfected/Unperfected Secured PMSI, if perfected
(1) PMSI in consumer goods auto. perfect upon attachment
(2) Consignor for consigned goods = PMSI in inventory
PMSI vs. PMSI seller-financed > financer-financed
(1) Investment Property
a. Control > other perfection method
b. Earlier control > later control
c. Debtor’s securities intermediary > other creditors
d. Otherwise, first to file or perfect
(2) Deposit Accounts
a. Only can perfect by control
 i. Earlier control > later control
b. Best Co-owner (account in secured party’s name)
c. Second Best Bank maintains deposit account
d. Third Best Control agreement
(3) Debtor transfers money person takes free of any security interest (unless collusion)
Secured vs. Buyer of Goods
Person buys/leases item with security interest on it security interest generally stays on item
Buyer in Ordinary Course takes free of security interest
(1) BIOC = person who buys goods:
a. In good faith,
b. Without knowledge of SI,
c. In the ordinary course of business from a merchant
(2) SI must be created by buyer’s seller (not some previous debtor)
(3) NOT in ordinary course takes subject to perfected SI, but free of unperfected SI if unknown
Consumer-to-Consumer takes consumers goods free of security interest if buyer buys:
(1) Without knowledge of SI,
(2) For value,
(3) Consumer goods in hands of BOTH buyer and seller (personal, family, household purpose), and
(4) Before filing of statement covering goods
Secured v. Lien
Secured vs. Judicial Lien first to perfect/levy
(1) PMSI Exception—PMSI perfected within 20 days of receiving collateral has priority over judgment lien arising in that time
(2) Future Advances Exception—perfected future advance has priority over judgment lien if made:
a. Without knowledge if lien, or
b. Within 45 days of lien arising
Secured vs. Possessory (Statutory) Lien lien has priority if:
(1) Goods/services provided in ordinary course of business; and
(2) Lienholder maintains possession of collateral

DEFAULT
Self-Help Possession—after default, secured party MAY take possession of collateral or render equipment unusable without judicial process, IF
without breach of peace
(1) “Breach of peace” = any conduct with potential to lead to violence = physical presence + verbal objection
a. Unauthorized entry into home likely BoP
b. Commercial premises not likely BoP
(2) Collateral is account upon notice, account debtor must make payment to secured party rather than debtor
Judicial Process Possession—secured party may get judicial order for sheriff to obtain possession of collateral (replevin action)
Strict Foreclosure—after default and repossession, secured party may retain collateral to satisfy debt (instead of selling) IF:
Notice—of proposal to retain collateral sent to:
(1) Any other secured party with notice of claim or perfected security interest
(2) If notified party objects within 20 days strict foreclosure not allowed, collateral must be sold
Debtor’s Consent—obtained either by:
(1) Authenticated record after default, or
(2) No authenticated objection within 20 days of notice
Resale (Foreclosure Sale)—discharges foreclosing lien and junior liens, but senior liens remain
Notice
(1) Reasonable, authenticated notice to:
a. Debtor + any secondary obligor
b. NOT required for collateral:
i. Perishable
ii. Threatens to decline rapidly in value, or
iii. Ordinarily sold in recognized market
(2) Reasonable time before sale
a. Non-consumer transactions 10+ days
(3) Contents of notice depend on type of sale and collateral
a. Public Sale notice of time and place
b. Private Sale notice of time after which sale will occur
c. Consumer Goods extra info. required
Commercially Reasonable—every aspect of sale (method, manner, time, place, terms) must be commercially reasonable
(1) Sufficient advertising
(2) Contacting people in limited market
(3) Cleaning or repair of collateral (if needed)
(4) Convenience of time and place of public auction
Proceeds of Sale—paid in following order:
(1) Costs or repossession/sale
(2) Foreclosing creditor
(3) Junior creditors
(4) Surplus to debtor
Deficiency Judgment—if sale does not cover costs and secured party’s debt secured party may recover deficiency from debtor
Secured Party’s Failure to Comply with Rules—secured party liable to debtor for:
Actual Damages—failure to comply with any rule
Minimum for Consumer Goods—10% cash price + all interest
Loss of Deficiency Judgment—failure to comply with rules on default rebuttable presumption: sale proceeds = debt amount (no deficiency
judgment)
Debtor’s Right to Redeem—debtor’s ability to recover collateral any time before foreclosure by paying entire obligation owed to creditor +
reasonable expenses
 TRUSTS SHORT SHEET
TRUSTS OVERVIEW
Splitting Ownership
Legal Interest Trustee (control; no benefits)
Equitable Interest Beneficiary (benefits; no control)
Settlor—creates trust and supplies initial trust property (corpus)
Classifications of Trusts
Express Trusts—created by express intention of settlor:
(1) Private beneficiaries
(2) Charitable beneficiaries
Trusts Created by Law
(1) Resulting Trusts—arise from presumed intent
(2) Constructive Trusts—equitable remedy to prevent unjust enrichment

TRUST VALIDITY
5 Elements of Valid Trust
(1) Intent
(2) Identifiable Corpus
(3) Ascertainable Beneficiaries
(4) Proper Purpose
(5) Mechanics/Formalities
Intent—present intent to create trust
(1) Intent to split legal and equitable title and for trust to take immediate effect (not future trust)
(2) NO formal words required—but more than mere precatory language (hope, wish, suggest)
(3) Communication to beneficiary NOT required
(4) Cannot change character of completed gift
Identifiable Corpus—trust property ascertainable with certainty
(1) Sufficient Trust Property—any property settlor can then-transfer
a. Existing interest (including future), in existing property
(2) Insufficient Trust Property—property settlor cannot then-transfer or does not yet own
(3) Trust res must be identifiable & segregated from other property
Ascertainable Beneficiaries—any person capable of taking and holding title, ascertainable at time of benefit all trusts (except charitable)
(1) Capacity—need NOT be competent
(2) Direct Beneficiaries (only)—must directly benefit
a. NO indirect or incidental beneficiaries
(3) Notice to beneficiary NOT required
(4) Acceptance by beneficiary required—express or implied; presumed
(5) Disclaimer—may disclaim by written instrument to trustee
a. Timing—within 9 months of creation or 21st birthday
b. Estoppel—estopped from disclaiming if exercised dominion/control or accepted benefits
c. Creditors—disclaimer relates back to date of transfer for all purposes, and can be used to defeat creditors’ claims
(6) Divorce—revokes ex-spouse’s trustee or beneficiary status
(7) Class Gifts—may be unascertainable at trust creation so long as ascertainable at time of benefit
a. Must be able to determine who belongs to class
b. May give trustee discretion in selecting class members
c. May provide certain requirements for class membership
(8) Resulting Trust (Remedy)—trust fails for lack of beneficiary property reverts back to settlor (or successors)
Proper Purpose—any purpose Except:
(1) Illegal
(2) Contrary to public policy (induce criminal/tortious acts, immorality, neglect parental, familial, or civic duties)
(3) Impossible to achieve
(4) Intended to defraud or based on illegal consideration
Mechanics/Formalities—creation of trust by:
(1) Inter Vivos Trust
a. Declaration—settlor = trustee
i. Settlor keeps legal title; must transfer equitable title
b. Transfer/Conveyance—settlor ≠ trustee
i. Settlor transfers legal title to another as trustee
ii. Settlor may retain or transfer equitable title
c. Statute of Frauds
i. Personal property trust writing NOT required
 ii. Land trust writing required
iii. Part performance precludes SOF defense
(2) Pour-Over Trust—pour-over property can be initial trust funding if:
a. Trust identified in will; AND
b. Trust executed before testator’s death
(3) Testamentary Trust—trusts created in settlor’s valid will
a. “Secret” Trust Constructive trust imposed
i. Will does not state trust nature of gift, but beneficiary promised to hold property in trust for someone else
b. “Semi-Secret” Trust Resulting trust implied
i. Will makes gift in trust, but fails to name beneficiary
Trustee—validly created trust will NOT fail because trustee dies, refuses to accept, or resigns court will appoint trustee (unless settlor intended
otherwise)
Capacity—anyone with capacity to acquire/hold for own benefit and administer property may be trustee
Acceptance—person accepts trusteeship by:
(1) Signing trust or separate written acceptance;
(2) Substantially complying with terms in trust instrument; OR
(3) Implicit acceptance
a. Accepting delivery of trust property
b. Exercising powers/performing duties as trustee
(4) Presumed rejected if not accepted within reasonable time
(5) Trustee need NOT accept—can refuse/disclaim/resign
Intent—settlor must intend to impose enforceable duties on trustee
Compensation/Reimbursement—trustee entitled to reasonable compensation OR compensation specified in trust instrument; AND
reimbursement for expenses incurred in administration
Removal—grounds for removal of trustee (upon request or sua sponte)
(1) Serious breach of trust
(2) Serious lack of cooperation among co-trustees
(3) Unfitness, unwillingness, or persistent failure to administer; or
(4) Substantial change in circumstances
(5) Basic factor—whether continuation in office would be detrimental to trust

TRANSFER OF BENEFICIARY’S INTEREST

Freely Transferable—presumed
Voluntary Transfers (Gifts/Sales)—interest transferable, unless trust provides otherwise
Involuntary Transfers (Creditors)—creditors may reach interest, unless trust or statute provide otherwise
Discretionary Trusts—trustee discretion for if, when, and how much beneficiary receives
Creditors—generally, interest cannot be assigned or reached
(1) Exception—child or spousal support
Beneficiary—no enforceable right to payment against trustee
Spendthrift Trusts—precludes beneficiary from transferring, and creditors from reaching, beneficiary’s interest
Self-Settled—settlor cannot use spendthrift trust to protect their own property from their own creditors
(1) BUT, states now allowing Domestic Asset Protection Trust
Ineffective Against—child or spousal support/maintenance, government claims
Support Trusts—only pays what is necessary for beneficiary’s support
(1) Health, education, maintenance, support
(2) Mandatory or discretionary
(3) Interest NOT assignable—support trust = impliedly spendthrift
(4) If silent maintain accustomed standard of living

MODIFICATION & TERMINATION OF TRUSTS

By Terms of Trust—trust terminates automatically upon expiration of express term in trust
By Settlor—settlor can revoke/amend trust unless expressly irrevocable
By Beneficiaries—B’s may terminate/modify IF:
(1) Settlor + all B’s consent; OR
(2) All B’s consent + material purpose of trust not frustrated (Claflin)
By Operation of Law—trust will terminate IF:
(1) Property has been exhausted; OR
(2) Legal and equitable titles merged
By Court—court may terminate trust if:
(1) Unanticipated circumstances threat purpose of trust;
(2) Continuation is impracticable or wasteful; or
(3) Value of trust insufficient to justify cost or achieve objectives
By Trustee
(1) Uneconomic Trust (some states)—trustee can terminate trust if value < $50,000 AND amount insufficient to justify cost must provide
notice to beneficiaries
(2) Combination and Division—trustee can combine several trusts into one OR divide one trust into several IF:
a. Does not frustrate any purpose of trust
b. Does not impair rights of any beneficiary
c. Trust does not otherwise prohibit
Duty of Trustee Upon Termination—trustee must:
(1) Wind up trust affairs by exercising powers for reasonable amount of time necessary
(2) Distribute trust property to remainder beneficiaries

TRUST ADMINISTRATION
Trustee’s Powers—express powers (terms of trust, statute, court) implied powers (necessary and appropriate to achieve trust purposes)
(1) Mandatory vs. Discretionary
Trustee’s Duties
Duty to Administer Trust (Duty of Care)—personally administer trust in good faith and prudent manner
(1) Special skills or expertise higher standard
Duty of Loyalty—avoid self-dealing; act exclusively for beneficiaries
(1) Trustee CANNOT—buy/sell trust assets, borrow trust funds, etc.
(2) Act impartially towards all beneficiaries
(3) Self-dealing transaction voidable by beneficiary, unless:
a. Court of trust terms approve it;
b. Beneficiary failed to sue within prescribed time period;
c. Beneficiary gave consent, ratification, or release; or
d. Involves contract/claim arising pre-trustee position
Duty to Report—trustee’s name/address/phone, beneficiary requests for information, annual accounting of trust
Duty to Separate Trust Property & Keep Records—NO commingling
(1) May not commingle trust property with own property
(2) Must earmark trust property by labeling it as such
(3) Remedy—losses charged to trustee; gains credited to trust
Trustee’s Investment Duties—Uniform Prudent Investor Act
Prudent Investor Rule—trustee must invest in same manner as prudent investor must exercise reasonable care, skill, and caution when
investing/managing trust assets
(1) ANY type of investment is permitted
Portfolio Approach—view investments together in context of entire trust portfolio, part of overall investment strategy (not individually)
(1) Some speculation may be appropriate or even required
Diversification—trustee must diversify trust investments
Review Trust Property—when trustee’s assumes position, must review trust assets to bring them into compliance with prudent investor rule
Factors—(1) trust purposes; (2) economic conditions; (3) tax consequences; (4) role within overall trust portfolio; (5) expected
income/appreciation; (6) beneficiaries’ other resources; (7) need for liquidity, regularity of income, preservation/appreciation of capital;
(8) asset’s special value to purposes of trust or 1+ beneficiaries
Social Investing—problematic if returns from “politically correct” investments are lower than non-PC investments
Delegation—trustee may delegate investment/management functions ONLY IF prudent trustee of comparable kills could properly delegate
(1) Must act prudently in: selecting agent; establishing scope/terms of delegation; and periodically reviewing agent’s actions
Trustee Liability to Beneficiaries
Money Damages—trustee personally liable for greater of:
(1) Amount necessary to restore property and distributions; OR
(2) Trustee’s profit
Self-Dealing Remedies—beneficiary’s choice:
(1) Affirm transaction (trust profited)
(2) Set aside transaction (trust losses)
(3) Trace profits (trustee profited)
Removal of Trustee—grounds for removal (request or sua sponte) incapacity; unfit; serious breach of duty; serious conflict of interest;
insolvency; extreme hostility; refusal to post required bond; refusal to account; lack of cooperation; failure to administer; substantial change of
circumstances
Trustee Liability to Third Parties—trust itself cannot be sued; can only sue trustee (personally or in fiduciary capacity)
Contracts—personally liable only if did not reveal fiduciary relationship; otherwise, entitled to indemnification/reimbursement from trust
Torts—personally liable only if personally at fault
CHARITABLE TRUSTS
Charitable Trusts—same rules as private trusts EXCEPT:
(1) Must have indefinite beneficiaries—need NOT be ascertainable
(2) May be perpetual—not bound by RAP
(3) Cy Pres Doctrine
Charitable Purposes—purpose to benefit the public:
(1) Relief of poverty
(2) Advancement of education or religion
(3) Promotion of health
(4) Government purposes (parks, museums, playgrounds)
(5) Express or implied (settlor’s charitable purpose is clear)
(6) Benefit large enough class (can be limited, but not just family)
Cy Pres Doctrine—if charitable purpose cannot be carried out (impracticable, illegal, impossible, wasteful) court may select alternative
charitable purpose
Settlor’s Primary Purpose—court has discretion to determine
(1) Settlor’s general charitable intent court MUST apply cy pres doctrine and reform trust

RESULTING TRUSTS
Resulting Trusts—arise by implication from settlor’s conduct
Purpose—do what settlor would have done
Beneficiaries—settlor (or successors)
Purchase Money Resulting Trusts—beneficiary furnishes consideration for purchase of property, but trustee takes title rebuttable
presumption of resulting trust
Exceptions
(1) Parties closely related Gift (not trust)
(2) Unlawful purpose
(3) Transferee obtained title wrongfully
Failed Express Trust—express trust void/unenforceable OR beneficiary is dead/cannot be located
Excess Corpus—trust purpose fully satisfied, trust property remains

CONSTRUCTIVE TRUSTS
Constructive Trust—NOT ACTUAL TRUST equitable remedy to prevent unjust enrichment
Requirements
(1) Requested—NOT automatic; clear and convincing evidence
(2) Identification of particular property as corpus
Duty to Convey—constructive trustee’s only duty is to convey property to person who would have owned, but for the wrongful conduct
Grounds to Impose—wrongful conduct (NOT full list; court discretion)
(1) Fraud, duress, undue influence
(2) Theft, conversion
(3) Breach of fiduciary duty
(4) Homicide
(5) Breach of promise—only if:
a. Fraudulent promise
b. Abuse of confidential relationship
c. By devisee, heir, or decedent
 WILLS SHORT SHEET
NONPROBATE PROPERTY (WILL SUBSTITUTES)
Inter vivos gifts and trusts; joint tenancies or tenancies by the entirety; bank account trusts; life insurance; deeds; contracts

INTESTATE SUCCESSION
State Law
(1) Personal Property—decedent’s domicile at death
(2) Real Property—situs (location) of property
Surviving Spouse Share
(1) Common Law spouse NOT heir
(2) Modern spouse IS heir
Method of Computing Descendants’ Shares
Per Stirpes—divide shares equally at first generation below decedent (regardless of survivors)
Per Capita w/ Representation—divide shares at first generation with surviving member
Per Capita at Each Generation—divide shares at first generation with surviving member, then pool deceased persons’ shares and divide equally
at next lower level with surviving members
No Descendants—ancestors (parents) and collaterals (siblings, uncles, aunts) in following order: Parents >> Siblings (and their descendants) >>
1/2 to each set of grandparents >> 1/2 to nearest kin on each side >> Escheats to state
Special Children
Adopted Children—same as biological children of adoptive parents
Stepchildren—NO inheritance rights (unless adopted)
(1) Adoption by Estoppel—child may inherit through step- or foster-parent if failed agreement to adopt them
Non-Marital Children—always inherit from mother; inherit from father if paternity established (or married mother after birth)
Half-Siblings—no distinction and inherit equally (majority); OR half-shares or cut them out entirely
Posthumous Child—inherit if in gestation at time of intestate’s death (majority); some states give period of time post death
Disinheritance Clauses
(1) Common Law (Majority)—disinheritance clause ineffective to property passing by intestacy
(2) UPC—testator may exclude prohibit individual from receiving property passing by intestacy
Advancement—lifetime gift intended as prepayment of intestate share; presumptively not advancement unless intent shown by writing
advancement goes back into estate (hotchpot) and subtracted from recipient’s share
Simultaneous Death (Survival)—to take by will or intestacy, person must survive decedent (usually 120 hours)
Disclaimers—heir/beneficiary can disclaim interest in writing, signed by disclaimant, notarized, timely filed (w/in 9 months of death); cannot
disclaim if accepted any property or benefits
Slayer Statutes—person who feloniously & intentionally kills decedent forfeits any interest in decedent’s estate

VALID EXECUTION OF WILLS

Applicable Law
(1) Personal Property—testator domicile at death
(2) Real Property—law of situs
(3) Foreign Will (Savings Statute)—will valid if executed in accordance with law of: that state; state where executed; testator’s domicile at
execution; or testator’s domicile at death
Compliance with Requirements
Majority—STRICT compliance with all requirements for will to be valid
UPC—substantial compliance; minor errors excused; testator intent
Requirements of Valid Will
Legal Capacity—18 years or older and of sound mind
Testamentary Capacity—understand nature of act; understand nature and extent of property; recognize natural objects of their bounty (family
members) all simultaneously
Testamentary Intent—present intent for instrument to operate as will (parol evidence admissible to negate)
Formalities—vary by state, but majority:
(1) In Writing
(2) Signed by Testator/Proxy
a. If proxy at direction, and in presence of testator
(3) Attested by 2 Competent Witnesses
a. Competent = capacity to testify + minimum age (some)
b. Interested Witness—will is valid, but bequest void unless supernumerary or would have taken under intestacy
(4) Signed/Acknowledged in Presence of—testator and witnesses must sign in the presence of each other
a. Conscious Presence Test (Majority)—signing took place within general awareness and cognizance of other parties
b. Scope of Vision Test (Minority)—such close proximity they could have seen the signing had they looked
(5) Attestation Clause—not required, but acts as prima facie evidence of formalities being met
(6) Self-Proving Affidavit—testator and witnesses swear under oath that will was validly executed (probate faster and cheaper)
(7) Some States:
a. Testator must sign at end of will
b. Testator must publish will
c. Witnesses must sign in presence of each other
(8) UPC—will valid if either: attested by 2 competent witnesses OR signed by notary
Holographic Wills—will in testator’s handwriting and no attesting witnesses material portions must be in testator’s handwriting

CHANGES IN PROPERTY AFTER WILL EXECUTION

Classification of Gifts
Devise—real property
Bequest—personal property
Legacy—personal property not sufficiently described (money)
(1) General Legacy—payable out of general estate asset
(2) Demonstrative Legacy—payable out of specific source or fund
Residuary—remainder of estate
Ademption of Specific Gifts
By Extinction—property no longer in estate at time of death
(1) Identity Approach (Majority)—gift fails (bequest adeemed) beneficiary takes NOTHING
(2) Exceptions
a. Replacement Property—if testator intent to replace
b. Balance of Purchase Price—testator sold gift, and purchaser still owes money
c. Condemnation/Insurance Proceeds—if paid after death
d. Sale by Guardian/Conservator Proceeds—if traceable
By Satisfaction—gift satisfied by inter vivos transfer, if testator intent
(1) Majority—requires writing or specific instrument before gift deemed satisfaction
(2) No writing required for specifically described property
Changes in Property’s Value
Specific Gifts—change in value irrelevant (income to estate; improvements to specific devisee)
Securities—beneficiary receives increased shares from stock split/stock dividend (beneficiary does not take newly purchased shares)
Abatement—reducing testamentary gifts where estate assets not sufficient to satisfy all claims/gifts ORDER (if silent): intestacy >> residuary >>
general legacies >> demonstrative legacies >> specific bequests/devises >> Spousal share
(1) Abatement is pro rata within each class

CHANGES TO BENEFICIARIES AFTER WILL EXECUTION

Lapse—gift lapses if beneficiary predeceases testator
Distribution of Lapsed Gifts—express terms of will >> anti-lapse statute or cy pres >> residuary clause >> intestacy
Anti-Lapse Statutes—if related, gift is saved and goes to predeceased beneficiary’s descendants (if any)
(1) Unless contrary language in will—words of survivorship (“To A, if A survives me”)
Lapse in Residuary—will devises residuary estate to 2+ beneficiaries and 1 predeceases testator
(1) Common Law—deceased beneficiary’s share passes by intestacy
(2) Modern/Majority—surviving residuary beneficiaries divide deceased beneficiary’s share amongst themselves pro rata

WILL INTERPRETATION & CONSTRUCTION

Basic Rules of Construction
(1) Fact testator left a will = intent to not die intestate
(2) Will is construed as a whole
(3) Contradictory provisions last in time prevails
(4) Words given ordinary meaning, and technical words given technical meaning
(5) Effect given to all words testator included in will
Ambiguity
Patent (Obvious) Ambiguity—ambiguous on its face
(1) Traditional—extrinsic evidence NOT admissible
(2) Modern—extrinsic evidence to resolve (NOT fill in blanks)
Latent (Hidden) Ambiguity—clear on its face, but cannot be carried out as written extrinsic evidence to resolve
No Apparent Ambiguity (Mistake)—clear on its face and can be carried out as written, but beneficiary thinks testator made mistake
(1) Traditional: Plain Meaning Rule—extrinsic evidence NOT admissible to disturb plain meaning of will
(2) Modern Rule—extrinsic evidence admissible
Incorporation by Reference—extraneous document explicitly referenced in validly executed will treated as if written in will; formalities need not
be met Requirements:
(1) Intent to incorporate (manifested by will)
(2) Document in existence at execution of will
(3) Document sufficiently described in will reasonably identifiable
Conditional Wills—operative only upon occurrence of certain event presumption against, and courts will construe as general wills
Codicils—amendment to previously executed will; must be made with same formalities as will
Republication by Codicil—republishes parts of will not inconsistent with codicil (even if original will invalid) treated as one instrument effective
from codicil’s date of execution
Pour-Over Provision—gifts to inter vivos trusts
(1) Trust may be created before or after execution of will
(2) Pour-over gift can be initial funding of trust
Contractual Wills—to make, not make, or not revoke a will is valid consideration for a contract (modern law requires writing)
Powers of Appointment—donor transfers power to appoint new owner of property
General POA—exercisable in favor of anyone (including donee himself)
Special POA—exercisable in favor of limited class of appointees (does not include donee himself)
Presently Exercisable POA—exercisable by donee during lifetime
Testamentary POA—exercisable only by donee’s will
Donee’s Creditors—cannot reach until donee exercises POA/appoints
Exercise of POA
(1) Majority—residuary clause itself does NOT exercise any POA held by testator
(2) Minority—residuary clause itself exercises general, not special POA
(3) Exercise by Implication—donee purports to dispose of property subject to POA as though it were donee’s own

REVOCATION OF WILLS
Marriage—(Majority) no effect on earlier will; (UPC/Minority) new spouse takes spousal share
Divorce—(Majority) revokes all provision in favor of ex-spouse; (UPC/Minority) extends revocation to ex-spouse’s relatives
Pretermitted Children
(1) Majority—force share if born after will execution
(2) Minority—forced share even if born before will execution
Physical Act—intent to revoke + physical act (burning, tearing, canceling, obliterating material portion)
Written Instrument—revoked by subsequent instrument executed with same formalities
Express Revocation—expressly revokes prior will
Revocation by Inconsistency—disposes of testator’s property
Presumptions
No Revocation—will found in normal location and no suspicious circumstances
Revocation—will last seen in testator’s possession, but cannot be found after death or is mutilated/destroyed
(1) Rebutting Presumption—will admitted if proponent proves:
a. Valid execution;
b. Cause of nonproduction (proof will not revoked); AND
c. Contents of will (testimony of 2+ witnesses or carbon photocopy)
Revival—whether revocation of will that revokes prior will revives such prior will varies by jurisdiction:
UPC Look to testator’s intent
Automatic Revival revoking will never took effect because revoked
No Revival revocation by subsequent writing takes immediate effect when signed (revival requires re-execution with formalities)
Conditional Revocation—may be express or implied (Dependent Relative Revocation) DRR applies when testator revokes will under mistaken
belief prior will would become effective and, but for this mistaken belief, would not have revoked Ask whether testator would have preferred
Will 1 over intestacy?
(1) More similar = more likely court gives effect to Will 1

WILL CONTESTS
Standing—only interested parties may contest a will
Grounds to Contest
Defective Execution—fails to meet all requirements
Lack of Testamentary Capacity
(1) Insane Delusion—belief in facts that do not exist (no rational person could believe) destroys capacity only if nexus between delusion and
property disposition
Lack of Testamentary Intent
Undue Influence—influence existed and was asserted + overpower testator’s mind/free will + Causation
(1) Nonconclusive Factors—unnatural dispositions, opportunity to exert, confidential fiduciary relationship, ability of testator to resist,
beneficiary involvement in drafting/execution of will
(2) Presumption of undue influence confidential relationship AND beneficiary involved in drafting/execution of will
(3) Attorney is drafter & beneficiary gift void unless testator and attorney closely related
Duress—undue influence through violent conduct (or threat of)
Fraud—elements:
(1) False representation;
(2) Knowledge of falsity by fraudster;
(3) Testator reasonably believed;
(4) Caused testator to make disposition; AND
(5) Would not have made but for fraudulent misrepresentation
Mistake
(1) Mistake in Factum—error regarding identity or contents of instrument
(2) Mistake in Inducement—error as to extrinsic fact and makes will based on erroneous fact NO RELIEF (generally)
Revocation
No-Contest (In Terrorem) Clauses—provision that beneficiary forfeits interest if they contest will and lose
(1) Majority—good faith + probable cause to contest no forfeiture
(2) Minority—no-contest clause given full effect
 CIV PRO SHORT SHEET
FORUM SELECTION
Personal Jurisdiction—court’s power over the parties MUST satisfy: state statue (it will) + Constitution (due process)—such minimum contacts
with the forum so jurisdiction does not offend notions of fair play and substantial justice:
CONTACT—min. contacts between D & forum Purposeful Availment (voluntary act) + Foreseeability (of being sued there)
(1) D’s physical presence in state is sufficient (tag jdx), but not necessary (marketing, domicile, interactive website, etc.)
RELATEDNESS—P’s claim arise from/relate to D’s contact with forum?
(1) Yes Specific PJ
(2) No General PJ—D must be at home in forum (or tag jdx)
a. Person Domicile
i. Retained until changed
ii. physical presence + intent to remain indefinitely
b. Corporation Incorporated (any state) or PPB (one state)
i. PPB = direct, coordinate, control business activities; corporate headquarters (usually); “nerve center”
FAIRNESS—ONLY IF Specific PJ Fairness Factors—burden on D and witnesses; State’s interest; P’s interest
Subject Matter Jurisdiction—court’s power over the case State courts—general SMJ (except patents, bankruptcy, fed. securities, antirust);
Federal Courts = Federal Question or Diversity
Federal Question (FQ)—“well-pleaded complaint” P’s claim must arise under federal law (“well-pleaded complaint”)
Diversity of Citizenship—complete diversity of citizenship + amount in controversy > $75,000
(1) Complete Diversity—NO P is citizen of same state as ANY D (determined at time case is filed)
a. Natural Person Domicile
b. Corporation Incorporated (any state) or PPB (one state)
c. Unincorporated Assoc. citizenship of all its members
d. Class Action citizenship of named representative(s)
(2) Amount in Controversy—P’s claim must > $75,000
a. Whatever P claims in good faith, unless clear to legal certainty P cannot recover
b. Aggregation—single P may aggregate all her claims against single D (claims need not be related)
c. Joint Claims—joint liability against multiple Ds total value
d. Equitable Relief—value to P > $75K? cost to D > $75K?
(3) NEVER Diversity Jdx—divorce, alimony, child custody, probate
Removal—D may remove from state to federal court if case could have been filed in federal court (SMJ)
(1) MUST file notice of removal in federal court within 30 days of first paper showing removability (and promptly provide copy to adverse party
and state court)
(2) ONLY D; NEVER P
(3) CANNOT REMOVE: (i) any D is citizen of forum; or (ii) over 1 year after case filed in state court
(4) Removal Venue venue in which the state courts sits (doesn’t matter if venue proper)
(5) Remand—P can remand within 30 days of notice of removal if removal improper; anytime if lack of PJ
Supplemental Jurisdiction—case already in federal court (FQ/Diversity) + common nucleus of operative fact
(1) CNOF any overlapping fact (T/O sufficient, but not necessary)
(2) Limitation—NO supp. jdx for Ps in diversity cases UNLESS:
a. Exception to Limitation—multiple Ps and lack of SMJ due to failure to meet amount in controversy requirement
(3) Court discretion even if factors met

Erie Doctrine—Federal court on diversity jdx choice of law:

Procedural always Federal law
Substantive
(1) Fed law on point directly conflicts with state law Federal law
(2) No Fed law + “clearly substantive” state law
a. 5 “clearly substantive” issues (apply state law):
i. Conflict (choice) of law rules
ii. Elements of claim/defense
iii. Statute of limitations (and tolling)
iv. Standard for new trial for excessive/inadequate jury damages award
(3) NO Fed law, NOT “clearly substantive balancing test:
a. Outcome Determinative—applying/ignoring state law would affect outcome probably substantive state law
b. Avoid Forum Shopping—ignoring state law will cause parties to flock to Fed court apply state law
c. Balance of Interests—system (Fed vs. state) with stronger interest in having its rule applied apply that law
(4) No role for state law—international relations, admiralty law, disputes between states, preclusion (claim, issue), right to sue Fed officer
Federal law
Venue—P may law venue in any district: (i) all Ds reside; OR (ii) substantial part of claim arose
(1) All Ds reside in same state, but different districts venue proper in any district in that state
(2) D resides outside U.S. venue proper in any Fed district
Transfer Proper Venue—allowed based on convenience of parties and witnesses and in interests of justice public/private factors to determine
whether court is center of gravity of case
(1) Choice of law rules transferor court’s
(2) Forum selection clause enforced if not unreasonable (transferee court applies own choice of law rules)
Transfer Improper Venue—allowed if in interest of justice, or dismiss
(1) Choice of law rules transferee court’s
Forum Non Conveniens—court in different judicial system is center of gravity for case court invoking FNC will stay or dismiss case (for P to
then sue in other court)

SERVICE OF PROCESS
Notice/Service of Process—D is entitled to notice of suit Summons + Copy of Complaint = “process”
WHO Can Serve—any nonparty 18+yo
WHEN Must Process Be Served—must be within 90 days of filing complaint (if D served in U.S.)
HOW Can Process Be Served
Individual in U.S.
(1) Personal Service—process given to D personally anywhere
(2) Substituted Service—service at D’s usual place of abode to someone of suitable age and discretion who resides there
(3) Service on Agent—service to D’s agent if within scope of agency
(4) State Law Methods—state where federal court sits OR where service is made
Business in U.S.
(1) Service on Officer/Manager/Agent
(2) State Law Methods—state where federal court sits OR where service is made
Minor/Incomp. in U.S.—ONLY by method of state service is made in
Parties in Foreign Country—method allowed by international agreement, OR , if no agreement: method reasonably calculated to give notice (as
directed by U.S. court, method under foreign country’s law, personal service in foreign country)
Waiver of Service of Process—after P mails notice and waiver request, D must execute and send back within 30 days (60 days if outside U.S.)
(1) Failure to waive w/o good cause D must pay cost of service
Immunity—CANNOT be personally served with process for civil case if in state to appear as party, witness, or attorney in different civil case

PLEADINGS
Complaint—(commences action) must contain: grounds for SMJ + short and plain statement of claim showing P entitled to relief + demand for
relief sought
Defendant’s Response—response by motion/answer within 21 days of service of process (60 days if waived; 90 days if outside U.S.)
Motions
(1) 12(b) Defenses
a. Waived if not in first motion/answer—lack of PJ, improper venue, improper process and/or service
b. NOT waived—lack of SMJ, failure to state a claim, failure to join indispensable party
(2) Issues of Form
a. 12(e) Motion for More Definite Statement—complaint so vague or ambiguous D simply cannot respond (must make before
answering)
b. 12(f) Motion to Strike—asks to remove redundant or immaterial things from pleading
(3) Denial of Rule 12 Motion D must answer within 14 days
Answer—respond to allegations + raise affirmative defenses
(1) Admit, deny, or state insufficient knowledge to admit/deny NO DENIAL = ADMIT (except amount of damages)
(2) Affirmative defenses insert new facts for D to win—SOF, SOL, res judicata, self-defense, etc.
a. Failure to raise affirm. def. in answer waived
Amended Pleadings
Right to Amend—by P once within 21 days of D’s first Rule 12 response; by D once within 21 days of serving motion/answer
Expiration of Right to Amend—must seek leave of court granted if justice so requires (based on delay, prejudice, futility of amendment)
Variance—evidence at trial does not match pleadings P may move to amend complaint to conform to evidence (if not objection)
Relation Back—if same T/O, treat amended complaint as though it was filed when original was filed to avoid SOL problem
(1) Join a claim related back if: same T/O as original
(2) Change D relates back if: same T/O as original + D knew/should have known (knowledge within 90 days after filing complaint)
Supplemental Pleadings—for things that happen after pleadings filed NO RIGHT to file; court discretion
Rule 11—after reasonable inquiry, lawyer certifies—not for improper purpose; legal contentions warranted by law or nonfrivolous argument for
law change; and factual contentions/denials have evidentiary support
Sanctions—purpose to deter, not punish; brought against party, lawyer, or firm after violation of Rule 11
(1) Can be brought sua sponte
(2) Safe Harbor Provision—party has 21 days to fix issue before motion for sanctions can be filed with court
JOINDER
Joinder—must be allowed by Fed. Rules + Fed. court must have SMJ over every single claim in case
Claim Joinder by P—P may join ANY additional claim against adverse party (even if unrelated), so long as SMJ over each claim
Proper Ps & Ds—claims by multiple Ps OR against multiple Ds must: arise from same T/O + raise 1+ common question of law or fact
Necessary & Indispensable Parties
Necessary—court cannot complete relief without absentee; absentee’s interests may be harmed if not joined; or absentee claims interest that
subjects party to risk of multiple obligations
Joinable—if necessary, absentee is only joined if feasible—PJ over absentee + SMJ over claim by/against absentee
If No Joinder—if absentee cannot be joined, proceed without or dismiss? alternative forum available? Likelihood of harm to absentee? Shape
relief to avoid harm to absentee?
(1) If dismiss (rather than proceed) absentee is “indispensable”
Counterclaims—claims against opposing party, part of D’s answer (SMJ—FQ/Diversity/Supp) P must respond within 21 days of service
Compulsory Counterclaim—arises from same T/O, must file or claim is waived (ONLY COMPULSORY CLAIM IN FED COURT)
Permissive Counterclaim—does not arise from same T/O as P’s claim
Crossclaims—claim against coparty, must arise from same T/O, must have SMJ, NOT compulsory
Impleader (Third-Party Practice)—may implead if nonparty is liable to D for any part of judgment that P may recover (not compulsory) NOT
available if D claiming no fault—only contribution (not indemnification)
(1) Right to implead within 14 days of serving answer (otherwise leave of court)
(2) TPD bring T/O claim against P supplemental jdx
(3) P brings T/O claim against TPD limitation on supplemental jdx
(4) Citizenship between P and TPD irrelevant for diversity
Intervention—nonparty bringing herself into case as P or D (court may realign), must be timely
Intervention of Right—if absentee’s interest may be harmed if not joined, and not adequately represented by current parties
Permissive Intervention—absentee’s claim/defense have 1+ common question of law or fact (discretion)
Class Actions
Initial Requirements to Qualify—ALL 4:
(1) Numerosity—too many members for joinder
(2) Commonality—common issue to all members
(3) Typicality—class rep’s claims are typical of claims of class
(4) Representative Adequate—will fairly & adequately represent class
Types of Class Actions
(1) Prejudice—class treatment necessary to avoid harm/prejudice to class members
(2) Injunctive/Declaratory Relief—(not seeking damages)
(3) Common Question/Damages—common Qs predominate over individual Qs + class action is superior method to handle dispute
a. In this type of class action, court must notify class members and give option to opt-out of class (bound if don’t opt-out)
Certify, Define, Appoint—court must certify class action, define class and class claims, and appoint class counsel (who must fairly & adequately
represent interests of class)
Settlement/Dismissal—parties ONLY can settle or dismiss certified class action with court approval (court must give notice to class members to
get feedback on settlement/dismissal)
Class Action Fairness Act (CAFA)—SMJ separate from diversity if: 100+ members + any class member has diverse citizenship from any D +
aggregated class claims > $5 million
(1) Any one D (even in-state) can remove case from state to Fed court
DISCOVERY
Initial Required Disclosures—each party must disclose (without demand) within 14 days of Rule 26(f) conference
(1) Identities of persons w/ info. supporting claim/defense
(2) Documents/things supporting claim/defense (only those in party’s custody and control)
(3) Computation of relief and supporting documents/ESI
(4) Insurance coverage that might cover all/part of judgment
(5) Failure to disclose = cannot use at trial (unless harmless error or justified)
Expert Witness Required Disclosures—each party must disclose:
(1) Identities of EWs who might be used at trial
(2) Written reports prepared by EW including: EW’s opinions, bases for opinions, facts used to form opinions, EW’s qualifications, amount of
EW’s compensation
(3) Failure to disclose = cannot use EW in the case (unless harmless error or justified)
(4) NOT consulting experts—not testifying at trial
Required Pre-Trial Disclosures—30+ days before trial, parties must give detailed info. about trial evidence identity of testifying witnesses, ESI,
other evidence they intend to introduce at trial
Discovery Tools—parties can request information from each other after Rule 26(f) conference; Duty to supplement if new info.
Depositions—live testimony with questions by counsel; Max # 10
(1) Must subpoena nonparties; subpoena duces tecum = requires deponent to bring requested materials to depositions
(2) Cannot depose same person twice; cannot exceed 7 hours in one day; nonparty cannot be required to travel > 100 mils from residence/place
of work
Interrogatories—written questions, written answers; max # 25
(1) ONLY sent to parties (never nonparties)
(2) Must answer within 30 days of service
Request to Produce—request to documents/things available for review/copying (only parties), must respond within 30 days of service
Medical Exam—physical/mental, court order required to compel (must show good cause and person’s health in actual controversy)
(1) Requesting party choose medical professional
(2) Examined party requesting copy of medical report waives any doctor-patient privilege with that doctor about that condition
Request for Admission—written request to admit certain matters (only parties), must respond in writing within 30 days of service
(1) Failure to deny matter deemed admitted
Scope of Discovery—party can discover anything: relevant to claim/defense + proportional to needs of case
Privilege—party can object to discovery on basis on privilege
Work Product Doctrine—material prepared in anticipation of litigation is protected from discovery
(1) Qualified Work Product—substantial need + undue hardship in obtaining material in alternative way discoverable
(2) Absolute Work Product—mental impressions, conclusions, opinion, legal theories NOT discoverable
Enforcement of Discovery Rules
Protective Order—party may move for protective order if:
(1) Thinks discovery request subjects her to annoyance, embarrassment, undue burden, expense; AND
(2) Certifies good faith attempt to resolve without court (asked other party to “meet and confer”)
(3) Court can deny, limit, or permit discovery
Sanctions—seeking party must certify she tried in good faith to get info. without court (tried to “meet and confer”) merits sanctions + costs and
attorneys’ fees, IF: party only partially responds & violates order compelling answer OR fails to respond entirely
(1) Merits Sanctions—establishment order, strike pleadings of disobedient party, disallow evidence, dismiss P’s case if bad faith, default
judgment against D if bad faith
Litigation Holds—if party fails to reasonably preserve discoverable information in reasonable anticipation of litigation “adverse interference”
order (presume info. unfavorable to party that “lost” it); or merits sanctions

ADJUDICATION WITHOUT TRIAL

Temporary Restraining Order (TRO)—order to maintain status quo, before getting, and until hearing on, preliminary injunction
Ex Parte—court can issue ex parte, without notice to adverse party IF:
(1) Applicant files under oath showing immediate & irreparable harm if TRO not issued; AND
(2) Applicant’s lawyer certifies efforts to give notice to adverse party (or why notice should not be required)
Timing & Duration—TRO must be served on adverse party ASAP, order not immediately appealable max 14 days + 14 day extension
(1) TRO extension requires good cause (principal witness’s planned vacation is not good cause)
Preliminary Injunction—order to maintain status quo until trial must show: likely to suffer irreparable harm if no injunction + likely to win on
merits + balance of hardships favors applicant + public interest
(1) ALWAYS DICRETIONARY
(2) Cannot be issued ex parte
(3) Immediately appealable as of right
Voluntary Dismissal—P has right to voluntarily dismiss (withdraw) case by filing “notice of dismissal” once without prejudice, before D serves
answer/MSJ (if after, need court permission)
1st VD without prejudice (P can refile)
2nd VD with prejudice (adjudication on merits; P cannot refile)
Default & Default Judgment—if D fails to respond to complaint within 21 days of service (60 if waived, 90 if outside U.S.)
Entry of Default—P can seek entry of default from clerk of court (D can respond any time before default is actually entered)
Default Judgment
(1) Clerk can enter if: D made no response at all + claim is for a sum certain + claimant gives affidavit of sum owed + D is not minor or
incompetent
a. MUST go to judge if any of the elements are missing
(2) Judge will hold hearing and has discretion to enter—opposing party entitled to notice if appeared/responded in some manner; recovery
limited to what is pleaded in complaint
Motion to Set Aside—D may move to have court set aside default or default judgment by showing: good cause + viable defense
Motion to Dismiss for Failure to State a Claim plausibility standard—if facts are true, do they state a plausible claim? (may allow P to amend
complaint to state a claim)
Motion for Summary Judgment (MSJ)—no genuine dispute of material fact + entitled to judgment as matter of law
(1) Court discretion (abuse of discretion standard on appeal)
(2) Any party can file MSJ, at any time up to 30 days after close of discovery
(3) Light most favorable to nonmoving party (can look to evidence)

CONFERENCES, TRIAL, POST-TRIAL MOTIONS

Conferences/Judicial Management
Rule 26(f) Conference—21+ days before scheduling order, parties must “meet and confer” to discuss initial matters and discovery must
present detailed discovery plan to court within 14 days after
Scheduling Order—sets cut-offs for changes to trial, roadmap for case up to trial
Pretrial Conferences—final pretrial conference determines issues to be tried and evidence to be proffered at trial
Jury Trial—7th Am. right to jury trial in Fed court for actions at law (not suits at equity); jury only decides facts must demand jury in writing
within 14 days after service of last jury triable issue
Voir Dire—jury selection process
(1) Challenges/Striking Jurors:
a. For Cause—unlimited
b. Peremptory—limited to 3 (not based on race or gender)
(2) Min 6 jurors; max 12
(3) Verdict must be unanimous
Jury Instructions—submitted to court, court instructs parties of instructions it will give, must object on record before jury is “charged” (or
objection waived)
Verdicts
(1) General Verdict—verdict + relief
(2) Special Verdict—jury answers Qs
(3) General Verdict w/ Written Qs—verdict + jury answers Qs
Juror Misconduct—verdict may be impeached and new trial ordered based on external matters (non-juror testimony)
Motions At & After Trial
JMOL (Directed Verdict)—after other party heard, but before case submitted to jury, based on evidence presented at trial, reasonable people
could not disagree on result
RJMOL—after trial, only if moved for JMOL at trial, within 28 days after judgment, reasonable people could not disagree on result
Motion for New Trial—any non-harmless error at trial, brough within 28 days after judgment
Remittitur/Additur—choice between remit/add part of damages award OR go through new trial because so excessive/inadequate it shocks the
conscience (additur ONLY allowed in state court—NOT FED)
Motion for Relief from Order/Judgment—“Motion to Set Aside”
Clerical Error—anytime
Mistake, Excusable Neglect—reasonable time (< 1 year)
Fraud, Misrepresentation, Misconduct— reasonable time (< 1 year)
Newly Discovered Evidence Not Discoverable w/ Due Diligence— reasonable time (< 1 year)
Judgment is Void— reasonable time (no maximum)

APPELLATE REVIEW
Final Judgment Rule—must file appeal from final judgment (decided on merits) w/in 30 days of entry EXCEPTIONS—Interlocutory Appeals:
Injunctions—orders granting, modifying, refusing preliminary or permanent injunctions immediately appealable as of right
Interlocutory Appeals Act—allows appeal of nonfinal judgment if: involves controlling issue of law + substantial ground for difference of opinion
+ court of appeals agrees to hear
Collateral Order Doctrine—appellate court discretion to hear appeal if issue is: distinct from merits of case + important legal question +
unreviewable if parties await final judgment
Multiple Claims & Parties
Class Action—appellate court discretion to review certification order if sought within 14 days of order
Standards of Review on Appeal
Question of Law de novo (no deference)
Question of Fact: Bench Trial clearly erroneous
Question of Fact: Jury Trial reasonable people could not have made same finding (great deference)
Discretionary Matters abuse of discretion

PRECLUSION
Claim Preclusion (Res Judicata)—Requirements to bar claim:
(1) Same P against same D
(2) First case ended in valid, final judgment on the merits
(3) Asserting same “claim”
a. Majority (Fed) any right to relief arising from same T/O
b. Minority (primary rights doctrine) separate claims for property damage and personal injuries from same T/O
Issue Preclusion (Collateral Estoppel)—Requirements to bar issue:
(1) First case ended in valid, final judgment on the merits
(2) Same issue actually litigated and determined
(3) Issue was essential to the judgment
(4) Asserted against party, or was in privity
(5) Asserted by party OR:
a. Nonmutual Defensive IP most courts allow
b. Nonmutual Offensive IP most courts do NOT allow, BUT look to Fairness Factors:
i. Full & fair opportunity to litigate
ii. Strong incentive to litigate and Could not have easily joined
iii. No inconsistent findings on issue
 CON LAW SHORT SHEET
JUDICIAL POWER (ART. III)
Justiciability—“case or controversy” requirement
NO Advisory Opinions—fed. cts cannot issue decisions that lack actual dispute between adverse parties and legally binding effect on parties
Ripeness—NO pre-enforcement review of law/policy, unless:
(1) Fit for judicial decision (legal, not factual issues); and
(2) Plaintiff would suffer substantial hardship
Mootness—no live controversy or ongoing injury Exceptions:
(1) Capable of repetition (inherently short duration)
(2) Defendant voluntarily stops, but can resume
(3) Class actions with 1+ class member with viable claim
Standing
(1) Injury—plaintiff must suffer actual injury (or imminent/high likelihood of future harm)
a. No third-party standing (unless closely related)
(2) Causation—defendant’s conduct caused injury
(3) Redressability—favorable decision could eliminate/remedy injury
NO Generalized Grievances—NO constitutional standing merely as “citizen” or “taxpayer” Except:
(1) Taxpayer challenging tax bill
(2) Federal action violative of 10th Amendment
(3) Congress tax/spending violates specific limitation
Abstention—unsettled state law OR pending state criminal proceeding
Political Questions—will NOT decide if constitutionally left to another branch of government
11th Amendment: Sovereign Immunity—BARS private party suits against states in federal/state courts and agencies Exceptions:
(1) Waiver (express or implied)
(2) Actions against local governments
(3) Suits by federal government or other states
(4) Bankruptcy proceedings
(5) Actions against state officers—personally for damages; officially to enjoin unconstitutional conduct
(6) Congress removes immunity under 14th Amendment
Supreme Court Jurisdiction
Original JDX—state is party, ambassadors, public ministers, consuls
Appellate JDX—power to review constitutionality other branches’ acts (judicial review) and states’ acts (supremacy clause)
(1) Discretion to hear final judgments from:
a. Highest state court (violates Constitution or federal law);
b. U.S. Court of Appeals; or
c. 3-judge federal district court panel (rare)
Adequate & Independent State Law Grounds—will NOT exercise JDX if interpretation of federal law/Constitution would not change decision

LEGISLATIVE POWER (Art. I)

NO General Police Power—EXCEPT: Military, Indian Reservations, Federal Lands, and D.C.
Necessary & Proper Clause—may make rational law, not prohibited by Constitution, necessary & proper to carry out enumerated powers
Taxing & Spending—Congress may tax/spend for general welfare
(1) Conditions on grant of funds: clearly stated, relate to purpose, not unduly coercive, do not violate Constitution
Commerce—Congress may regulate interstate & foreign commerce:
(1) Channels (highways, waterways, airspace, internet, telephones)
(2) Instrumentalities (planes, trains, automobiles) & persons/things
(3) Intrastate economic activities (aggregation) or private discrim. (14th Am) w/ substantial effect on interstate commerce
Other Powers—War, Taking, Postal, Citizenship/Aliens, Admiralty
Delegation of Powers—Congress can delegate rulemaking/regulatory power to other branch, if intelligible standards set
Bicameralism and Presentment—to pass a law, must pass both houses of Congress, President must sign or veto
NO Line Item Veto—President can only approve or reject entire bill; cannot pick and choose parts
NO Legislative Veto—Congress cannot repeal or amend existing law without bicameralism and presentment
Speech or Debate Clause—congressional immunity for conduct in regular course of legislative process

EXECUTIVE POWER (ART. II)

Domestic Powers
Take Care Clause—express power and duty to faithfully execute laws
Presidential Claims to Power
(1) Express/implied authority of Congress at its maximum
(2) Congress silent “twilight zone” (constitutionally uncertain)
(3) Against express will of Congress action invalid
Appointment—high level officers and justices, with senate approval
Removal—high level executive officers at will (Congress can only remove through impeachment)
Pardons—all federal offenses, except impeachment
Veto—10 days to veto act of Congress (but 2/3 vote of each house)
Foreign Powers
Commander-in-Chief—no power to declare war, but broad discretion over American troops and to act militarily (Korea, Vietnam, Iraq)
Foreign Relations—represent U.S. in foreign relations
Treaties—enter treaties, with 2/3 Senate approval
Executive Agreements—signed by President and head of foreign country (NO Senate approval required)
HIERARCHY—Constitution > Treaty, Federal Statute (last in time) > Executive Agreement > State Law
Executive Privilege—can keep certain communications secret to protect national security (unless necessary in criminal proceeding)
Executive Immunity—absolute immunity from civil damages based on any action taken while exercising official responsibilities

FEDERALISM
10th Amendment—all powers not granted to federal government or prohibited to states are reserved to the states
States’ General Police Powers—health, safety, welfare of people
Anti-Commandeering—Congress cannot compel states to act in a particular way or enforce federal laws
Supremacy Clause—Federal law supersedes or preempts state law
Express Preemption—federal law explicitly prohibits states
Implied Preemption
(1) Conflict state law preempted
(2) Prevents achievement of Federal objective state law preempted
(3) Field Preemption—Federal law occupies the entire field, thus barring any state/local law (even if nonconflicting)
Presumption Against Preemption—state police powers NOT to be superseded unless clear/manifest purposes of Congress
Privileges & Immunities Clause—prohibits discrimination by state against nonresidents (strict scrutiny), ONLY IF:
(1) Natural U.S. citizen—NOT corporations or aliens
(2) Important commercial activities
(3) Discrimination protectionist in nature
Dormant Commerce Clause—states must not discriminate against or unduly burden interstate commerce (strict scrutiny) Exceptions:
(1) Congressional approval
(2) State as “market participant”
(3) Traditional government function

INDIVIDUAL LIBERTIES FRAMEWORK

State Action Doctrine—Constitution only applies to government action Exceptions:
(1) 13th Amendment—ban on slavery and involuntary servitude
(2) Exclusive Public Functions—activities so traditionally and exclusively reserved for state (company towns, prisons)
(3) Significant State Involvement—state affirmatively facilitates, encourages, authorizes, or is sufficiently entwined with private party (mere
acquiescence not enough)
Levels of Scrutiny
Strict Scrutiny—necessary to achieve compelling government interest (least restrictive means) burden on government
Intermediate Scrutiny—substantially related to important government interest burden on government
Rational Basis—rationally related to legitimate government interest burden on challenger

DUE PROCESS CLAUSE

Procedural Due Process—depriving someone of life, liberty, or property requires:
Notice—reasonably calculated to inform person of deprivation
Hearing—type and extent Balancing Test:
(1) Importance of interest to individual; and
(2) Benefit of any additional procedural safeguards; against
(3) Gov. interest in efficiency/burden from additional procedures
Neutral Decisionmaker—without actual/serious risk of bias
Public Employees—terminated for cause, must be given notice and pretermination opportunity to respond and evidentiary hearing
Substantive Due Process—guarantees laws will be reasonably and not arbitrary Fundamental rights (strict scrutiny):
Privacy-Related Rights
(1) Marriage (applies to same-sex couples)
(2) Procreation
(3) Use of Contraceptives (for adults or minors)
(4) Parental Rights
(5) Extended Family to Live Together
(6) Obscenity at Home (not child porn)
(7) Sexual Conduct (consensual, adult, private, non-commercial)
(8) NO RIGHT—abortion, education, physician- assisted suicide
Right to Travel—from state to state, equal treatment in new state
Right to Vote
(1) Restrictions:
a. Residence, age, citizenship valid
b. Property ownership invalid
c. Identification valid
d. Poll Taxes invalid
e. Early registration in primaries valid
f. Prohibiting political parties from opening primary elections to anyone invalid (15th Amendment)
(2) Dilution of Right to Vote
a. “One person, one vote”
b. Racial gerrymandering unconstitutional
c. Political gerrymandering nonjusticiable political question
Right to Fair Notice—laws must give fair notice of conduct that is forbidden or required (otherwise violates Due Process Clause)

RIGHT TO BEAR ARMS

2nd Amendment—right to keep and bear arms for self-defense, at home or in public
Standard of Review—government must justify regulation that burden 2nd Amendment rights by showing it is consistent with country’s historical
tradition of firearm regulation
EQUAL PROTECTION
Equal Protection Claim—government treats some people differently from others
Constitutional Sources of Protection
(1) 14th Am. Equal Protection Clause
(2) 5th Am. Due Process Clause (has equal protection component)
Suspect Classification strict scrutiny
(1) Race
(2) National Origin
(3) Alienage (state/local)
a. Federal Alienage Classification—rational basis review (Congress has plenary power over aliens)
b. State/Local Alienage Classification—states may not require U.S. citizenship for employment, gov. benefits, property ownership,
admission to bar Except—rational basis for:
i. Laws discriminating against alien participation in state government (voting, jury service, elective office)
ii. Non-elective offices involving important public policy (police officers, probation officers, primary and secondary public school
teachers)
c. Undocumented Alien—NOT suspect classification rational basis review
Quasi-Suspect Classification intermediate scrutiny
(1) Gender—“exceedingly persuasive justification”
a. Role stereotypes invalid (not important interest)
b. Remedy past discrimination valid
(2) Legitimacy—marital and non-marital children
a. Intended to punish non-0martial children invalid
Government Intent to Discriminate—to apply strict or intermediate scrutiny must show government intent to discriminate by:
(1) Facially discriminatory law;
(2) Discriminatory application of facially neutral law; OR
(3) Facially neutral law with disparate impact on protected class
(4) Discriminatory effect alone not enough—need intent
Other Classifications rational basis review
(1) Age, Disability, Wealth
(2) Animus towards certain group NOT legitimate interest

TAKING CLAUSE
5th Amendment—private property may only be taken by the government for (1) public use, and (2) just compensation
Public Use—liberally construed gov. action rationally related to legitimate public purpose (health, welfare, safety, economic, aesthetic)
Just Compensation—FMV at time of taking, based on loss to owner
Physical Takings—confiscation or permanent/regular physical occupation of person’s property
Development Exception—condition on development permits for an easement is a taking, unless:
(1) Essential nexus between condition and development; AND
(2) Adverse impact of development is proportional to loss to owner
Emergency Exception—not taking if pursuant to public emergency
Regulatory Takings—denies owner all economically viable uses of land
RETROACTIVE LEGISLATION
Due Process—retroactive legislation must provide due process (rational basis if no fundamental right involved)
Contract Clause—states (NOT FEDERAL) cannot enact laws that retroactively impair rights and obligations under contracts
Private Contracts intermediate scrutiny—law that substantially impairs existing private contract invalid unless narrowly tailored to promote
important government interest
Public Contracts heightened scrutiny
Ex Post Facto—unconstitutional for law to retroactively alter criminal offense or liability in substantially prejudicial manner CANNOT:
(1) Impose criminal liability for previously lawful act;
(2) Impose greater punishment for previous act;
(3) Reduce evidence required to convict for previous act
Bills of Attainder—unconstitutional for legislation to inflict punishment on individuals without judicial trials

FREEDOM OF SPEECH (1ST AMENDMENT)

“Speech”—words, symbols, and expressive conduct
Unprotected Speech
Incitement—intended and likely to produce imminent lawless action
Fighting Words—likely to incite immediate physical retaliation
(1) True Threats—intended to convey serious threat of bodily harm
Obscenity
(1) Sexual conduct that, taken as whole by average person:
a. Appeals to prurient interest in sex contemporary community standard
b. Is patently offensive contemporary community standard
c. Lacks serious value (P.A.L.S.; political, artistic, literary, scientific) national, reasonable person standard
(2) Private home possession not punishable EXCEPT child porn
(3) Secondary Effects—government may use zoning ordinances to regulate based on secondary effects, BUT cannot ban altogether
Partially Protected Speech
Defamatory Speech—about public official/figure or matter of public concern must prove defamation elements + falsity + actual malice
(1) “Actual Malice”—clear and convincing evidence of:
a. Knowledge of falsity; or
b. Reckless disregard as to its truth
Commercial Speech hybrid-intermediate scrutiny—narrowly tailored to directly serve substantial government interest
(1) “Narrowly tailored” ≠ least restrictive means reasonable fit
(1) NOT protected: false, misleading, about illegal products/services
(2) Disclosure required if—not unduly burdensome and reasonably related to state’s interest in preventing deception
Content-Based—restriction based on subject matter or viewpoint strict scrutiny
Content-Neutral—subject-matter neutral & viewpoint-neutral intermediate scrutiny—important government interests unrelated to
suppression of speech, must not burden substantially more speech than necessary (narrowly tailored)
(1) Time, place, and manner restrictions
Government Property (Forums)
Public & Designated Public Forums
(1) Public Forum—historically open to speech
a. Streets, sidewalks, public parks
(2) Designated Public Forum—not historically open to speech, but which government has thrown open for speech
(3) Content-Based strict scrutiny
(4) Content-Neutral intermediate scrutiny (must leave open alternative channels)
Limited Public & Nonpublic Forums
(1) Limited Public Forum—not historically open for speech, but opened for specific speech
a. School gym opened for a debate, school-funded publications
(2) Nonpublic Forum—not historically open for speech, and not held open for speech
(3) CAN regulate speech to reserve forum for intended use
(4) Viewpoint-Neutral rational basis
(5) Viewpoint-Based strict scrutiny
Speech in Public Schools—primary and secondary schools, and school-sponsored activities are nonpublic forums
Student Speech On-Campus—censored only if substantial disruption OR promotes illegal drug use
Student Speech Off-Campus—censored only to prevent cheating, bullying, threat, or other pedagogical/safety interests that clearly outweigh
speech interests
School Speech—restriction speech in curricular/extracurricular activity rational basis reasonably elated to legitimate pedagogical interest
Speech in Public Employment
Unprotected Government Employee Speech
(1) At work, matter of private concern can punish if disruptive to work environment
(2) On the job, pursuant to official duties can punish
Protected Government Employee Speech
(1) Matter of public concern, not pursuant to official duties balancing test—value of speech vs. interest in efficient operation
(2) Matter or private concern, outside workplace unclear (protected absent detrimental effect on workplace)
Political Campaigns—federal government may prohibit executive branch employees from active participation in political campaigns
Patronage—may not base public employment decisions on party affiliation/political views except policy-making decisions where relevant
Loyalty Oaths—gov. can require, but cannot be overbroad or vague
Void for Vagueness & Overbreadth—unconstitutional if does not give reasonable notice of what is prohibited OR punishes substantially more
speech than necessary
Prior Restraints—prevent speech before it occurs must provide procedural safeguards (narrow, reasonable, definite standards)
Licensing Officials—cannot have broad discretion (defined standards)
Government-Compelled Speech—freedom to speak includes freedom not to speak government CANNOT COMPEL speech
(1) Government can use tax revenues to express government message, even if taxpayer disagrees
Campaign Contributions intermediate scrutiny
(1) To prevent corruption (or appearance of), may limit amount of $ person can contribute to political candidate
(2) Cannot limit amount spent to support/oppose ballot referendum
(3) Cannot limit total, aggregate amount of one’s political contributions
(4) Cannot limit amount of candidate’s political expenditures
(5) Regulation of core political speech strict scrutiny

FREEDOM OF ASSOCIATION (1ST AMENDMENT)

Freedom of Association—gov. may NOT prohibit politically unpopular groups or unduly burden person’s right to belong to such groups
Prohibiting Group Membership strict scrutiny—person is: (i) actively affiliated; (ii) knowing of illegal activity; and (iii) specific intent of
furthering illegal activity
Disclosure of Group Membership—if disclosure would chill association strict scrutiny
Prohibiting Group from Discriminating constitutional unless interfere with intimate association or expressive activity

FREEDOM OF RELIGION (1ST AMENDMENT)

Free Exercise Clause—gov. cannot punish someone on the basis of their religious belief, status, or conduct
(1) Can question sincerity, but not truthfulness of religious belief
Discriminates on Basis of Religion strict scrutiny
(1) Discriminatory if either:
a. Facially discriminates on basis of religion;
b. Facially neutral, but not generally applicable—silent on religion, but targets religion by design;
(2) CANNOT challenge gov. action unless specifically designed to interfere with religion (intent)
(3) Generally applicable regulations that just so happen to burden religion do NOT violate the Free Exercise Clause (alone)
Exemptions—Free Exercise Clause does not require religious exemptions from generally applicable regulations, but granting religious exemptions
does not violate Establishment Clause
Government Benefits—cannot deny benefits from person if religious conduct, alone, prohibits them from satisfying requirements for benefit
Establishment Clause—gov. cannot sponsor, aid, or formally establish religion
3-Part Test:
(1) Neutrality—gov. must remain neutral with religion (neither favor nor disfavor)
(2) Coercion—gov. cannot coerce people to exercise/not exercise religion (directly or indirectly)
(3) History & Tradition—analysis focused on original meaning (Founders’ intent) and history
4 Categories of Cases
(1) Religious sect preference—invalid (strict scrutiny)
(2) Unconnected to financial aid or education
(3) Financial benefits to religious institutions—treating religious private schools the same as non-religious private schools does not violate
Establishment Clause / is required by Free Exercise Clause subsidize private education, cannot deny same funding to religious schools
(4) Religious activities in public schools—school-sponsored religious activity invalid, but accommodation for religion valid
 CONTRACTS SHORT SHEET
CONTRACT GENERAL PRINCIPLES
Contract = Offer + Acceptance + Consideration – Defenses
Mutual Asset = Offer & Acceptance OBJECTIVE standard—did words or conduct manifest present intent to enter contract?
UCC Art. 2—governs contracts involving sale of goods
Goods—all things movable, at time identified as items for contract
(1) Dominant aspect of contract governs (goods vs. services)
Merchant—regularly deals in goods of the kind sold
Duty Good Faith & Fair Dealing—imposed in every contract (common law and UCC)

CONTRACT FORMATION: OFFER & ACCEPTANCE

Offer—manifestation of present intent to enter contract; reasonable offeree would believe her assent creates contract creates power of
acceptance in offeree
Offers Must Include—identification of offeree and certainty of subject matter/essential terms:
(1) Real Estate description of land + price
(2) UCC Sale of Goods quantity term
a. Requirement Contract—promise to buy/sell all goods buyer requires
b. Output Contract—promise to sell/buy all goods seller produces
c. Valid unless increase in amount is disproportionate
(3) Employment duration
(4) Services all material terms
Advertisements—merely invitations for offers Exceptions—promise; certain/definite terms; offeree identified
Termination of Offer
By Acceptance—offer cannot be revoked after accepted; offer cannot be accepted after revoked/terminated
By Offeree
(1) Lapse of time (specified or reasonable time)
(2) Rejection (effective when received by offeror)
a. Including counter-offer, conditional acceptance
b. Mere bargaining/inquiry not enough for rejection
By Offeror
(1) Revocation (effective when received by offeree)
a. Direct—direct communication to offeree
b. Indirect—offeree receives correct information, from reliable source, of offeror’s acts that would indicate to reasonable person
offeror’s intent to revoke
(2) Limitations—offer can be revoked at will by offeror, EXCEPT:
a. Options—offeree gives consideration for offeror’s promise to keep offer open for specified amount of time
b. Merchant’s Firm Offer (UCC)—merchant’s offer to buy/sell goods irrevocable for amount of time not exceeding 90 days IF signed
writing and gives assurances it will be held (even without consideration)
c. Detrimental Reliance—offeror could reasonably expect offeree would rely to their detriment on offer, and offeree does so rely
irrevocable option contract for reasonable amount of time
d. Unilateral Contract—irrevocable offer once performance has begun
i. Offeree not bound to complete performance
ii. Mere preparation NOT enough
iii. BUT substantial preparation may be enough for detrimental reliance
e. Bilateral Contract—bilateral contract is formed once offeree begins performance
By Operation of Law
(1) Death or Insanity—either party before acceptance
(2) Destruction—of offeror’s subject matter
(3) Supervening Illegality
Acceptance—manifestation of assent to terms of offer
(1) Offeree must know of offer in order to accept it
Mailbox Rule—acceptance my mail/similar means effective upon dispatch (when sent) EXCEPT:
(1) Offer stipulates acceptance not effective until received
(2) Option contract effective when received
(3) Sends rejection, then acceptance first to arrive is effective
Unauthorized Means acceptance effective if actually received
Bilateral Contract—exchange of mutual promises acceptance by promising or beginning performance
(1) Acceptance must be communicated to offeror
Unilateral Contract—promise to pay upon completion of requested act acceptance by completed performance
(1) Beginning performance only creates irrevocable offer
(2) Need not notify once performance has begun, but must notify within reasonable time after completion
Mirror Image Rule (Common Law)—acceptance must be absolute and unequivocal any additional or different terms in acceptance constitute
rejection and counter-offer
Acceptance Under UCC—offer to buy goods may be accepted by promise to ship or prompt shipment (creates bilateral contract)
Battle of the Forms Provision
(1) NO Mirror Image Rule Under UCC—acceptance with additional or different terms is effective (unless expressly conditioned)
(2) Nonmerchant (any party) terms NOT included
(3) Merchants (all parties) additional terms included, unless:
a. Materially alter original terms (change risks/remedies);
b. Offer expressly limits acceptance; OR
c. Offeror already objected/objects within reasonable time
(4) Different terms split of authority (varies)
a. Some: treat different terms like additional terms
b. Others: Knockout Rule—conflicting terms in offer and acceptance are knocked out of contract; gaps filled by UCC
Auction Contracts—sale by auction complete by fall of the hammer
(1) “With reserve” unless explicitly put up “without reserve”
a. “With reserve” = may withdraw goods any time before completion of sale announced
b. “Without reserve” = cannot withdraw goods after bid made

CONTRACT FORMATION: CONSIDERATION

Consideration Requirement—contract enforceable only if supported by consideration Elements:
Bargained-for Exchange—promise must induce detriment; detriment must induce promise NO bargain if: gift or past/moral consideration
(1) Detriment = do something not legally obligated to do OR refrain from doing something legal right to do
(2) Benefit = forbearance/performance of act not legally entitled to
Legal Value—benefit to promisor; detriment to promisee
(1) NO value (token consideration) insufficient
(2) Insignificant value (sham consideration) insufficient, if not paid
(3) Pre-Existing Duty Rule—promising to perform preexisting legal duty is NOT consideration Exceptions:
a. New/different consideration promised;
b. Promise to ratify voidable obligation;
c. Preexisting duty owed to third person;
d. Honest dispute as to duty;
e. Unforeseen circumstances (impossibility, impracticability)
Mutuality—consideration must exist on both sides; only one party bound to perform = illusory promise
(1) Reserving right to terminate contract for period of time also illusory promise
Modification of Contracts
Common Law NO modification without new consideration
(1) Modern View—allow modification without consideration if: unanticipated circumstances + fair and equitable
UCC consideration NOT required for modification—just need good faith, new and different terms
Discharge of Debt—debt discharged through accord & satisfaction accord MUST be supported by new consideration:
(1) Of a different type or to be paid to third party
(2) Partial payment on existing debt—bona fide dispute to underlying claim OR any change in consideration (alt. payment method)
Forbearance to Sue—promise to refrain from suing = consideration, if claim is valid (or good faith belief claim was valid)
Promissory Estoppel—promise enforceable without consideration to prevent unjust enrichment Elements:
Promise
+ Reasonably Foreseeable Detrimental Reliance
+ Detrimental Reliance in Fact (Action or Forbearance)
+ Justice So Requires Enforcement

CONTRACT FORMATION: DEFENSES

Lack of Consideration—no consideration no contract
Lack of Capacity
Infants—minors < 18 lack capacity to enter into binding contract
(1) Disaffirmance—infant may choose to disaffirm contract any time before/shortly after reaching age of majority only must return anything
received under contract that still remains
a. Must be disaffirmed as a whole (cannot pick and choose)
(2) Affirmance—infant may affirm contract upon reaching majority express or implied (failing to disaffirm within reasonable time)
(3) Exceptions Necessaries (food, shelter, clothing, health care)—liable in restitution for value of benefits received
a. student loans, insurance contracts, proprietary information
Mental Incapacity—incapable of understanding nature and significance of contract
(1) Disaffirmance—during lucid interval or by appointed legal rep.
(2) Affirmance—during lucid interval or upon complete recovery
(3) Exceptions Necessaries—liable in restitution for value of benefit
Intoxicated—do not understand nature and significance of promise voidable promise only if other party had reason to know of intoxication
(1) Affirmance—upon recovery
(2) Exceptions Necessaries—liable in restitution for value of benefit
Duress and Undue Influence—VOIDABLE rescission if not affirmed
Duress—assent procured by improper threat
Undue Influence Elements:
(1) Undue susceptibility to pressure by one party; AND
(2) Excessive pressure by other party
Absence of Mutual Assent
Ambiguous Language—terms with 2+ possible meanings:
(1) Neither party aware no contract unless both intended same meaning
(2) Both parties aware no contract unless both intended same meaning
(3) One party aware binding contract based on ignorant party’s reasonably belief as to meaning
Mutual Mistake—as to existing fact (subject-matter; not value) voidable by adversely affected party IF:
(1) Concerns basic assumption on which contract is made;
(2) Has material effect on agreed-upon exchange; and
(3) Party did not assume the risk of mistake
Unilateral Mistake—generally, NOT a defense to contract formation BUT, if non-mistaken party knew/had reason to know of other’s
mistake, voidable by mistaken party IF:
(1) Material effect on agreed-upon exchange; and
(2) Party did not assume the risk of mistake
Mistake by Intermediary—message operative as transmitted unless other party knew/should have known of mistake
Misrepresentation—fraudulent or material misrepresentation by party to induce other party to enter into contract voidable by innocent
party if reasonable/justifiable reliance on misrepresentation
Illegality—consideration/subject matter illegal VOID
(1) Exceptions:
a. Plaintiff unaware of illegality, but defendant knows
b. Parties not in pari delicto (one part not as culpable as other)
c. Illegality from failure to obtain a license (if license is for revenue-raising purposes, not protection of public)
(2) Mere purpose of contract illegal VOIDABLE (by party unaware of purpose or aware but did not facilitate)
Unconscionability—Procedural (unfair bargaining) + Substantive (unfair, oppressive terms); “shocks the conscience”
(1) Common Procedural Unconscionability
a. Inconspicuous Risk-Shifting—boilerplate provisions if inconspicuous or incomprehensible to average person
b. Contracts of Adhesion—“take it or leave it”
c. Exculpatory Clauses—releasing party from liability for their own intentional wrongful acts
d. Limitations on Remedies—unconscionable if inconspicuous
Timing—determined by circumstances at time of formation
Remedies—rescission (entire contract unenforceable), reformation (enforce remainder without unconscionable part)

STATUTE OF FRAUDS (DEFENSE)

Statute of Frauds—certain contracts must be evidenced by a writing, signed by party to be bound M.Y.L.E.G.S.
Marriage—as consideration (e.g., prenup)
Years—term of years (> 1); performance not capable of completion within 1 year
Land—contracts for interest in land (land sale contracts, mortgages)
Executor—executor promises to pay estate debts out of own pocket
Goods $500+—must include quantity term
Sureties—promise to pay debt of another (unless main purpose is to benefit guarantor’s own interests)
Writing Requirement—does NOT require formal writing ONLY requires writing that: reasonably identifies subject matter, indicates contract
between parties, and reasonable describes essential terms
Land Sale description of land and price
Employment duration of employment
Sales of Goods quantity term (signed writing)
Services all material terms (signed writing)
Signature Requirement—any mark or symbol intended to authenticate writing as that of signer
Removal from Statute of Frauds
Contract Modification—modification must be in writing if contract, as modified, falls within SOF
(1) No-Oral Modification Clauses
a. Common Law—written no-oral modification clause ineffective parties can still orally modify contract
b. UCC—signed, written no-oral mod. clause given full effect
(2) Waiver—other party changed position in reliance on oral modification (where written modification was required)
Performance
(1) Land Sale full performance (seller conveys) or partial performance (2 of 3—payment, possession, improvements)
(2) Services full performance
(3) Sale of Goods specially manufactured (not suitable for sale to others & substantial beginning) or paid for/accepted (only to extent of
payment/acceptance)
Admissions in Court—party admits contract’s existence in proceeding
Merchant Confirmatory Memo—both merchants, one sends to other written, signed confirmation of oral agreement within reasonable time
binding if no objection in writing within 10 days of receipt
Equitable & Promissory Estoppel—estoppel applied it unequitable to allow SOF to defeat meritorious claim

TERMS OF A CONTRACT (INTERPRETATION)

Parol Evidence Rule—prohibits extrinsic evidence to vary, contradict, or add to an “integration” (final, complete writing) Exceptions:
Partially Integrated Writing
Formation Defenses—fraud, duress, mistake, illegality
Conditions Precedent—required condition for contract to be effective
Interpretation—uncertainty or ambiguity in writing’s terms or dispute as to meaning
Showing of True Consideration—paid or unpaid
Reformation—facts (mistake) entitling party to reformation
Collateral Agreements—related to subject matter of final agreement, but not primary purpose
Naturally Omitted Terms—does not conflict with integration & subject parties not ordinarily expected to include in writing
Subsequent Modifications—(of written contract)
Additional Terms Under UCC—cannot contradict, but may add additional terms, and may explain or supplement terms by evidence of: course
of performance, course of dealing, trade usage
Contract Construction/Interpretation (General)—Express Terms (of contract) > Course of Performance > Course of Dealing > Trade Usage
As a Whole—contracts construed as a whole; specific clauses subordinated to contract’s general intent
Ordinary Meaning—words given ordinary, or technical meaning
Written/Typed > Printed
Ambiguities—construed against party preparing contract
Course of Performance—parties’ prior conduct under current deal
Course of Dealing—parties’ conduct in prior contracts with each other
Trade Usage—industry norms parties are/should be aware of
Interpretation (UCC)—Supplemental “Gap-Fillers” for Missing Terms (NOT QUANTITY TERM)
Price—reasonable price, at time of delivery
Place of Delivery—seller’s place of business (if none, seller’s home)
Time for Shipment/Delivery—within reasonable time
Time for Payment—due at time and place buyer is to receive goods
Assortment—assortment at buyer’s option if not specified
Warranties (UCC)—contracts for sale of goods include:
Warranty of Title—seller automatically warrants title is good and transfer is rightful (buyer aware of no liens or encumbrances against title at
time of contracting)
Warranty Against Infringement—merchant seller automatically warrants goods are free of any intellectual property claims
Express Warranties—basis of bargain (buyer could have relied on it)
(1) Buyer need not prove they actually did rely, but seller can negate by proving buyer did not actually rely
Implied Warranty of Merchantability—merchant seller impliedly warrants goods at least fit for ordinary, foreseeable purpose
Implied Warranty of Fitness—any seller has reason to know of buyer’s particular purpose and buyer relying on seller’s skill/judgment
Damages for Breach of Warranty—difference between value of tendered and as warranted (general rule)
Limitations on Warranties
Disclaiming Warranties
(1) Warranty of Title—specific language/circumstances giving buyer notice that seller does not warrant title
(2) Express Warranty—cannot be disclaimed
(3) Implied Warranty—can disclaimed either by:
a. Specific, conspicuous disclaimer
b. “As is”/”With faults” language
c. Buyer’s refusal to examine goods (if reasonable examination would have revealed defect)
d. Course of performance, course of dealing, trade usage
Alternative A—beyond initial buyer, seller’s warranty liability extends to buyer’s family and persons/guests in home if reasonable to expect
Delivery Terms & Risk of Loss (UCC)—delivery terms determine when risk of loss passes from seller to buy in sale of goods contracts
Breach
(1) Defective Goods—if buyer has right to reject risk of loss does not pass until defects cured or buyer accepts
(2) Revocation of Acceptance—if buyer rightfully revokes risk of loss treated as having rested on seller from beginning
Noncarrier Case—do not intend goods to be moved by common carrier
(1) Merchant Seller risk of loss passes when buyer takes physical possession
(2) Non-Merchant Seller risk of loss passes upon tender of delivery
Carrier Case—intend for goods to be moved by common carrier
(1) Shipment Contract—no particular destination risk of loss passes when goods delivered to carrier
a. UCC presumes contract is shipment contract
b. Seller must—make reasonable contract with carrier >> deliver goods to carrier >> promptly notify buyer of shipment >> provide
buyer with any necessary documents
(2) Destination Contract—particular destination specified risk of loss passes when goods tendered to buyer at destination
(3) F.O.B. (“free on board”) risk of loss passes at named location
(4) F.A.S. (“free alongside”)—goods shipped by boat risk of loss passes once goods delivered to dock

PERFORMANCE OF CONTRACTS
Performance at Common Law—substantial performance that meets essential purpose of contract
Performance Under UCC
Perfect Tender Rule—delivery and condition of goods must be EXACT as promised in contract (see Breach section below)
Installment Contracts—delivery of goods in separate installments only reject entire contract if substantial impairment of entire contract
incapable of cure (otherwise, future installments cannot be rejected)
Acceptance of Goods
(1) Upfront payment ≠ acceptance
(2) Buyer has right to inspect goods before acceptance/payment (unless contract says otherwise)

CONDITIONS ON PERFORMANCE
Condition—event’s [non-]occurrence creates/releases duty to perform
Condition Precedent—condition must occur before duty to perform
Conditions Concurrent—conditions capable of occurring together, parties bound to perform at same time
Condition Subsequent—condition cuts off existing duty to perform
Express Conditions—strictly construed; need exact/perfect compliance
Mechanical Fitness, Utility, or Marketability—objective, reasonable person standard for whether condition satisfied
Personal Taste—subjective (honest & good faith) standard when condition is satisfied
Constructive (Implied) Conditions
Performance—duty to perform conditioned on other’s performance
Cooperation—duty to perform conditioned on other’s cooperation
Notice—duty to perform conditioned on notice performance is due
Excuse of Condition
Hinderance/Failure to Cooperate—party wrongfully prevents condition from occurring
Waiver or Estoppel—party with benefit of condition manifests (words or conduct) they will not insist on condition being met
(1) Waivable Conditions—must be ancillary/collateral (cannot waive entire return performance)
(2) Estoppel Waiver—party waives condition, other party detrimentally relies on waiver
(3) Election Waiver—condition does not occur or performance broken, but beneficiary of condition elects to terminate liability or continue
under contract (deemed waiver)
(4) Damages—waiver of condition does NOT waive right to damages
Actual Breach—breach when performance is due (common law requires material breach)
Anticipatory Repudiation—party unequivocally manifests (words or conduct) that he cannot/will not perform when time comes
(1) 4 Remedies: bring immediate suit; suspend own performance and wait to sue until performance date; treat as offer to rescind and
contract discharged; or ignore and urge to perform
(2) Before performance due, repudiating party can retract repudiation unless other party canceled, materially changed position in reliance, or
indicated they consider repudiation final
Impossibility, Impracticability, or Frustration
DISCHARGE OF DUTY TO PERFORM
Complete Performance or Good Faith Tender
Occurrence of Condition Subsequent
Supervening Illegality
Rescission—cancellation of contract
Mutual Rescission—express agreement between parties to rescind
(1) ONLY Executory—EACH party must have some performance remaining (or new consideration to cancel)
(2) Formalities—can be oral (unless within SOF)
(3) Third-Party Beneficiary—NO rescission if rights vested (see below)
Unilateral Rescission—rescinding party must have adequate legal grounds (mistake, misrepresentation, duress, lack of consideration)
Partial Discharge by Modification—only discharges parts modified
Cancellation—parties manifest intent to destroy or surrender written contract (if consideration present)
Release—release or contract not to sue (in writing, supported by consideration or promissory estoppel elements)
Substituted Contract—second contract that immediately revokes first expressly or impliedly (based on intent)
Accord & Satisfaction
Accord—new agreement for different performance instead of performance under original contract suspends right to enforce (must be
supported by new consideration)
Satisfaction—performance of accord discharges original and accord
Breach of Accord can sue on either contract
Novation—new contract substitutes new party and discharges original contract Elements:
(1) Previous valid contract;
(2) Agreement among all parties (including new);
(3) Immediate extinguishment of original contract (rights and duties)
(4) Valid, enforceable new contract
Impossibility, Impracticability, Frustration—unanticipated or extraordinary event, nonoccurrence of which was basic assumption of parties,
and neither assumed the risk
Impossibility OBJECTIVE—could not be performed by anyone
(1) Partial Impossibility—only discharged to extent impossible
(2) Temporary Impossibility—suspend, not discharge, duties
(3) Death/Physical Incapacity—only discharge if person is necessary to effectuate contract (otherwise, not discharged upon death)
(4) Supervening Illegality
(5) Destruction of Contract’s Subject Matter—subject matter must have been necessary to fulfill contract
a. NOT discharged if risk of loss has already passed to buyer
b. Contractor’s duty to construct building NOT discharged by destruction of work in progress
Impracticability extreme & unreasonable difficulty or expense
(1) Increase in costs NOT enough (unless change nature of contract)
(2) Shortage of raw materials or inability to convert (war, strike, embargo, unforeseen shutdown of major supplier) sufficient
(3) Catastrophic local crop failure sufficient
Frustration purpose of contract has become valueless Elements:
(1) Supervening act/event not reasonably foreseeable at formation
(2) Purpose of contract destroyed by act/event
(3) Specific purpose known by both parties at formation
Statute of Limitations Running—ONLY BARS judicial remedies does NOT discharge contractual duties
BREACH OF CONTRACT
Breach of Contract—failure to perform (where duty to perform)
Recovery—nonbreaching party must show they are willing and able to perform but for breaching party’s failure to perform
Material vs. Minor Breach (Common Law)
Factors
(1) Benefit received by nonbreaching party
(2) Adequacy of compensation for damages
(3) Extent of part performance by breaching party
(4) Hardship to breaching party
(5) Negligent/Willful behavior of breaching party
(6) Likelihood of performance by breaching party
Minor Breach—gains substantial benefit of bargain (substantial performance) nonbreaching party NOT relieved of duty to perform; BUT
entitled to damages
Material Breach—does NOT receive substantial benefit of bargain treat contract as ended and entitled to all remedies for breach
Minor Breach + Anticipatory Repudiation material breach
Timing of Performance
(1) Failure to perform by stated time generally NOT material breach if performance rendered within reasonable time, unless …
(2) Time is of the essence (express or implied) material breach if failure to perform on time
UCC Perfect Tender Rule—goods/delivery fail to conform to contract in ANY way buyer may reject/accept/combo; BUT seller’s right to cure
Rejection of Goods—buyer must hold goods with reasonable care (not use as own) if no seller instructions in reasonable time, buyer may:
(1) Reship goods to seller;
(2) Store goods for seller’s account;
(3) Resell goods for seller’s account (after reasonable notice of intent to resell) entitled to costs and commission ≤ 10%
Acceptance of Goods—buyer accepts when, after reasonable opportunity to inspect, indicates acceptance to seller OR fails to reject within
reasonable time acceptance cuts off right to reject
Revocation of Acceptance—Requirements:
(1) Nonconformity substantially impairs value of good;
(2) Reasonable belief defect would be cured OR difficulty discovering defect OR seller’s assurances goods conformed;
(3) Revocation within reasonable time after buyer discovers; AND
(4) Revocation before any substantial change to goods occurs
Right to CURE
(1) Within Original Time—may cure with reasonable notice and making new tender of conforming goods (buyer must accept)
(2) Beyond Original Time—no right to cure unless seller reasonably believed nonconforming goods would be acceptable (trade practices, prior
dealings)
NONMONETARY REMEDIES FOR BREACH
Specific Performance—only if money damages inadequate
(1) Land sale contracts yes, unless sold to BFP
(2) Sale of goods only if rare or unique (at time of performance)
(3) Services contracts NO (indentured servitude)
(4) Non-compete contract yes if rare/unique services and covenant reasonable (legitimate interest, geographic scope/duration)
Seller of Goods Remedies
Withhold Goods—buyer fails to make payment due
Reclaim Goods—buyer received goods on credit while insolvent AND
(1) Seller makes demand within 10 day; OR
(2) Buyer misrepresented insolvency 3 months before delivery
Force Goods—seller unable to resell goods at reasonable price
Demand Adequate Assurances—reasonable insecurity of other party’s performance may demand assurances of performance, in writing
(1) May suspend own performance until received
(2) If not received in reasonable time (30 days) Treat as repudiated

MONETARY REMEDY FOR BREACH: DAMAGES

Monetary Damages—proved with reasonable certainty and could not be mitigated/avoided with reasonable effort (only common law)
Compensatory Damages—put nonbreaching party in same position as if performance and no breach
Expectation Damages—sufficient to buy substitute performance
Reliance Damages—expectation damages too uncertain, damages from plaintiff’s reasonable reliance on contract cost of performance
(position as it contract never formed)
Consequential Damages—reasonably foreseeable damages as probable result of breach (at time of formation)
(1) Breaching party must have known/had reason to know of special circumstances giving rise to damages
(2) UCC ONLY buyer may recover consequential damages
Punitive Damages—NOT AWARDED IN CONTRACTS CASES
Nominal Damages—($1) breach shown, but no actual loss proven
Liquidated Damages—parties stipulate damages in event of breach upheld if damages difficult to estimate at formation AND amount is
reasonable forecast of damages (even if no actual damages)
UCC Buyer’s Damages
Seller Doesn’t Deliver/Buyer Rejects Cover Price/Market Price – Contract Price (+ Incidental/Consequential Damages)
Buyer Accepts Nonconforming Goods Contract Price – Value of Nonconforming Goods (+ Incidental/Consequential Damages)
(1) Must give notice of defect within reasonable time after discovery
Seller Anticipatorily Breaches Market Price (at time buyer learned of breach) – Contract Price
Consequential Damages—seller had reason to know of buyer’s requirements and loss could not have been prevented by cover
UCC Seller’s Damages—
Buyer Repudiates/Refuses to Accept Conforming 3 measures:
(1) Resale Contract Price – Resale Price
(2) Market Contract Price – Market Price
(3) Lost Profits—only if seller has unlimited inventory Contract Price – Cost to Seller = Lost Profits
Action for Full Contract Price:
(1) Buyer accepted, has not paid;
(2) Buyer not accepted confirming goods, seller unable to resell; or
(3) Goods lost/damages w/ risk of loss on buyer
Mitigation—ONLY common law duty to mitigate damages; cannot recover damages that could have been avoided with reasonable effort
UCC NO duty to mitigate damages (generally)
THIRD PARTIES TO CONTRACT
Bona Fide Purchasers & Entrustment—owner entrusts goods to merchant of such goods merchant sells to BFP original owner has NO
rights against BFP; BUT can still sue merchant
Third Party Beneficiaries (TPB)—parties contracting with intent to benefit third party (ONLY intended TPB; not incidental) TPB only has
enforceable rights once VESTED—knowledge of contract + [A]ssent; [B]ringing suit; OR [C]hange position in justifiable reliance
(1) Before vested, parties free to modify/rescind contract without consulting TPB
(2) After vested, parties CANNOT alter TPB’s rights without consent TPB can sue either promisor or promisee
Assignment of Rights—assignor transfers benefits/rights under contract to assignee (NO writing or consideration needed)
Prohibition vs. Invalidation
(1) Prohibition assignment not permitted, but assignee without knowledge can still collect
(2) Invalidation assignment null and void (assignee cannot collect)
Revocability of Assignment
(1) Assignment for Consideration irrevocable
a. If multiple, first in time wins (unless without knowledge and first to get payment/judgment)
(2) Gratuitous Assignment revocable
a. Exceptions—irrevocable if:
i. Obligor already performed
ii. Token chose (tangible claim) already delivered
iii. Simple chose (intangible claim) put in writing
iv. Detrimental reliance (estoppel)
Assignment Liability
(1) Assignee can sue obligor (only if obligor has notice of assignment)
(2) Assignor remains secondarily liable Assignor warrants:
a. Right actually exists
b. Right not subject to any existing/undisclosed defenses
c. Right has not been previously assigned
d. Assignor will not interfere with right
Delegation of Duties—all duties under contract may be delegated without obligee’s consent Exceptions:
(1) Personal judgment/skill
(2) Delegation prohibited under contract (no assignments clause)
Delegation Liability
(1) Obligee must accept performance of duties from delegate
(2) Delegator remains liable on contract—obligee may sue delegator for nonperformance by delegate)
(3) Obligee may require delegate to perform only if Assumption—new contract (supported by consideration) between delegator and
delegate for transfer of all rights and duties under original contract, without releasing delegator (obligee = intended TPB)
 CRIMINAL LAW SHORT SHEET
GENERALLY
**USE COMMON LAW ON BAR EXAM**
Elements—actus reus + mens rea + concurrence (+ causation)
Actus Reus
(1) Voluntary, Physical Acts
a. “Act” = bodily movement
(2) Omissions, but only if:
a. Legal duty to act,
b. Knowledge of facts giving rise to duty, and
c. Reasonably possible to perform
(3) Possession of Contraband
a. Control for long enough to have opportunity to terminate possession
b. Constructive—in area within D’s dominion and control
Mens Rea
(1) Specific Intent (SCA-AMP-BFF-ERL?)
a. Crimes—Solicitation, Conspiracy, Attempt, Assault, Murder (Premeditated), Burglary, False pretenses, Forgery, Embezzlement,
Robbery, Larceny
b. Additional Defenses (ONLY for specific intent)
i. Voluntary intoxication
ii. Unreasonable mistake of fact
(2) Malice—intent or reckless disregard of obvious risk
a. Crimes—Common law murder, Arson
(3) General Intent—awareness of high likelihood of occurrence of factors constituting crime (need not be certain)
a. No intent to achieve specific result
(4) Strict Liability—NO mental state required
a. Guilty just for committing act
(5) Transferred Intent—intend harm caused to different victim/object
a. Crimes—homicide, battery, arson (NOT attempt)
(6) MPC Mental States:
a. Purpose—conscious objective to engage is certain conduct or achieve particular result
b. Knowing—certain or aware of high probability that conduct will cause particular result
c. Reckless—conscious disregard of substantial and unjustifiable risk (grossly unreasonable)
d. Negligent—failure to recognize substantial and unjustifiable risk (objective, reasonableness standard)
Concurrence—D had necessary mental state at time of conduct
Causation
(1) Actual (“But-For”) Causation—would not have happened but for D’s conduct
(2) Proximate Causation—natural and probable consequence of D’s conduct (watch for intervening acts that break causal chain)
Jurisdiction—state has jurisdiction over crime if:
(1) Any element of offense committed in state
(2) Caused result in state
Merger—NO merger of crimes EXCEPT solicitation and attempt
Double Jeopardy—NO trial/conviction for lesser-included offense if already put in jeopardy for greater offense

ACCOMPLICE LIABILITY
Parties to Crime & Liability
Principal—actually engages in act/omission causing criminal result liable for substantive crime
Accomplice—aids, advises, encourages principal in commission of crime liable for substantive crime if intent (see below)
Accessory After the Fact—knowledge person committed felony + assist to escape arrest/punishment liable for less serious crime
Dual Intent for Accomplice Liability—accomplice must have:
(1) Intent to aid, encourage principal in commission of crime; AND
(2) Intent that principal commit substantive offense
(3) (mere knowledge the crime will result insufficient)
Scope of Accomplice Liability
Accomplice liable for:
(1) Crimes committed or aided/encouraged, AND
(2) Any foreseeable crimes committed with underlying crime
Member of Protected Class—NOT liable for violation of statue under which they are member of protected class
Withdrawal—NOT liable if effectively withdraw before commission:
(1) Before crime becomes unstoppable
(2) Encouraged repudiate encouragement
(3) Aided do everything possible to attempt to neutralize aid
(4) Notifying police sufficient
(5) Mere withdrawal without additional action NOT sufficient

INCHOATE OFFENSES
Conspiracy—agreement between 2+ persons with requisite intent
(1) MPC also requires overt act (even mere preparation)
Intent (Specific Intent)
(1) Intent to agree; AND
(2) Intent to achieve criminal objective
Agreement
(1) Common Law—2+ guilty minds
a. Wharton Rule—2+ people necessary for commission of substantive offense (adultery) NO crime of conspiracy without more parties
(2) MPC—only 1 guilty mind required
(3) Agreement may be inferred from joint activity
Liability for Co-Conspirators—conspirator liable for co-conspirators’ crimes IF in furtherance of conspiracy and foreseeable
Defenses to Conspiracy
(1) Factual impossibility NOT defense
(2) Withdrawal NOT defense to conspiracy (conspiracy complete upon agreement)
(3) BUT withdrawal is defense to crimes committed in furtherance of conspiracy to withdraw:
a. Affirmative act that notifies ALL members of withdrawal
b. Given in time for members to abandon plans
c. Try to neutralize any aid provided
Attempt—specific intent (to commit crime) + overt act (in furtherance of crime), but falls short of completing crime
Specific Intent—to perform act and obtain result that, if achieved, would constitute a crime
(1) Regardless of intent necessary for the completed offense attempt ALWAYS requires specific intent
Overt Act—beyond mere preparation for offense
(1) Majority/MPC—substantial step towards committing crime
(2) Historically—dangerously close to completion of crime
Defenses to Attempt
(1) Abandonment:
a. Common Law—NOT defense
b. MPC—IS defense (full and voluntary abandonment)
(2) Legal Impossibility IS defense
(3) Factual Impossibility NOT defense
Solicitation—asking, counseling, advising, urging, commanding another to commit crime + specific intent for solicited person to commit crime
(1) Solicited person need not agree to commit crime
Defenses to Solicitation
(1) NOT defense:
a. Solicited person not convicted
b. Offense solicited could not have been successful
c. Solicitor renounces or withdraws
(2) IS defense:
a. Legislative intent to exempt solicitor for guilt from completed crime (e.g., minor soliciting sex from adult)
Merger
(1) Solicited person commits crime both liable for crime
(2) Solicited person commits attempt both liable for attempt
(3) Solicited person agrees to commit both liable for conspiracy
(4) CANNOT be guilty of both solicitation and another crime

HOMICIDES
Murder—unlawful killing with malice aforethought
Intent to Kill
Intent to Inflict Serious Bodily Injury
Extreme Reckless Indifference to Human Life (“Depraved Heart”)
Felony Murder—any death caused in commission/attempt of, with intent to commit, inherently dangerous felony
(1) B.A.R.R.K.—Burglary, Arson, Rape, Robbery, Kidnapping
(2) Need NOT be convicted of underlying felony
(3) Defense to underlying felony = defense to felony murder
(4) Death must have been foreseeable result of felony
(5) Death must be caused before D has reached place of temporary safety (immediate flight ended)
(6) NOT liable for death of co-felon
(7) Agency Theory (majority)—ONLY liable if killing committed by felon or agent (accomplice)
(8) Proximate Cause Theory (minority)—liable for deaths of innocent victims caused by anyone as result of felony
Manslaughter
Voluntary Manslaughter—killing that would otherwise be murder, but for adequate provocation, is reduced
(1) “Adequate provocation” =
a. Arouse sudden/intense passion in reasonable person
b. D was in fact provoked
c. Not enough time between provocation and killing for reasonable person to cool off between
d. D in fact did not cool off
(2) Imperfect Self-Defense—D unreasonably, but honestly believed n necessity of responding with deadly force (only some states)
Involuntary Manslaughter—mere recklessness or negligence results in killing (unintentionally)
(1) Some states—during commission of misdemeanor or felony other than B.A.R.R.K.

OTHER CRIMES AGAINST THE PERSON

Battery—unlawful application of force, to person of another, resulting in bodily injury OR offensive touching
(1) General intent crime—need NOT be specifically intentional, nor applied directly
(2) Aggravated Battery:
a. Deadly weapon;
b. Serious bodily harm; or
c. Child, woman, police office
Assault—either:
(1) Attempt to commit battery; OR
(2) Intentional creation of reasonable apprehension of imminent bodily harm (battery) in victim’s mind
(3) Aggravated Assault:
a. Deadly/dangerous weapon; or
b. Intent to rape, maim, murder
False Imprisonment—unlawful confinement, in bounded area , of person, without their consent
(1) NO reasonable escape or alternative routes
(2) Consent invalid if—coercion, threat, deception, mental incapacity
Kidnapping—unlawful confinement of person and either:
(1) Some movement of victim; OR
(2) Concealment of victim in unknown/secret place
(3) Aggravated Kidnapping:
a. Ransom;
b. Offensive purposes;
c. Purpose of committing other crimes;
d. Child stealing
Rape—sexual intercourse without effective consent
(1) Slightest penetration sufficient
(2) Lack of “effective consent” IF:
a. Intercourse by actual force;
b. Intercourse by threats of imminent bodily harm;
c. Victim incapable of consenting due to unconsciousness, intoxication, mental condition; or
d. Victim fraudulently caused to believe act is not intercourse
Statutory Rape—sexual intercourse with person under age of consent

PROPERTY CRIMES
Larceny
(1) Taking—obtaining possession/control
(2) Carrying away—slightest movement)
(3) Personal property of another
a. Can be lost or mislaid, but not abandoned
(4) By trespass—without valid consent (wrongfully)
a. Original taking not wrongful, but later decide to keep Embezzlement (not larceny)
b. Continuing Trespass—wrongfully take property without intent to permanently deprive, BUT LATER decide to keep Larceny when
they decide to keep it
(5) With intent to permanently deprive
Embezzlement
(1) Fraudulent—fraudulent intent
a. Intent to restore exact property NO embezzlement
b. Intent to restore similar property Embezzlement
c. Claim of right NO embezzlement
(2) Conversion—dealing with in inconsistent manner
(3) Personal property
(4) Of another
(5) While already in lawful possession
False Pretenses
(1) Obtaining title
(2) Personal property of another
(3) By intentional false statement—of past or existing fact
a. Must actually be deceived by or rely on misrepresentation
b. Misrepresentation must be major factor
(4) With intent to defraud
Larceny by Trick—look to what victim intended to convey due to misrepresentation of fact:
(1) Custody/Possession Larceny by trick
(2) Title False pretenses
Robbery
(1) Taking
(2) Personal property of another
(3) From other’s person or presence
a. “Presence” broadly construed
(4) By force or threat of imminent physical harm
(5) With intent to permanently deprive
Extortion (Blackmail)
(1) Obtaining property
(2) By threats of future harm
Receipt of Stolen Property
(1) Receiving possession and control
(2) Stolen personal property—stolen when received
(3) Known to have been obtained in criminal manner
(4) By another person
(5) With intent to permanently deprive
Forgery
(1) Making or altering
(2) False writing with apparent legal significance
a. Writing itself must be false—NOT just its contents
(3) With intent to defraud
Burglary
(1) Breaking
a. Creating or enlarging opening by at least minimal force, fraud, or intimidation
b. Wide open NO breaking
c. Consent to enter NO breaking
(2) Entering—placing any part of body or instrument inside structure
(3) Dwelling—structure used regularly for sleeping purposes
(4) Of another—occupancy, not ownership
(5) At night
(6) With intent to commit any felony therein—at time of B&E
Arson
(1) Malicious—intent or reckless disregard for obvious risk
(2) Burning—some damage to structure from fire charring
a. Mere scorching NOT sufficient
(3) Of dwelling (modern—any structure)
(4) Of another (modern—own too)

DEFENSES
Insanity
M’Naghten Rule (Common Law)
(1) Disease of mind
(2) Caused defect of reason
(3) Such that defendant lacked ability at time of actions to understand their wrongfulness or nature and quality
MPC/ALI/Modern—mental disease or defect where D lacked substantial capacity to either:
(1) Appreciate criminality of conduct, or
(2) Conform conduct to requirements of law
Burden of Proof
(1) Common Law D must prove insanity by preponderance of the evidence
(2) MPC prosecution must prove sanity beyond a reasonable doubt
(3) Federal D must prove insanity by clear and convincing evidence
Intoxication
Voluntary Intoxication—intentional taking without duress of substance known to be intoxicating ONLY defense to specific intent crimes
Involuntary Intoxication—taking intoxicating substance without knowledge, under direct duress, OR pursuant to medical advice treated as
mental illness—defense to all crimes
Infancy
Child < 7 NO liability for acts
Child 7-14 rebuttable presumption child unable to understand wrongfulness of acts
Child 14+ treated as adult

Mistake
Of Fact defense only if it shows lack of required mental state:
(1) Specific intent ANY mistake of fact (even unreasonable)
(2) Any other mental state Reasonable mistake of fact
(3) Strict liability NO defense
Of Law NOT a defense
Entrapment
(1) Criminal design originated with law enforcement; AND
(2) D not predisposed to commit the crime
a. Merely providing opportunity for predisposed person to commit crime NOT entrapment
Self-Defense
Use of Force—if without fault, may use proportional force as reasonably believed necessary to protect oneself or another from imminent
unlawful force
(1) Threat of imminent death or serious bodily harm deadly force
(2) Defending Property—only reasonably nondeadly force
a. NEVER may use deadly force to defend property
(3) Regaining Property—only if in immediate pursuit of taker
Initial Aggressor—initial aggressor may use force in defense ONLY IF:
(1) They effectively withdraw from confrontation and communicate to desire to do so; OR
(2) Victim suddenly escalates and no chance to withdraw
NO Duty to Retreat (majority)
Duress—defense to crime (NOT intentional homicide) that (1) D reasonably believed, (2) another person would inflict imminent death or serious
bodily harm, (3) upon D, family member, or third person, (4) if D did not commit crime
Necessity—defense that D reasonably believed commission of crime was necessary to avoid imminent danger to society, greater than that from
crime
(1) Objective test—good faith belief not sufficient
(2) Limitations:
a. Causing death to protect property NEVER justified
b. NOT available if D at fault in creating situation responsible for necessity
 CRIMINAL PROCEDURE SHORT SHEET
SEARCHES & SEIZURES (4th AMENDMENT)
4th Amendment—persons are protected against unreasonable searches and seizures from government
Seizure—reasonable person would feel they were not free to terminate the encounter or decline officer’s requests (totality of circumstances)
Government Conduct—4th Am. ONLY protects against governmental conduct (police, agent, private person acting at direction of police,
deputized private security)
Reasonable—generally requires a warrant (but see exceptions)
Standing—Reasonable expectation of privacy in place searched or item seized (totality of circumstances)
(1) YES Standing
a. Owns or right to possession in place searched
b. Person’s home
c. Overnight guest
d. Owns property seized
(2) NO Standing—things held out to public
a. Open fields, public airspace, trash out on the curb, etc.
b. BUT NOT—cell-site location info., GPS on car, technology not in public use for info. inside home
Warrants—Probable Cause + Particularity
Probable Cause—trustworthy facts or knowledge sufficient for reasonable person to believe suspect has committed/is committing a crime
(totality of circumstances)
(1) Warrant issued only if probable cause to believe seizable evidence will be found on person or premises at time warrant executed
(2) Affidavit to neutral and detached magistrate
(3) Informant’s Tip—sufficient indicia of reliability/credibility
(4) Good Faith Exception—evidence obtained in reasonable reliance on facially valid warrant may be used (if warrant invalid in fact)
Particularity—warrant must describe with particularity place to be searched and items to be seized
Execution—only by police, without unreasonable delay
(1) Knock & Announce—must knock, announce purpose, and wait reasonable time for entry
a. Unless reasonable suspicion announcing would be dangerous, futile, or inhibit investigation
b. K&A violation NO exclusionary rule (may use evidence)
(2) Scope of Search—only places and for items described in warrant
(3) May detain occupants of premises during search, but cannot search persons not named in warrant
Probable Cause Arrests
Arrest—taken by into custody against will for purposes of criminal interrogation need probable cause
(1) Arrest Warrant—NOT required, except home arrests
Exceptions to Warrant Requirement
Search Incident to Lawful Arrest—may search person and areas within wingspan, contemporaneous in time and place with arrest
(1) “Wingspan” = could reach to obtain weapons or destroy evidence
(2) Protective seep of area for accomplices (allowed)
(3) Automobiles—may search passenger compartment (NOT TRUNK) only if, at time of search:
a. Person unsecured; or
b. Reasonable belief evidence of offense of arrest in vehicle
(4) Technological Searches—search of things not in existence when 4th Am. adopted Balancing test—intrusion vs. necessity
a. DUI arrest breathalyzer, but not blood test
b. Physical attributes of cell phone, but not data

Automobile Exception—probable cause that vehicle contains fruits, instrumentalities, or evidence of crime may search entire vehicle and any
container that may reasonably contain item
(1) Vehicle parked in curtilage (garage, driveway) may NOT search
Plain View
(1) Lawfully at place
(2) In PLAIN VIEW, discover evidence, fruits, instrumentalities of crime
(3) Immediately apparent (probable cause) that item is evidence, fruit, or instrumentality of crime
Consent—voluntary consent
(1) Must have actual or apparent authority to consent to search
(2) Limited to scope of consent—areas reasonable person would believe it extends to
(3) Present co-occupant objects NO valid consent
Terry Stop & Frisk
(1) STOP—reasonable, articulable suspicion criminal activity is afoot briefly detain suspect for investigatory purposes
a. No time limit—diligent and reasonable manner
b. May ask detainee to identify themselves
(2) FRISK—reasonable suspicion detainee may be armed and presently dangerous frisk detainee for weapons
a. “Frisk” = pat down of outer clothing—CANNOT reach into pockets or manipulate items
 b. Upon plain feel, may extract and seize what officer reasonably determines to be weapon or contraband
(3) Automobile Stops—may stop car if reasonable suspicion to believe law has been violated
a. Seizure of all occupants (all have standing)
b. Dog sniff NOT search (if not unreasonably extended)
c. Dog alert probable cause for search
d. Officer’s reasonable mistake of law stop NOT invalid
e. Police roadblock need neutral standard for stopping
f. If reasonable suspicion occupants armed and dangerous:
i. Order out of vehicle
ii. Frisk
iii. Search passenger compartment for weapons
Exigent Circumstances
(1) Hot Pursuit—warrantless search and seizure if within 15 minutes behind fleeing felon
a. May pursue into any private dwelling (plain view evidence admissible)
(2) Evanescent Evidence—evidence may disappear if police took time to get warrant
(3) Emergency Aid—may enter premises (without warrant) if emergency threatens health or safety of individual or the public
Administrative Searches and Special Needs
(1) Searches of:
a. Prisoners before admitted into gen. pop.
b. Airline passengers prior to boarding
c. Government employees’ desks and file cabinets if reasonable in scope
(2) Drug tests of:
a. Railroad employees
b. Customs agents
c. Public school students in extracurricular activities
(3) Public school searches if reasonable grounds:
a. Moderate chance of finding evidence of wrongdoing;
b. Measures reasonably related to objectives; and
c. Not excessively intrusive in light of age sex of student, and nature of infraction

Searches in Foreign Countries—4th Am. does NOT apply to searches/seizures by U.S. officials in foreign countries + involving alien
Searches at U.S. Border
(1) Warrant, probable cause, reasonable suspicion NOT needed to conduct search at U.S. border
(2) At fixed checkpoint inside border, suspicionless stop for questioning and disassembly of vehicle allowed
(3) May stop vehicle inside border for questioning if officer reasonably suspects vehicle contains undocumented aliens

CONFESSIONS
6th Amendment Right to Counsel—attaches after formal judicial proceedings have commenced (indictment, formal charges) applies to all
critical states of criminal proceedings
(1) NOT applicable at certain stages:
a. Photo identifications
b. Handwriting or voice samples
c. Parole and probation revocation proceedings
d. Post-conviction proceedings
OFFENSE SPECIFIC
(1) Offenses different if each requires proof of different element
Waiver—knowing + voluntary
(1) Need not be in presence of counsel)
Remedy
(1) Non-trial proceeding harmless error rule
(2) Trial automatic reversal of conviction
Impeachment—statement obtained in violation may be used to impeach defendant
5th Amendment Miranda Doctrine
Custodial Interrogation
(1) Miranda warnings required ONLY IF detainee knows they are being interrogated by government agent
a. NOT necessary when detainee interrogated by informant whom they do not know is working for police
(2) CUSTODY—totality of circumstances:
a. Reasonable person would NOT have felt free to terminate encounter/interrogation and leave; AND
b. Environment presents same inherently coercive pressure as stationhouse question in Miranda
(3) INTERROGATION—any words or conduct police should have known was likely to elicit incriminating response
a. NOT spontaneous (unsolicited, voluntary) statements
b. NOT routine booking questions
Waiver—knowing + voluntary (totality of circumstances)
Invocation—must be explicit, unambiguous, and unequivocal
(1) Right to Remain Silent police must scrupulously honor
a. Merely remaining silent NOT sufficient to invoke
b. Police may reinitiate questioning if:
i. Wait significant amount of time (break);
ii. Re-Mirandized (fresh warnings); AND
iii. Questions limited to different crime
(2) Right to Counsel all questioning must cease until counsel
a. Unless detainee:
i. Waives right to counsel (reinitiates questioning themselves, voluntarily); OR
ii. Released and 14 days have passed
Effect of Violation Exclusionary Rule—evidence obtained in violation of Miranda inadmissible at trial
(1) Such statement may be used to impeach defendant
(2) Question-First, Warn Later inadmissible, if intentional
(3) Nontestimonial fruits of un-Mirandized confession evidence suppressed, only if failure to warn purposeful
Public Safety Exception—interrogation without Miranda warnings allowed if reasonably prompted by concern for public safety
Pretrial Identifications
6th Amendment Right to Counsel—NOT for photo identifications or when taking physical evidence (handwriting, fingerprints)
(1) Right to counsel at post-charge lineups/showups
(2) NO 5th Amendment Miranda right to counsel here
Due Process—identification violates due process if:
(1) Unnecessarily suggestive (by police); AND
(2) Substantial likelihood of misidentification
Remedies—unconstitutional pretrial ID exclusion of in-court ID
(1) Unless witness’s in-court ID is based on independent source

EXCLUSIONARY RULE
Scope of Exclusionary Rule
Exclusionary Rule—unconstitutionally-obtained evidence inadmissible at trial
(1) Exceptions to Exclusionary Rule Applicability: (GCP-KIMP)
a. Grand juries
b. Civil proceedings
c. Parole revocation proceedings
d. Knock & Announce violations
e. Impeachment of defendant
f. Misconduct only under state law or agency rules
g. Police’s good faith reliance on defective warrant except:
i. Affidavit so lacking in probable cause or particularity that no reasonable officer would have relied on it
ii. Lied to or misled magistrate when seeking warrant
iii. Magistrate biased (not neutral and detached)
Fruit of the Poisonous Tree (FOPT)—evidence obtained by using unconstitutionally-obtained evidence inadmissible
(1) Exceptions to FOPT: (CICI-KIM)
a. Cost of excluding > deterrent effect on police misconduct
b. Independent source
c. Connection too remote
d. Intervening circumstance breaking causal chain
i. Attenuation
ii. Intervening acts of free will (defendant’s)
e. Knock & Announce violations
f. Inevitable discovery (would have discovered anyway)
g. Miranda violation
Harmless Error Test—illegal evidence admitted, but conviction upheld because it would have resulted despite the illegal evidence
(1) Habeas Proceeding—petitioner released if they show error had substantial and injurious effect or influence on jury’s verdict
(2) Denial of right to counsel at trial NEVER harmless

PRETRIAL PROCEDURES
Pretrial Probable Cause Hearing—ONLY IF:
(1) Probable cause NOT already determined; AND
(2) Significant constraints on arrestee’s liberty
(3) MUST be held with reasonable time (48 hours)
Pretrial Detention—STATES create right to be released on bail (unless capital charge) refusal or excessive bail immediately appealable
Grand Jury Proceedings
(1) Conducted in secret
(2) NO right to: notice, counsel, or challenge subpoena under 4th Am.
(3) 5th Am. right to indictment by grand jury NOT incorporated

Speedy Trial (6th Am.)—ONLY attaches when D arrested or charge totality of circumstances
Factors (L-R-A-P)
(1) Length of delay
(2) Reason of delay
(3) Whether D asserted right
(4) Prejudice to D
Remedy—dismissal with prejudice
Exculpatory Evidence (Brady)—prosecution has duty to disclose material, exculpatory evidence to D
Failure to Disclose—violates Due Process Clause (whether willful or inadvertent) reversal of conviction, IF D can prove:
(1) Evidence is favorable to D; AND
(2) Prejudice has resulted (reasonable probability case would have been different if presented at trial)

TRIAL RIGHTS
Right to Fair Trial
Right to Public Trial—guaranteed by 6th & 14th Amendments
(1) Pretrial Proceedings presumptively open to public and press
(2) Trial press and public have 1st Am. right to attend trial
Right to Unbiased Judge—due process violated if judge has:
(1) Actual malice against D; or
(2) Financial interest in guilty verdict
Other Due Process Rights—violated if:
(1) Unlikely that jury gave evidence reasonable consideration
(2) D compelled to stand trial in prison clothing or visibly shackled (unless safety or escape concerns)
(3) Jury exposed to influence favorable to prosecution
Right to Trial by Jury
(1) ONLY serious offenses (imprisonment > 6 months)
(2) AT LEAST 6 jurors verdict must be UNANIMOUS
(3) NO right for—petty offense, juvenile delinquency, civil contempt
(4) Peremptory Challenges—any reason,
a. Except race or gender discrimination to challenge:
i. Show facts giving rise to inference of discrimination
ii. Provide race- or gender-neutral explanation
iii. Judge determines whether explanation is genuine
b. BUT entitled to racial prejudice questioning on voir dire if race bound up in case or interracial capital crime
(5) Challenges for Cause—juror should be excluded if juror’s views would prevent or substantially impair performance of duties
Right to Counsel
Violation
(1) At trial reversal
(2) Non-trial denial harmless error test
Right to Defend Oneself
(1) May waive right to counsel at trial IF:
a. Waiver is knowing, intelligent, and voluntary
b. D competent to proceed pro se
(2) NO right to self-representation on appeal
Effective Assistance of Counsel (6th Am.)—generally presumed
(1) Extends to first appeal
(2) Ineffective Assistive of Counsel—MUST show:
a. Deficient performance by counsel; AND
i. D must point out specific deficiencies
ii. Not based on—inexperience, lack of time to prepare, gravity of charges, complexity of defense, accessibility of witnesses to
counsel, trial tactics, or failure to raise constitutional defense later invalidated
b. But for deficiency, result would have been different

Conflicts of Interest
(1) Joint representation NOT per se invalid
(2) BUT, if attorney notifies court of conflict before trial, and court refuses to appoint separate counsel automatic reversal
Right to Confront Witness (Confrontation Clause)—6th Amendment grants criminal defendant right to confront adverse witnesses
(1) Criminal proceeding
(2) Testimonial hearsay evidence—no comprehensive definition
a. Includes—statements from prior proceeding under oath; statements to police about past acts; forensic lab results (person who
conducted or supervised must be available)
b. NOT—statements to police to aid in ongoing emergency
(3) Unavailable, adverse witness
(4) No prior opportunity to cross-examine about subject matter
(5) Forfeiture by Wrongdoing—forfeits right if own misconduct intentionally rendered witness unavailable
(6) Forfeiture by unruly & disruptive behavior, and refusing to heed court’s warning
Burden of Proof—Due Process Clause requires the state prove guilt beyond a reasonable doubt in all criminal matters
(1) Presumption of innocence (until proven guilty)
Jury Instructions—judge SHALL give jury instruction requested by either party IF instruction:
(1) Correct—based on good, sound law
(2) Not already given; and
(3) Supported by some evidence

GUILTY PLEAS & PLEA BARGAINING

Taking Plea
Voluntary and Intelligent—determined by judge:
(1) Address D personally, in open court, on the record (colloquy)
(2) Ensure D knows and understands:
a. Nature and crucial elements of charge
b. Maximum penalty, and mandatory minimum
c. D has right to jury trial and not plead guilty
Remedy—fail to meet standards withdrawal of plea, pleading anew
Attacking Plea
Immune from Collateral Attack—seen as intelligent choice
Can be SET ASIDE for:
(1) Involuntariness (failure to meet standards for taking plea)
(2) Lack of jurisdiction
(3) Ineffective assistance of counsel
(4) Failure to keep plea bargain
Plea Bargaining: Enforceability
(1) Plea bargain enforced against prosecutor and defendant
(2) Judge NOT required to accept plea bargain

SENTENCING & PUNISHMENT

Procedural Rights in Sentencing
(1) Right to counsel during sentencing
(2) Death penalty (capital) case more opportunity for confrontation
Rights Regarding Punishment (8th Amendment)
Cruel and Unusual Punishment—penalty grossly disproportionate to seriousness of offense committed
Death Penalty
(1) Murder—death penalty ONLY under clear, non-vague statutory scheme that gives the jury:
a. Ability to consider all mitigating evidence
b. Reasonable discretion
c. Full information concerning D
d. Guidance in making decision
(2) Rape or Felony Murder—NO death penalty if rape neither intended to, nor did result in death
(3) Sanity & Intellectual Disability—NO death penalty if person is insane at time of execution or intellectually disabled
(4) Minors—NO death penalty for person under 18 at time of offense
Life Without Parole for Minors
(1) Non-homicide LWOP prohibited
(2) Homicide LWOP allowed, but cannot be mandatorily imposed
Habeas Corpus Proceeding—technically a civil proceeding
(1) May ONLY bring habeas petition if in custody
(2) Indigent has NO right to appointed counsel at habeas proceeding
(3) Burden of Proof—petitioner must show by preponderance of evidence to show unlawful detention
Prisoners’ Rights
Due Process—prison regulations violate due process only if impose atypical, significant hardship based on ordinary incidents of prison life
4th Am.—NO reasonable expectation of privacy in prison cells
Access to Courts—MUST be given reasonable access to courts
1st Am.—regulation reasonably related to penological interests
(1) Incoming mail can regulate, broadly
(2) Outgoing mail cannot regulate
(3) Religion cannot interfere w/o compelling interest (Fed statute)
Medical Care—right to adequate medical care (8th Am. prohibition of cruel and unusual punishment)
NO Right to be Free From Disabilities Upon Completion—convicted felon may be unable to vote in state elections (during & after sentence)

DOUBLE JEOPARDY
5th Amendment Double Jeopardy—person may NOT be retried for same offense once jeopardy has attached
When Jeopardy Attaches
(1) Jury trial empaneling and swearing of jury
(2) Bench trial first witness sworn
(3) Juvenile proceeding commencement
(4) Jeopardy does NOT attach in civil proceedings (other than juvenile)
Exceptions Permitting Retrial
(1) First trial ends in hung jury
(2) Manifest necessity to abort original trial
(3) D successfully appeals, based on weight (not insufficient evidence)
(4) D breaches plea bargain—charges may be reinstated
(5) D elects to have offenses tried separately
Same Offense
(1) No double jeopardy issue if 2 crimes NOT same offense
(2) “Same offense” unless each requires proof of additional element
Lesser Included Offenses
(1) Attachment of jeopardy for greater offense bars retrial for lesser included offenses
(2) Attachment of jeopardy for lesser included offense bars retrial for greater offense
(3) New Evidence Exception—NO double jeopardy issue if:
a. Unlawful conduct used to prove greater offense has not:
i. Occurred at time of prosecution for lesser offense; or
ii. Been discovered despite due diligence
b. Similarly, retiral for murder permitted if victim dies after attachment of jeopardy for battery
Subsequent Civil Actions (OJ)—double jeopardy ONLY prohibits repeat criminal prosecution can still bring civil action after (and vice-versa)
Separate Sovereigns—NO double jeopardy issue for trials by separate sovereigns separate sovereigns CAN try D for same offense
(1) State and federal governments = separate sovereigns
(2) 2 states = separate sovereigns
(3) State and its municipalities = same sovereign

5th AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION

Who May Assert?
(1) Any natural person (not corporations/entities)
(2) Any type of case
(3) Only if answer might incriminate them—privilege is personal
When?
(1) May refuse to answer whenever response might furnish link in chain of evidence need to prosecute person asserting
(2) Must be asserted in civil proceedings to prevent waiver in subsequent criminal prosecution
Method for Invoking
(1) Criminal defendant right to not take witness stand at trial or be asked to do so
(2) Any other situation cannot avoid being witness or asked questions—must listen to questions and specifically invoke privilege rather than
answer
(3) Merely being required to give name in Terry stop does NOT violate 5th Amendment—poses no danger of incrimination
Scope of Protection
(1) ONLY Testimonial/Communicative Evidence—must relate factual assertion or disclose information
a. NOT physical/real evidence
b. Compulsory production or search and seizure of incriminating documents is permissible
(2) Violation—occurs when person’s compelled statements are used against them in criminal case
Comments on Defendant’s Silence
(1) Prosecutor may NOT comment on:
a. Defendant’s silence after receiving Miranda warnings
b. Defendant’s failure to testify
(2) D entitled to have judge instruct jury that they may not draw adverse inference from D’s failure to testify
(3) D chooses to remain silent before police read Miranda rights silence CAN be used against them in court
(4) Prosecutor impermissibly comments on D’s silence Harmless Error Test
Elimination of Privilege
(1) Grant of Immunity—compelled to answer if granted immunity
a. “Use and Derivative Use”—guarantees witness’s testimony and evidence therein will not be used against witness
i. May still be convicted from independent source
b. Immunized Testimony Involuntary—testimony obtained by promise of immunity is coerced and involuntary may NOT be used for
impeachment of defendant
c. Use of Testimony by Another Sovereign Prohibited—federal prosecutors may NOT use evidence from state grant of immunity, and
vice-versa
d. Immunity ONLY for offenses related to question NO immunity for perjury
(2) NO privilege against compelled self-incrimination if no possibility of incrimination
(3) Waiver—criminal D takes stand and is subject to cross
 EVIDENCE SHORT SHEET
RELEVANCE
Relevance—evidence is relevant if it has any tendency to make a material fact (fact of consequence) in the case more or less probable
Discretion (Rule 403 Balancing)—court discretion to exclude relevant evidence if its probative value is substantially outweighed by danger of:
(1) Unfair prejudice
(2) Confusing the issues
(3) Misleading the jury
(4) Undue delay
(5) Waste of time
(6) Unnecessarily cumulative
Similar Occurrences—evidence involving some time, event, or person other than that involved in present case is inadmissible Exceptions:
(1) P’s accident history—to show cause of P’s injury
a. P’s prior false claims to show claim likely false
b. P’s prior injuries of same body part + cause at issue to show P’s condition attributable to injury
(2) Similar accidents/injuries caused by same event/condition—to prove existence of dangerous condition, causation, or prior notice
(3) Absence of similar accident—to show lack of knowledge of danger
(4) Previous similar acts—to prove motive or intent
(5) Sales of similar property—to prove property’s value
(6) Habit—frequency of conduct + specific/particular circumstances as circumstantial evidence to show person acted in accordance with habit
on occasion at issue
(7) Industry custom—to show how should have acted (not conclusive)
(8) Any prior occurrence—to rebut claim of impossibility, or establish complicated issue of causation

PUBLIC POLICY EXCLUSIONS

Liability Insurance—inadmissible to prove fault; admissible to prove ownership/control or for impeachment
Subsequent Remedial Measures—inadmissible to prove negligence, culpability, or defect (manufacturing, design, information); admissible to
prove ownership/control, rebut non-feasibly of safer condition, or prove party destroyed evidence
Civil Settlements, Negotiations, Offers, Statements Therein—inadmissible to prove liability or amount of disputed claim, impeach witness by
PINS (ONLY IF disputed claim at time of settlement negotiations); admissible to impeach for bias, or if from civil dispute with government now
offered in criminal case
Plea Discussions—inadmissible: offer to plead guilty, withdrawn guilty plea, actual plea of nolo contendere, or statements of fact during plea
discussion/proceeding; admissible: actual guilty plea (not withdrawn) in related litigation
Payment of/Offer to Pay Medical Expenses—inadmissible to prove liability; admissible: admissions of fact accompanying payment/offer

CHARACTER EVIDENCE
Character Evidence—evidence of person’s character trait NOT admissible to prove person acted in accordance with such character trait, or has a
general propensity or disposition to do so
Methods of Proving Character ROSA—reputation testimony, opinion testimony, specific acts
SEE CHARACTER EVIDENCE CHART (BELOW)
Criminal Cases—character evidence inadmissible, unless D introduces own good character or V’s bad character (initial aggressor/self-defense)
(reputation/opinion testimony only) Prosecution can then rebut:
(1) Cross-Examine Witness—impeach: “have you heard” (reputation) and “did you know (opinion) questions about specific instances of prior
acts to impeach OR witness’s own prior bad acts (no extrinsic)
(2) Call Own Witness—reputation/opinion testimony to contradict
Rape Shield—any sexual misconduct proceeding, evidence of victim’s sexual behavior or sexual disposition is inadmissible, except:
(1) To prove someone other than D is source of physical evidence; or
(2) Sexual history between victim and D: prosecution for any reason; D to prove consent as defense
Civil Cases—character evidence to prove propensity/conformity is inadmissible, except—character is essential element of claim/defense
defamation, negligent hiring/entrustment, child custody
MIMIC: Non-Character Purpose—evidence of other crimes, wrongs, acts (prior specific acts) admissible on direct for any other purpose than
propensity/conformity
Motive
Intent
Mistake (Absence of)
Identity
Common Scheme/Plan
Sexual Misconduct Cases—evidence of D’s prior specific acts of sexual assault or child molestation admissible to show D’s propensity to
commit such acts, in any proceeding where D is accused of such acts

AUTHENTICATON, “WRITINGS”
Methods of Authentication
Opponent Admission—admits authenticity, or treats it as such
Eyewitness Testimony—anyone with personal, firsthand knowledge
Handwriting—law witness familiarity, expert witness comparison to samples, or fact-finder comparison to samples
Ancient Document—20+yo, non-suspicious condition, found in place likely kept
Reply Letter—written in response to communication to author
Photo/Video—witness identifies as fair and accurate portrayal of certain relevant facts
X-Ray, ECG, Etc.—accurate process, working machine, qualified operator, custodial chain (not tampered with)
Voice—anyone who has heard the voice at any time
Telephone Conversation—any party to the call testifies that:
(1) they recognized other party’s voice;
(2) speaker had knowledge of facts only particular person would;
(3) they called particular person’s number and voice answered as that person/person’s residence; or
(4) they called business and talked about matters relevant to business
Self-Authenticating Documents—extrinsic authenticity not required:
(1) Official (government) publications
(2) Domestic public documents bearing seal
(3) Certified copies of public/private records in public office
(4) Newspapers/periodicals
(5) Trade inscriptions/labels
(6) Acknowledged (notarized) documents
(7) Commercial paper
Best Evidence Rule—to prove the contents of a “writing” must produce original writing itself
(1) Duplicates admissible unless unfair, or genuine question as to authenticity (of either)
(2) Secondary evidence admissible only if adequate excuse for absence of original (loss/destruction, cannot be obtained)
Exceptions
(1) Voluminous Records—summaries of voluminous records, if inconvenient to present
(2) Public Records—public records certified or testified to as correct
(3) Collateral—writing of minor importance to matter in controversy
(4) Opponent’s Testimony, Deposition, Written Admission
WITNESSES
Competency—any witness is presumed competent (must have personal knowledge and give oath/affirmation to testify truthfully)
Certain Groups
(1) Children—capacity and intelligence of child (case-by-case)
(2) Insanity—understand obligation to speak truthfully and capacity to testify accurately
(3) Judge—presiding judge may not testify
(4) Jurors—may not testify before jury on which they are sitting MAY testify to:
a. Improper extraneous prejudicial information
b. Improper outside influence
c. Mistake on verdict form
d. Clear statement of racial animus to convict criminal D
Dead Man Acts—(some states) interested witness incompetent to testify against decedent’s estate regarding personal transaction or
communication with decedent
Leading Questions—suggest desired answer allowed only on cross, but allowed on direct if: (i) preliminary/introductory matter; witness needs
help responding due to loss or memory, immaturity, or physical/mental weakness; or (iii) witness is hostile or adverse
Cross-Examination—right to cross-examine opposing witness, but scope is limited to: (i) scope of direct; or (ii) testing credibility (impeach)
Refreshing Memory vs. Recorded Recollection
Refreshing Memory—ANY writing/object may be used to refresh witness’ present memory
(1) Witness may not read from writing itself while testifying
(2) ONLY adverse party can introduce writing into evidence
a. (offering party cannot introduce writing into evidence)
Recorded Recollection—record may be read into evidence if:
(1) Witness has insufficient recollection to testify fully and accurately, and showing record failed to refresh witness’s memory;
(2) Witness had personal knowledge of facts when made;
(3) Record made or adopted by witness;
(4) Record made when matter was fresh in witness’s mind; and
(5) Witness vouches for record’s accuracy
(6) ONLY adverse party can introduce record itself into evidence
Opinion Testimony
Law Witness—opinion admissible only if: (i) rationally based on witness’s perception; (ii) helpful to jury in understanding evidence or
determining fact in issue; and (iii) not based on scientific, technical, or other specialized knowledge
(1) Person’s appearance or condition; person’s state of emotion; rational/irrational nature of another’s conduct; person’s intoxication; sense
recognition; voice/handwriting identification; speed of moving object; value of own services/property
Expert Witness—opinion admissible only if: (i) expert is qualified through knowledge, training, education, or experience; (ii) helpful to jury in
understanding evidence or determining fact in issue; (iii) based on sufficient facts or data; (iv) product of reliable principles and methods; (v)
reasonably applied principles/methods to the facts
(1) Proper Factual Basis—personally observed; learned at trial; or of a type reasonably relied upon by other experts in the field
(2) Reasonable Probability—mere guess or speculation insufficient (but can testify to hypothetical questions)
(3) Daubert Factors—to determine reliability of expert’s principles and methodologies T.R.A.P.
a. Testing of principle or methodology
b. Rate of error
c. Acceptance by experts in the field
d. Peer review and publication
(4) Learned Treatises—any document that has established authority over time admissible to impeach experts on cross, read as substantive
evidence on direct, but not as exhibit itself
a. Must be established as reliable authority by: (i) some expert’s testimony, or (ii) judicial notice
b. Must be used in expert testimony—called to attention by expert on cross or relied upon by expert on direct

IMPEACHMENT
Impeachment—discrediting a witness (NOT offered substantively)
Credibility Attacked—generally, cannot bolster own witness’s credibility until after witness’s credibility has been attacked Except—witness’s
prior statement of identification
Any Party—any party may impeach a witness, even the party who called them
Ways to Impeach
(1) Cross-Examination—eliciting facts from witness that discredit their own testimony
(2) Extrinsic Evidence—calling other witness or introducing other evidence that discredits witness
Methods of Impeachment
Prior Inconsistent Statements—under oath, in for both
Bias/Interest—motive to lie (may use extrinsic evidence)
Prior Convictions—any felony punishable by 1+ year or any crime involving dishonesty (perjury, fraud, embezzlement, etc.; “crimen falsi”) BUT
no more than 10 years ago, unless substantial probative value
Sensory Deficiencies—no confrontation, extrinsic evidence admissible
Contradiction—after cross-exam, extrinsic evidence admissible (unless contradictory fact is collateral)
Prior Bad Acts—good faith basis for inquiry of prior bad act probative of witness’s character for untruthfulness bound by witness’s answer (NO
extrinsic evidence—cross-exam only)
Call Own Bad Reputation/Opinion Witness—reputation/opinion testimony as to earlier witness’s character for untruthfulness (NO specific
instances of misconduct)
Rehabilitation—may rehabilitate impeached witness, whose credibility has been attacked, by:
Explanation on Redirect—witness may explain or clarify facts brought out on cross-exam
Good Character for Truthfulness—other witnesses’ reputation or opinion testimony of impeach witness’s good character for truthfulness
Prior Consistent Statements (PCS)
(1) Express/implied charge witness has motive to lie Witness’s PCS made before creation of motive
(2) Impeached on grounds other than character for truthfulness Witness’s PCS, if tendency to rehabilitate credibility

HEARSAY
Hearsay—out-of-court statement offered to prove the truth of the matter asserted (by the declarant in the statement)
Statements Not Hearsay—(i) Verbal acts or legally operative words (accepting contract, defamatory words); (ii) Statements to show effect on
listener; (iii) Statements as circumstantial evidence of declarant’s state of mind
Non-Hearsay (Hearsay Exclusions)—statements which otherwise meet hearsay definition that the FRE specifically provide are non-hearsay
Prior Statements of Testifying Witnesses—now-testifying witness’s (subject to cross-exam) prior statement is not hearsay if:
(1) Prior statement of identification
(2) Prior inconsistent statement (given under oath)
(3) Prior consistent statement, offered either to:
a. Rebut charge witness is lying due to motive (and PCS was made before motive arose)
b. Rehabilitate credibility of witness impeached on grounds other than attack on character for truthfulness
Opposing Party Statements—ANY statement made by/attributable to a party is not hearsay when offered against that party:
(1) Party’s Own Statements—judicial or extrajudicial
(2) Adoptive Statements—express, or implied by silence (heard and understood, capable of denying, reasonable person would have denied)
(3) Vicarious Statements
a. Authorized Spokesperson
b. Agent/Employee—within scope of agency/employment
c. Partner—within scope of partnership
d. Co-Conspirator—during and in furtherance of conspiracy
Hearsay Exceptions: Unavailable Declarant—declarant unavailable if:
(1) Unable to testify due to death or physical/mental illness;
(2) Exempt from testifying due to privilege
(3) Refusal to testify (despite court order)
(4) Testifies they do not remember; or
(5) Absent (beyond reach of court’s subpoena)
(6) NOT unavailable if forfeiture by wrongdoing—proponent’s own misconduct intentionally rendered declarant unavailable
Former Testimony—statement under oath, adverse party had opportunity and similar motive for direct, cross-, or redirect exam
(1) NOT grand jury testimony (but admissible under PINS exception)
Statement Against Interest—statement against declarant’s pecuniary, proprietary, or penal interest when made
(1) Reasonable person would not have made unless believed true
(2) Personal knowledge of facts and aware statement was against interest when made
(3) Criminal case must be corroborated
(4) Only parts against declarant’s interest—other parts excluded
Dying Declarations—statement made when declarant believed death was imminent, about its cause/circumstances (ONLY homicide or civil)
Statements of Personal/Family History—statement about births, marriages,, genealogical status, etc. where declarant is member of family or
based on declarant’s personal knowledge of family reputation
Forfeiture by Wrongdoing—admissible if party’s own misconduct intentionally rendered declarant unavailable to testify
Hearsay Exceptions: Regardless of Availability
Excited Utterance—statement concerning starting event, made while still under stress of excitement/shock
Present Sense Impression—statement describes event, made while/immediately after declarant perceives it
Then-Existing Mental, Emotional, or Physical Condition—statement of declarant’s then-present mental (including motive, intent, plan),
emotional/sensory, or physical condition
Statement Made for Medical Diagnosis or Treatment—statement made to anyone (usually doctor) describing medical history, past or present
symptoms, or their inception/causes AND is made for, and is reasonably pertinent to, medical diagnosis or treatment
Recorded Recollection—see above (impeachment section)
Learned Treatise—see above (impeachment section)
Business Records—business’s records of any type admissible as proof of occurrence/nonoccurrence if T.R.U.M.P.
(1) Timely made (contemporaneously; at or near time of event)
(2) Routinely kept
(3) Under duty
(4) Made in regular course
(5) Personal knowledge
Public Records—same as business records
Ancient Documents—statements in authenticated documents prepared before January 1, 1998
Residual Exception—hearsay nevertheless admitted it:
Sufficient Guarantees of Trustworthiness—totality of the circumstances AND corroboration
Strictly Necessary—more probative than any other evidence proponent can reasonably produce
Reasonable Notice—in writing, before trial, with substance of statement and name of declarant
Confrontation Clause (6th Am.)—statement NOT admitted if:
Hearsay Statement
Criminal Case—offered against the accused
Unavailable Declarant
Testimonial Statement
(1) ANY sworn testimony
(2) Statements to law enforcement depends on primary purpose
a. Aid in ongoing emergency NOT testimonial
i. Nature of dispute (public vs. private)
ii. Whether perpetrator still at large
iii. Scope of threat to victim and public
iv. Type of weapon involved
b. Establish/prove past events Testimonial
i. Primary purpose to provide information for later prosecution (no emergency)
(3) Affidavits or forensic analysis written reports forensic analyst who performed test (or supervisor) must testify
No Opportunity to Cross-Examine—accused had no opportunity to cross-examine declarant about testimonial statement
Due Process Rights—hearsay and other exclusionary rules NOT applicable if it would deprive accused of right to fair trial or deny right to
compulsory process (critical to D’s case + sufficient assurances of trustworthiness)

PRIVILEGES
Attorney-Client Privilege—confidential communications, between attorney & client (or representative), during legal consultation (primary
purpose to obtain/render legal services) (unless waiver or exception)
Exceptions—future crime/fraud, legal services at issue, breach of duty in attorney-client dispute
Work Product Doctrine—anything prepared by attorney for own use in anticipation of litigation is NOT protected by ACP, but is NOT subject to
discovery, except if necessity
Psychotherapist-Patient Privilege—same as ACP (above)
Physician-Patient Privilege—(STATES ONLY) confidential information acquired by physician under professional relationship with patient, for the
purpose of, and necessary for, diagnosis or treatment
Spousal Privileges
Spousal Immunity—(CRIMINAL ONLY) spouse cannot be compelled to testify against other spouse in any criminal proceeding (regardless of
whether spouse is defendant)
(1) Only during valid marriage—terminates upon divorce
(2) Belongs to witness-spouse—cannot be compelled, but may choose to testify
Confidential Marital Communications—either spouse may refuse or prevent disclosure of confidential communications between spouses made
during a valid marriage
(1) Does NOT terminate upon divorce
(2) Private communications between spouses presumed confidential—"must be made in reliance upon the intimacy of the marital relationship”
Exceptions
(1) Communication/Acts in furtherance of future joint crime or fraud;
(2) Legal actions between the spouses; or
(3) Spouse charged with crime against testifying-spouse or either spouse’s children
 PROPERTY SHORT SHEET
CONCURRENT ESTATES
Joint Tenancy—2+ persons own with right of survivorship
Right of Survivorship—auto. transfer to other JT upon death LANDLORD-TENANT LAW
(1) MUST be clearly expressed Leasehold Estates
(2) Alienable/transferable during lifetime (inter vivos) Tenancy for Years—lease for known, fixed period of time
(3) NOT devisable/descendible (1) Termination—automatically on end date (no notice)
Creation—4 unities as time of creation (T-TIP) (2) Writing—required for term of years (> 1) under SOF
(1) At same time Periodic Tenancy—lease continues for successive intervals
(2) By same title (instrument) (1) Creation—express or implied (no mention of duration, oral term of
(3) With identical interests years, holdover)
(4) With rights to possess whole (2) Termination—notice from either party:
Severance—JT severed (terminated) TIC results a. Common law notice equal to length of period
(1) Sale—inter vivos sale or transfer of interest b. Month-to-month 1 month notice
a. Does not destroy JT for others c. Week-to-week 1 week notice
(2) Partition—3 types: d. Year-to-Year+ 1 month (Restatement); 6-months
a. Voluntary Agreement (common law)
b. Partition in Kind—physical division Tenancy at Will—no fixed duration of lease
c. Forced Sale—proceeds split proportionally (1) Creation—expressly stated otherwise, implied periodic tenancy
(3) Mortgage—depends (2) Terminable—terminable at will of either party, with notice and
a. Lien Theory (Majority)—execution of mortgage does NOT reasonable time to vacate
sever JT; severance only upon foreclosure sale a. Terminable by operation of law:
b. Title Theory (Minority)—execution of mortgage severs JT i. Either party dies
(4) Murder—one JT murders another severance ii. Tenant commits waste
Tenancy by the Entirety—ONLY married partners who take as “one iii. Tenant attempts to assign
person” with right of survivorship iv. Landlord transfers interest
Creation—presumptive in any conveyance to married partners v. Landlord executes term lease to third-person
Protected Co-Ownership Tenancy at Sufferance
(1) Creditors of only one spouse cannot reach TE property (1) Creation—tenant wrongfully holds over
(2) One spouse cannot unilaterally convey or encumber TE property (2) Purpose—permits landlord to recover rent (even though expired)
Severance—death, divorce, mutual agreement, joint creditor TIC (3) Termination—only lasts until landlord either:
results a. Evicts tenant (judicially); OR
Tenancy in Common—2+ persons own with NO right of survivorship b. Elects to hold tenant to new tenancy
Default Classification—presumptively take as TICs i. Residential Tenant periodic tenancy based on rent
Rights & Duties of Co-Tenants computation under original lease (monthly rent =
Possession—each co-tenant has right to possess and enjoy the whole month-to-month)
(1) Ouster—co-tenant wrongfully excludes from possession (requires ii. Commercial Tenant year-to-year periodic tenancy if
some physical act) original lease term 1+ years
a. Co-tenant’s own choice not to exercise right NOT enough c. NO notice of termination required
Rental Income—must share rental income from third parties Tenant’s Duties
proportionally among co-tenants Duty to Repair
Adverse Possession—cannot acquire whole title through adverse (1) Lease silent T maintain premises and make routine repairs
possession (unless ouster) a. Not ordinary wear and tear
Carrying Costs—each must pay proportional share (tax, mortgage) b. Must not commit waste
Repairs—each must pay proportional share of necessary repairs (with (2) Express covenant that T responsible to maintain
notice) a. Common law T responsible for any loss
Improvements—NO right to contribution for unilateral improvements b. Modern T not responsible and may terminate if
without consent destruction not T’s fault
(1) Improver pays loss/gets profit attributable to improvement Duty to Pay Rent
Waste—co-tenant must not commit waste 3 types: (1) Breach + T in possession LL can evict or continue relationship and
(1) Voluntary—willful destruction sue for rent (NO SELF-HELP)
(2) Permissive—neglect (2) Breach + T out of possession S-I-R
(3) Ameliorative—increases value a. Surrender—T’s implicit offer to surrender, which LL accepts
Partition—JT or TIC has right to bring action for partition (when co- b. Ignore—do nothing and hold T responsible for unpaid rent
tenants cannot come to agreement) c. Re-Let—re-let premises, hold T liable for deficiency
Encumbrance—JT or TIC can encumber own interest, but not other co- i. Majority—LL MUST try to re-let
tenants’ interests Fixtures—chattel so affixed to land it has ceased being personal
Duty of Fair Dealing property and has become part of land
(1) T deemed to lack intent to permanently improve property may (4) Public Use Rule—LL leasing public space and should know T will not
remove annexed chattels, if removal does not substantially repair because of nature of defect and length of lease, is liable
damage premises or destroy chattel (5) Short-Term Lease of Furnished Dwelling—LL liable for any defects
(known or not) which proximately cause T injury
Modern: General Duty of Reasonable Care—LL liable for ordinary
negligence if notice of defect and opportunity to repair
Landlord’s Duties SERVITUDES
Duty to Deliver Possession—LL must put T in actual, physical Easements—grant of nonpossessory property interest that entitles
possession of premises at beginning of lease term holder to particular use or enjoyment of another’s land
Implied Covenant of Quiet Enjoyment—T has right to quiet use and Affirmative Easements—right to do something on servient land
enjoyment of premises without inference from LL Creation:
(1) Breach by Wrongful Eviction (1) Prescription—adverse possession (but not exclusive)
a. Actual Eviction terminates rent obligation (2) Implication—previous use apparent and continuous, expected to
b. Partial Eviction: continue (or subdivision plat; or profit à prendre)
i. By LL terminates entire rent obligation (3) Necessity—landlocked, no way out except easement
ii. By paramount title holder apportionment of rent (4) Grant—express easement (if more than 1 year writing, signed by
(2) Breach by Construction Eviction—LL’s breach renders premises owner of servient parcel)
unsuitable for occupancy Negative Easements—prevents servient landowner from doing
a. 3 elements S-I-N-G something on their land MUST BE IN WRITING
i. Substantial Interference (1) Generally—Light; Air; Support; Artificial stream water
ii. Notice—must notify LL Easement Appurtenant—benefits dominant parcel; burdens servient
iii. Goodbye—must vacate within reasonable time parcel (2 parcels involved) passes automatically with transfers of:
b. May terminate lease and seek damages (1) Dominant parcel, regardless of notice
c. Acts of Other Tenants—LL not liable 2 exceptions: abate (2) Servient parcel, unless new owner is BFP without notice
nuisance on site & control common areas Easement in Gross—benefits particular holder; burdens servient parcel
Implied Warranty of Habitability—premises must be fit for basic (only 1 parcel involved) ONLY transferrable for commercial purposes
human habitation/meet bare living requirements (NONWAIVABLE) Surcharge—if easement’s scope exceeded “surcharged”
(1) Remedies for breach MR3 (any) (1) Servient landowner may enjoin excess use and sue for damages (if
a. Move out and terminate lease harmed) easement NOT terminated
b. Repair and deduct cost from rent Termination—E.N.D.C.R.A.M.P.
c. Reduce rent or withhold all rent (place in escrow) (1) Estoppel—servient owner materially changes position in
d. Remain in possession and sue for money damages reasonable reliance on easement holder’s assurances
Civil Rights Act—bars racial/ethnic discrimination in sale/rental of all (2) Necessity—necessity that created easement ends
property (3) Destruction—of servient land
Fair Housing Act—protects tenants from discrimination based on (4) Condemnation—of servient estate by eminent domain
race/color/religion/national origin/sex/disability/familial status (5) Release—written release by easement holder to servient
(1) Exceptions—FHA does NOT apply to: landowner
a. Owner-occupied building with ≤ 4 units (6) Abandonment—intent to never use easement again, shown by
b. Single-family homes sold/rented by owner with ≤ 3 single- physical action of easement holder (mere words not enough)
family homes (7) Merger—titles to easement and servient land owned by same
(2) Must allow disabled T to make reasonable modifications to person (duration of servient estate ≥ dominant estate)
premises to accommodate disability (at T’s expense) (8) Prescription—adverse possession (but not exclusive)
Transfer of Leasehold—if lease silent, T may freely transfer interest Licenses—mere privilege to enter another’s land for specified purpose
Assignment—T transfers whole interest (entire rest of lease) Creation—written or oral
(1) Assignee + LL privity of estate Revocation—freely revocable at will of licensor (unless
(2) Original T + LL privity of contract (remains liable) estoppel—licensee invested in reasonable reliance)
Sublease—tenant transfer less than whole interest (only part of lease) Profit—entitle holder to enter servient land and take resources from it
(1) Sublessee + LL NO privity same rules as easements
(2) Original T remains solely liable Covenants—promise to do something (affirmative) or refrain from
Covenants Against Assignment/Sublease doing something (negative) related to land
(1) LL aware of assignment, but does not object WAIVED Money Damages Covenant
(2) Strictly construed—assignment prohibition ≠ sublease prohibition Burden to Run W.I.T.H.N.
(3) Breach transfer NOT void, BUT LL may terminate lease or sue for (1) Writing
damages (2) Intent
Landlord Tort Liability (3) Touch & Concern
Common Law: Caveat Lessee—T beware; LL no duty to make safe 5 (4) Horizontal & Vertical Privity
Exceptions (C-L-A-P-S) a. Horizontal—nexus b/w original parties succession of
(1) Common areas—LL must maintain estate at time formation (grantor-grantee, etc.)
(2) Latent defects—LL must warn T of hidden defects LL has/should b. Vertical—non-hostile nexus b/w successor in interest and
have knowledge of original party
(3) Assumption of Repairs—once undertaken, LL must complete repair (5) Notice
(no duty to repair, but liable for negligent repairs) Benefit to Run W.I.T.V.
(1) Writing known/reason to know (general disclaimer not sufficient—must be
(2) Intent specific)
(3) Touch & Concern NO Implied Warranty of Fitness/Habitability Caveat Emptor—buyer
(4) Vertical Privity (only) beware
(1) Exception New home construction (seller = builder)
Timing—presumption time is NOT of the essence in real estate
Equitable Servitudes—promise (covenant) enforced by equity contracts (unless expressly stated or implied under circumstances)
Injunction (Equitable Remedy) Equitable Servitude Closing—contract dies, merges with deed, deed now controls
Creation (that Runs) W.I.T.N.E.S. Lawfully Executed and Delivered
(1) Writing (but not always—can be implied) (1) Executing valid deed requires:
(2) Intent a. Writing signed by grantor
(3) Touch & Concern b. Unambiguous description of land
(4) Notice c. Identification of parties (by name or description)
(5) Equitable Servitude! d. Words of intent to transfer (e.g., “grant”)
(6) (NO privity required) e. If any missing, title NOT transferred
Implied Common Scheme Doctrine: (2) Delivery—deed not effective until delivered grantor’s present
(1) Subdivider had common scheme of residential development for intent to pass title (even if possession postponed)
ALL parcels (negative covenant in deeds), including D’s lot; AND a. Acceptance presumed
(2) D had notice of covenant in prior deeds when it took b. Rejection defeats delivery
Equitable Defenses to Enforcement Quitclaim Deed—NO covenants/promises
(1) Changed Circumstances—so significant and pervasive that entire Special Warranty Deed—ONLY present covenants; no future covenants
area has changed, making enforcement inequitable General Warranty Deed—warrants against all defects in title, including
Adverse Possession—possession for statutorily defined period can, if from grantor’s predecessors
elements met, ripen into title (not marketable until quiet title action) (1) Present Covenants
Continuous—continuous/uninterrupted, as owner might use a. Seisin—grantor owns estate
(1) Tacking—can tack time onto predecessor’s if privity (any non- b. Right to Convey—grantor has power to transfer
hostile nexus; no ouster) c. Against Encumbrances—no servitudes or liens
(2) SOL—begins to run when trueowner can first bring suit (2) Future Covenants
a. Filing suit does NOT stop period from running a. Quiet Enjoyment—won’t be disturbed by third-party claims
b. Owner’s disability at start of adverse possession tolls b. Warranty—grantor will defend against reasonable title
c. Owner’s successor in interest’s disability does NOT toll claims and compensate for any loss
Open & Notorious—occupation sufficiently apparent to put true owner c. Further Assurances—grantor will do whatever is needed to
on notice that trespass is occurring (would find upon inspection) perfect title in the future
Actual—actually occupy = kind of use true owner would make Bona Fide Purchaser (BFP)—purchaser (or mortgagee), for value,
Exclusive—not sharing with true owner or public without notice of prior conveyance
Hostile—without permission/consent from true owner Actual Notice—learned/knew of prior conveyance before closing
(1) Adverse possessor’s state of mind irrelevant Inquiry Notice—what a reasonable inspection would have revealed
Record Notice—deed/mortgage properly recorded in chain of title
LAND CONVEYANCES & RECORDING Recording Statutes
Land Sale Contracts Race—first to record wins
SOF Requirements—writing, signed by party to be bound, identify Notice—last BFP wins
parties, adequately describe property, include price Race-Notice—subsequent BFP who records first wins
(1) Inaccurate description of land specific performance with pro rate Chain of Title Problems
deduction in price (1) Shelter Rule—anyone who takes from BFP takes BFP’s status;
(2) Exception Doctrine of Part Performance: steps into shoes of BFP (even if transferee had notice)
a. Oral contract certain and clear; AND (2) Wild Deed—recorded deed not connected to chain of title does
b. Possession, payment, substantial improvements (2 of 3) NOT give constructive (record) notice not valid until missing deed
Doctrine of Equitable Conversion—once contract signed equitable recorded
title (risk of loss) passes to buyer (3) Estoppel by Deed—fraudulently conveys realty, but later acquires
Implied Promise to Provide Marketable Title—seller must provide title estopped from denying validity of earlier conveyance
marketable title on day of closing (has up until then to fix any defects) Mortgages—debt + lien (MUST be in writing)
(1) Marketable title = reasonably free from doubt & threat of litigation Transfer of Interests
(2) Common defects—NOT marketable if: (1) Mortgagee can freely transfer interest (indorsing note and
a. Defect in record chain of title delivering; or executing separate assignment document)
b. Encumbrances (2) Mortgagor buyer either assumes or takes subject to mortgage
c. Existing zoning violations a. Assumption buyer personally liable on mortgage
d. Future interest held by unborn/unascertained parties b. Subject to buyer not personally liable—mortgagee can still
(3) Remedy—notify seller and give reasonable time to cure if seller foreclose
fails to cure: rescission, damages, specific performance, quiet title Effect of Recording
a. Buyer may NOT sue after closing for unmarketable title (1) Notice buyer takes subject to mortgage if notice
Implied Promise to Not Make False Statements of Material (2) Race-Notice buyer takes subject to mortgage if notice +
Fact—seller liable for failure to disclose latent material defects mortgagee recorded first
 (1) Reasonable Use (Majority)—all share right to reasonable use of
water enjoinable only if interferes with use of other owners
(2) Natural Flow (Minority)—enjoinable if use results in material
diminution of water’s quantity, quality, or velocity
Prior Appropriation—right to use and divert water determined by
priority of any actual, beneficial use first in time, first in right
Airspace Rights—right to airspace above parcel not exclusive, but
Foreclosure—debtor defaults >> mortgagee forecloses (judicial action) entitled to freedom from excessive noise
>> property sold >> attorneys’ fees and foreclosure expenses >> PRESENT ESTATES & FUTURE INTERESTS
foreclosing debt (deficiency action if not enough) >> junior debt >> Present Estates
surplus to debtor >> senior debt remains on property Fee Simple Absolute—absolute ownership of potentially infinite
Priority duration, devisable/descendible/alienable “To A …”
(1) “First in time, first in right”—based on recording Fee Tail—passes automatically to lineal blood descendants, virtually
(2) Purchase Money Mortgage 1st priority (if recorded at all) abolished today “To A and the heirs of his body …”
Effect on Interests (1) FI: Reversion (held by grantor), or Remainder (held by third party)
(1) Junior Interests—terminated by foreclosure; paid in descending Defeasible Fees—all are devisable/descendible/alienable; NO absolute
order of priority with proceeds from sale restraint on alienation
a. Foreclosing party MUST give notice and include all junior (1) Fee Simple Determinable—durational language; condition
interests as parties to foreclosure proceeding subsequent causes automatic forfeiture “so long as/until …”
(2) Senior Interests—NOT AFFECTED by foreclosure; buyer at a. FI: Possibility of Reverter (held by grantor)
foreclosure sale takes subject to senior mortgages (2) Fee Simple Subject to Condition Subsequent—conditional
Right to Redeem language with reversionary right in grantor; terminated at
(1) Equitable Redemption—any time prior to foreclosure sale, debtor grantor’s option once condition occurs “ … but if XYZ occurs,
may redeem land by paying past due amount + accrued interest + grantor reserves right to re-enter and retake”
costs (acceleration clause—must pay entire amount) a. FI: Right of Re-Entry
a. NO clogging equity of redemption—debtor cannot waive (3) Fee Simple Subject to Executory Limitation—condition
right to equitably redeem in mortgage itself subsequent causes automatic forfeiture in someone other than
(2) Statutory Redemption—fixed period after foreclosure sale, debtor grantor “To A, but if XYZ occurs, then to B”
may redeem land by paying foreclosure sale price a. FI: Shifting Executory Interest
(3) Redemption does NOT terminate junior interests Life Estate—measured by some life; life tenant entitled to ordinary use
and profits, but must not commit waste “To A for life [of B] …”
MISCELLANEOUS (1) FI: Reversion (held by grantor), or Remainder (held by grantee)
Zoning—government may enact statutes to reasonably control land (2) Must not exploit resources unless PURGE:
use (police powers) a. Prior Use—land was previously used for exploitation;
Variance—permission to depart from zoning restrictions must show: i. Open Mines Doctrine—may continue to exploit
undue hardship + no decrease in value to neighboring property existing mines, but cannot open new mines
Taking—existing uses deemed nonconforming by zoning ordinance b. Repairs—for reasonable repairs and maintenance
cannot be eliminated all at once without just compensation c. Grant
Cumulative Zoning—land zoned for particular use may be used for that d. Exploitation—land only suitable to exploit
or any higher use Future Interests in Grantor
Noncumulative Zoning—land may ONLY be used for particular use Possibility of Reverter—fee simple determinable automatic
zoned for Right of Re-Entry—fee simple subject to condition subsequent at
Condos, Homeowners’ Associations, & Cooperatives grantor’s option
Condos—each owns interior of individual unit plus undivided interest Reversion—other future interests in grantor for other present estates
in exterior and common areas Future Interests in Grantee
HOA—board oversees common elements, creates and enforce Remainders—life estate, fee tail
rules/covenants, conditions, and restrictions (CC&R) (1) Vested Remainder—created in ascertained person AND not subject
(1) Each condo owner is HOA member to any condition precedent
(2) Members vote to elect board a. Indefeasibly Vested—holder certain to acquire estate in
(3) Each member pays regular dues (fees), and HOA can impose future, with no conditions attached
additional one-time special assessment fee b. Subject to Divestment—remainder subject to condition
Cooperatives—title to land and buildings held by corporation that subsequent or executory limitation
leases individual apartments to shareholders (direct restraint on c. Subject to Open—remainder vested in class where
alienation valid) additional members can still join when class closes, any
Lateral Support member can demand possession
Natural State—landowner strictly liable if actions cause adjacent land (2) Contingent Remainder—created in unascertained persons OR
to subside subject to unmet condition precedent
Improved Land—landowner liable if negligent actions causes adjacent Executory Interests—future interest created in grantee, which is NOT a
land to subside (strictly liable if improvements did not contribute) remainder, and cuts short interest of some other person
Water Rights (1) Shifting Executory Interest—follows defeasible fee, and cuts short
Riparian—water belongs to bordering land another’s interest when condition met
(2) Springing Executory Interest—cuts short grantor’s possession
when condition met
Rule Against Perpetuities—No interest is valid unless it must vest, if at
all, not later than 21 years after life in being at creation of interest
(1) Fertile Octogenarian—presumes person is fertile no matter age
(2) Gift to open class conditioned on members surviving beyond age 21
violates RAP
(3) Executory interest with no time limit violates RAP
(4) Gift from one charity to another does NOT violate RAP

PROCEDURAL CONSIDERATIONS
Burdens of Proof
Burden of Production—party with burden of pleading, burden of
producing evidence sufficient to make prima facie case
Burden of Persuasion
(1) Civil preponderance of the evidence
a. Sometimes (fraud, oral contract to make will) clear and
convincing evidence
(2) Criminal beyond a reasonable doubt
Preliminary Fact Determinations
Credibility JURY—whether:
(1) Evidence is relevant at all
(2) Evidence is authentic
(3) Person was acting as party’s agent in breach of contract case
(4) Witness has personal knowledge of facts in their testimony
Admissibility JUDGE
(1) Facts affecting admissibility of evidence under FRE (witness
competent? privilege exist? hearsay? exception?)
(2) May consider any non-privileged, relevant evidence when making
preliminary fact determination (even if inadmissible at trial)
(3) Judge has discretion whether jury should be excused during
preliminary fact determination BUT, jury MUST be excused if:
hearing involves admissibility of confession; criminal defendant is
testifying and requests jury to be excused; or justice so requires
Judicial Notice—recognition of fact as true w/o formal presentation of
evidence may take jud. notice of any fact “not subject to reasonable
dispute”—generally known + can be accurately & readily determined
Civil judicially noticed fact is conclusive—jury instructed it must
accept as conclusive
Criminal judicially noticed fact is NOT conclusive—jury instructed it
may, but is not required to, accept as conclusive
Presumptions—rules that require a particular inference be drawn from
an ascertained set of facts
Civil can destroy presumption by producing evidence to rebut
Criminal no mandatory presumption—no evidence needed to rebut
Rule of Completeness—part/all of a record is introduced, adverse party
may require proponent to introduce any other part or related record
that ought in fairness to be considered at the same time
 TORTS SHORT SHEET
INTENTIONAL TORTS False Imprisonment—D’s act or omission that confines or restrains P +
Intentional Torts: Prima Facie Case—D’s act + intent + causation of P’s to bounded area
injury liable for all consequences, even if unintended/unforeseen Confinement—physical barriers, force, direct/implied threats of force
Act—voluntary movement by defendant (1) Length of confinement irrelevant
Intent—desire to produce legally forbidden consequence that is the (2) P must be aware of confinement, or harmed by it
basis of the tort Bounded—movement limited in all directions AND no reasonable
(1) D need NOT intend specific injury that actually results means of escape known to plaintiff
(2) Incapacity—NO DEFENSE (1) Unreasonable escape—dangerous, disgusting, humiliating, hidden
(3) Transferred Intent—D intends to commit torts against one person Shopkeeper’s Privilege—reasonable detention of reasonably suspected
but instead commits: shoplifter for reasonable period of time for purposes of investigation
a. Different tort, same person IIED—D’s extreme & outrageous conduct + P suffers severe emotional
b. Same tort, different person distress (DAMAGES REQUIRED)
c. Different tort, different person Extreme & Outrageous—exceeds all bounds of decency tolerated in a
d. Intent transferred from intended tort to committed tort civilized society can become outrageous if: continuous/repeated;
e. ONLY IF intended & resulting tort are one of following: common carrier/innkeeper; or P in fragile class (children, elderly,
i. Assault pregnant) and D aware of supersensitivities
ii. Battery Intent—recklessness is sufficient
iii. False Imprisonment Damages—REQUIRED; severe emotional distress
iv. Trespass to Land Trespass to Land—physical invasion + of P’s real property
v. Trespass to Chattels Physical Invasion—tangible invasion by person or object
Causation—D’s conduct was substantial factor in bringing about/legal Real Property—includes surface, airspace, subterranean
cause of injury Intent—ONLY intent to physically enter particular land (NOT intent to
Damages—NOT REQUIRED (except IIED, trespass to chattels, trespass or awareness of boundary)
conversion) Trespass to Chattels—D’s act causes small interference with P’s right of
Battery—harmful/offensive contact + with P’s person possession in chattel (DAMAGES REQUIRED)
Harmful Contact—causes actual injury, pain, disfigurement Intent—ONLY intent to do act which causes interference (NOT intent to
Offensive Contact—unpermitted & offensive to reasonable person trespass) mistake of ownership NOT a defense
P’s Person—anything P is touching, holding, connected to, etc. Remedy—cost of repair
Assault—reasonable apprehension in P + of immediate battery Conversion—D’s act causes significant interference with P’s right of
Apprehension—knowledge, awareness of threat (fear NOT required) possession in chattel (DAMAGES REQUIRED)
Reasonable—D’s apparent ability to commit (certainty NOT required) Intent—same as trespass to chattels
Mere Words—NOT sufficient (but can negate) Remedy—FMV (at time of conversion) OR replevin
Immediate—P must be aware they are about to become victim of
immediate battery DEFENSES TO INTENTIONAL TORTS
Consent—P’s valid consent + D within scope of consent
Capacity—must have legal capacity to consent (6) Firefighter’s Rule—NO duty owed to firefighters and police officers
Express Consent—except from mistake, fraud, or duress for risks inherent to jobs
Implied Consent—reasonable person would infer from custom/usage Negligence Per Se—D’s violation of criminal statute establishes duty
OR P’s manifestations (words, conduct, circumstances) & breach elements if: P member of class of persons intended to
Scope—D must not exceed scope of P’s consent protect + harm is type of harm intended to prevent
Protective Privilege—self-defense/def. of others/def. of property (1) STILL MUST prove causation and damages elements
Proportional—ONLY amount of force necessary under circumstances; (2) Exceptions—compliance more dangerous or impossible
must be proportional to amount of force threatened Duty to Affirmatively Act—NO affirmative duty to act or rescue BUT,
(1) Use of deadly force ONLY if life threatened; NEVER for property once D chooses to act/rescue, must act reasonable care
(2) NO duty to retreat (1) Exceptions—duty to act reasonably under circumstances if:
Timing—only to prevent immediate commission of tort (NO preemptive a. Special relationship (parent-child, common carrier, etc.)
action or revenge) b. Peril result of D’s conduct
(1) Defense of Property—must first request to desist or leave, unless NIED
futile or dangerous (1) Near Miss—P within zone of danger + P suffers physical symptoms
Reasonable Belief—must have reasonable belief threat of tort is (2) Bystander—P closely related to person injured + P present at
genuine reasonable mistake to threat allowed scene and personally observed/perceived event
Necessity—ONLY for property torts (3) Special Relationship (b/w P&D)—business relationship, highly
Public Necessity—property tort in emergency to protect community foreseeable D’s negligence would cause distress
from imminent public disaster absolute defense a. (patient/medical lab, customer/funeral parlor)
Private Necessity—property tort in emergency to protect limited BREACH of Duty—D’s act/omission, falls short of relevant standard of
number of people (including D himself) limited defense (D must pay care owed to P
compensatory damages) Custom or Usage—may be used to establish how reasonable person
would have acted under circumstances
NEGLIGENCE Negligence Per Se—see above
Elements—Duty + Breach + Causation (Actual/Proximate) + Damages Res Ipsa Loquitor—“the thing speaks for itself”; very occurrence of
DUTY—same care as reasonably prudent person acting under similar event tends to establish breach of duty:
circumstances owed to foreseeable victims within “zone of danger” (1) Accident would not normally occur unless negligence
(OBJECTIVE standard) (2) Negligence probably attributable to D (normally due to negligence
Exceptions of someone in D’s position)
(1) D’s Superior Skill/Knowledge—reasonably prudent person with Actual Causation—link between breach & injury
such superior skill/knowledge But-For Test—injury would not have occurred but for D’ breach of duty
(2) D’s Physical Characteristics—reasonably prudent person with (D’s act/omission)
same physical characteristics, if relevant to claim (blindness, etc.) (1) Several acts, each insufficient alone to cause, but combine to cause
Special Standards of Care (2) Counter-argument “even-if” test
(1) Children Substantial Factor Test—breach contributed to ultimate injury in
a. < 5yo NOT NEGLIGENT substantial/significant way
b. 5-18yo duty of care of child of like age, intelligence, and (1) Merged Causes—several causes, any one alone sufficient to cause
experience (SUBJECTIVE standard) (2) Breach able to cause entire harm = substantial factor
c. Adult activity (operating motorized vehicle) adult duty Unascertainable Causes—burden shifts to D to prove his breach is not
(2) Professionals—must exercise same care as average member of actual cause
profession (EMPIRICAL standard) (1) Multiple negligent acts, any one of which causes injury, but not
Premises Liability know which one
(1) Unknown Trespassers NO duty owed Proximate Causation—particular injury must have been a reasonably
(2) Known Trespassers duty to warn/make safe conditions highly foreseeable result of D’s act/omission
dangerous, concealed, artificial, known Intervening Forces—liable for injury caused by intervening force if such
(3) Licensees—non-economic/personal purposes (social guests) duty intervening force, and injury it caused, was a foreseeable result of D’s
to warn/make safe conditions hazardous, concealed, known act/omission
a. NO duty to inspect or repair (if warned) (1) Foreseeable intervening forces—medical malpractice; rescuer
(4) Invitees—economic purpose/land open to public duty to negligence; protection/reaction forces to D’s conduct; disease or
warn/make safe conditions hazardous, concealed, known/could accident cause by original injury
have learned upon reasonable inspection (2) Independent intervening forces—third person’s independent
a. Lose invitee status if exceed scope of invitation negligent or criminal act; act of God
(5) Attractive Nuisance—trespassing children duty of ordinary care Superseding Forces—NOT liable for intervening forces that produce
to avoid reasonably foreseeable risk of harm to children caused by unforeseeable results that break the causal chain between D’s initial
dangerous artificial conditions on property: negligent act and P’s ultimate injury
a. Landowner knows/should know of dangerous artificial Damages
condition on land Eggshell Skull Doctrine—take your P as you find them
b. Landowner knows/should know children might trespass on (1) P receives all damages suffered, even if surprisingly great in scope
land (2) ALL aspects of tort law (not just negligence)
c. Condition likely to cause injury because child’s inability to Contributory Negligence (minority)—if P’s negligence contributes to
appreciate risk or danger P’s own injury at, complete bar to P’s recovery
d. Balancing Test—expense to remedy vs. magnitude of risk
Partial Comparative Negligence (majority)—bar recovery if P’s Nuisance Remedies—damages; injunctive relief (if monetary damages
negligence > D’s negligence (if P’s negligence > 50%) unavailable/inadequate); abatement by self-help
Pure Comparative Negligence (ASSUME)—allow recovery no matter Nuisance Defenses
how great P’s negligence (1) Legislative Authority—not absolute, but persuasive
Assumption of Risk—P must have known risk + voluntarily proceeded (2) Coming to the Nuisance—only if sole purpose is of bringing
in face of risk harassing lawsuit
(1) Implied—knowledge implied where risk is one average person (3) Contributory Negligence—only if negligence case
would clearly appreciate (unless no available alternative)
a. Limitation on duty owed to P (foul ball at baseball game) VICARIOUS LIABILITY (RESPONDEAT SUPERIOR)
b. Comparative negligence (reduces P’s recovery) Employer-Employee—employer liable for employee’s tortious acts
c. Common carrier & public utility cannot limit liability by committed within scope of employment
disclaimer Detour—minor departure employer liable
d. Members of protected class by statute not deemed to have Frolic—major departure employer NOT liable
assumed the risk Intentional Torts—employer NOT liable for employee’s intentional
(2) Express—risk assumed by express agreement torts Exceptions—force authorized in employment; friction generated
(3) Intentional torts assumption of risk NOT a defense by employment; OR done to further employer’s business
Independent Contractors—principal NOT liable for tortious acts of
STRICT LIABILITY independent contractor (Agent) Exception—independent contractor
Animals causes injury within scope of employment (on business premises)
Domesticated Animals—NO strict liability unless owner had knowledge Car Owner-Driver—owner NOT vicariously liable for tortious acts of
of particular animal’s dangerous/vicious propensities driver Exceptions—family car; permissive use, for benefit of owner;
Wild Animals—owner strictly liable (except to trespassers) own negligence (negligent entrustment)
Trespass Parent-Child—parent NOT vicariously liable for tortious acts of child
(1) Owner strictly liable for reasonably foreseeable damage done by Exceptions—child’s willful and intentional torts (up to $10,000); child
trespass of his animals acting as agent for parent; own negligence (leaving child unattended)
(2) Owner NOT strictly liable for injuries his animals cause to
trespassers on his property (must prove negligence) MULTIPLE DEFENDANTS
Abnormally Dangerous Activities—accident must be related to Joint and Several Liability—P can recover full damages from any D
abnormally dangerous activity for strict liability Contribution & Indemnification—allocating damages between Ds
Requirements—foreseeable risk of serious harm (despite reasonable Contribution—claim by D who paid more than fair share under joint
care) + not matter of common usage in community and several liability against other Ds
Common Examples—blasting or manufacturing explosives; storing or Indemnification—shifting entire loss among tortfeasors; full
transporting dangerous chemicals; radiation/nuclear energy reimbursement to out-of-pocket D vicarious liability, strict products
Products Liability—D is merchant + product defective (manufacturing, liability for non-manufacturer
design, information) + not substantially altered since D’s control + P’s
foreseeable use of product at time of injury DEFAMATION
Merchant—usual, commercial seller of goods in question; entire Defamation Elements—defamatory statement + identifying P +
distribution chain (manufacturer, distributor, wholesaler, retailer) published to 1+ third persons + falsity + fault + damages
(1) Privity of contract NOT required for strict products liability Defamatory Statement—factual representation reflecting adversely on
Manufacturing Defect—product different/more dangerous than character/reputation (NOT OPINION)
properly made products product fails to perform as safely as ordinary (1) Opinion actionable only if appears based on facts
consumer would expect (2) Name calling/insult ≠ defamatory
Design Defect—risks associated with design outweigh utility of design (3) ONLY living persons can be defamed
must show safer, practical, economically feasible alternative design Specifically Identify—any identifying info. sufficient for reasonable
(1) Practical = no serious impact on utility person to understand defamatory statement referred to P
(2) Economically feasible = no serious impact on price Publication—communication of defamation to 1+ third person who
(3) Noncompliance w/ government safety standards defect understands it
Information Defects—fails to give adequate instructions/warnings for (1) Publication can be intentional or negligent
risks involved in using product prominent, comprehensible, provide a. Intent to publish—NOT intent to defame
information about mitigating risk (2) Each repetition = separate publication
Not Substantially Altered—presumed if normal distribution channels Falsity—P must prove falsity in case-in-chief
Foreseeable Use—NOT intended or appropriate use; misuse can be Fault—depends on P’s status:
foreseeable (1) Private person negligence
NUISANCE (2) Public official/figure actual malice—knowledge or reckless
Private Nuisance—substantial, unreasonable interference with disregard as to falsity
another’s use/enjoyment of their real property Damages—to P’s reputation
(1) OBJECTIVE—substantial interference to reasonable person (1) Libel—defamation in permanent form (written, printed)
(2) Minor interference NOT enough; more than mere annoyance; damages presumed
“intolerable” (2) Slander Per Se—words so clearly defamatory ordinary person
Public Nuisance—unreasonably interferes with health, safety, or would understand injury damages presumed
property rights of community a. SPS Categories—business/profession; serious crime; serious
sexual misconduct; loathsome/contagious disease
(3) Other Slander—P must prove economic harm
Defenses to Defamation
(1) Consent—complete defense
(2) Truth—complete defense
(3) Privilege
a. Absolute Privilege—spousal privilege; officers of
government w/ official work (judges, lawyers, legislators,
executive officials)
b. Qualified Privilege—arises ONLY IF public interest in
encouraging candor + good faith + relevant in scope
i. (letter of recommendation, statement to parole
board about prisoner)

INVASION OF PRIVACY
Appropriation—unauthorized use of P’s name/image/likeness for
commercial purpose Newsworthiness Exception
Intrusion—invasion of P’s seclusion in a way highly offensive to
reasonable person + P has reasonable expectation of privacy
Public Place—NO reasonable expectation of privacy
False Light—widespread dissemination (to public at large) of material
falsehood about P that would be highly offensive to reasonable person
Disclosure—widespread, public dissemination of private, confidential
info. about P (not public concern) that would be highly offensive to
reasonable person Newsworthiness Exception
Defenses to Privacy Tort—consent, privileges (absolute/qualified—only
false light or disclosure)