Condensed-PMBR-Outline-of-CDs-All-MBE-Topics by mkelly110


									     PMBR CD Notes
I.   Contracts
      A.   Did the parties form an agreement?
             1.   Objective theory of K formation: Viewing the actions of the parties
                  as a reasonable person, was a K formed? Public policy tends to
                  presume that a contract was formed.
             2.   Was an offer made?
                    a. Objective (reasonable) present intent to form present K.
                            1.   State of mind: Hysterical, angry, etc. party may not
                                 have objective present intent.
                            2.   Preliminary negotiations: Discussion of possible
                                 future business. Usually doesn’t contain extremely
                                 specific terms.
                    b.    Content
                            1.   Essential terms of the proposal.
                                    a. Parties
                                   b.     Subject matter
                                    c. Time for performance
                                   d.     Price
                            2.   Offer totally silent on a term may be indefinite.
                                    a. Common law interprets silence to impose a
                                          reasonable term deduced from prior course
                                          of performance of the parties, or if none then
                                          general customs of the marketplace.
                                   b.     UCC between merchants: Merchants can
                                          agree to designate a term to be defined and
                                          determined in the future. Court will imply
                                          reasonable term if dispute occurs re: that
                    c. Communication of intent and content to offeree.
                            1.   Offeror must intend to communicate with specified
             3.   Acceptance
                    a. Offer still outstanding at time of acceptance?
                            1.   Offeror can explicitly limit life of the offer and
                                 means of acceptance in the offer.
                            2.   Lapse of time: Offer lives for a reasonable time.
                                 Consider perishability, volatility of price.
                            3.   Acceptance arriving after offer expires is a
                            4.   Death or destruction of subject matter terminates
                            5.   Death, insanity, or legal incapacity of either party.
                            6.   Illegality of proposed subject matter, prior to
                                 acceptance (revocation by law).

      7.    Rejection of offer by offeree.
      8.    Revocation by offeror prior to acceptance, even if
            offeror promises not to, unless:
              a. Offeree purchased option (a K)
              b.    Estoppell: Offeror promises to keep offer
                    open a week, and offeree relies to his
                    detriment on that promise.
              c. UCC: Merchant’s firm signed written offer,
                    even of offeree is not a merchant, for up to
                    90 days.
b.   Was the acceptance effective?
      1.    Present, unconditional, unequivocal ascent to each
            and every term of the offer.
              a. Common law mirror image rule: Acceptance
                    must not tamper with any of the terms of the
                    offer. If it does, acceptance is a counteroffer,
                    and original offer is destroyed. Offer not
                    destroyed if:
                       i. Offeror manifests willingness to
                             keep offer alive (revival of offer);
                      ii. Offeree merely proposes that offeror
                             explore different terms (but clearly
                             not rejecting offer); or
                     iii. Acceptance contains terms which
                             were not in the express offer but
                             which are implied by law.
              b.    UCC: If both parties are merchants,
                    acceptance forms a contract even if the
                    acceptance contains different terms (unless
                    offer was "take it or leave it" or acceptance
                    was explicit rejection with counteroffer),
                       i. Different terms consistent with offer
                             become part of K, unless offeror
                             rejects new terms.
                      ii. Different terms inconsistent with
                             offer become part of K only if
                             offeror ascents.
                     iii. Inconsistency: Materially shift
                             economic position, materially
                             reallocate risk, or impair remedies
                             otherwise available.
              c. Grumbling acceptance is a valid acceptance.
      2.    Contract formed when acceptance is dispatched via
            commercially reasonable manner, by at least as
            reliable as method used by offeror (otherwise K

                    formed upon receipt by offeror). Even if offeror
                    does not know acceptance has been dispatched.
      c. Unilateral K
              1.    Public policy tries to interpret all K’s as bilateral.
              2.    Once offeree begins efficient substantial
                    compliance, offeror can no longer revoke offer.
              3.    Acceptance can only be by total and complete
                    performance of designated act. Until that point,
                    offeree is not obliged to finish, and offeror is not
                    liable if offeree does not finish.
4.   Ambiguity, Mistake
      a. Ambiguity
              1.    When an essential term reasonably has either latent
                    (hidden) or patent (obvious) ambiguity to both
                    parties, no K is formed.
              2.    When an essential term reasonably has latent
                    ambiguity to one party and patent ambiguity to
                    another, the interests of the innocent party is
                    protected, and the term is defined by the innocent
                    party’s definition.
      b.    Mistake: Terms do not convey intention of one or both of
            the parties.
              1.    Mutual mistake about essence of K gives either
                    party the right to rescind the K.
              2.    Unilateral mistake of miscalculation leading to
                    unwanted bargain, or TP intermediary who screws
                    things (the message) up: No remedy if other party’s
                    expectation was commercially reasonable; can
                    rescind K if other party knew it was too good to be
              3.    No relief if party has made error in business
                    judgment (SOL)
5.   Parol evidence rule
      a. Written K exists, and litigation has ensued. One party wants
            to bring evidence of a term or understanding which is not
            found within the four corners of the document.
      b.    Writing must be integrated: Both parties must have
            intended the writing to be the full and final expression of
            the terms of the agreement.
      c. Is the evidence which the party seeks to bring related to any
            promise, representation or understanding between the
            parties which was arrived at prior to or contemporaneous
            with the formation of the integrated writing?
      d.    The parol evidence cannot be used to vary or add to the
            terms of the integrated writing. It can explain an ambiguity
            or explain a term.

              e.    Exceptions:
                       1.   Proof of fraud
                       2.   Proof of only partial integration (if the writing looks
                            incomplete on its face, or in CA upon proof of
                            credible explanation of why the otherwise
                            integrated writing was in fact not)
                       3.   Collateral agreement: Parties in fact formed two
                            agreements, and the parol evidence is the second
                            agreement. Parol evidence agreement must be of
                            less importance than the written agreement, and
                            terms cannot contradict integrated writing.
                            Documents must not be part and parcel of a single
                            business deal (some obvious division between the
B.   Is the agreement a K? Valuable consideration (focus)
       1.    A bargained for legal detriment on both sides of the exchange. My
             promise to perform (or not perform) an act which, but for this
             bargain, I am not legally obligated to perform (or not perform).
             Past consideration is insufficient.
               a. Not all of the acts have to be a legal detriment: Only one
                    within the K for each party.
               b.   Applies to both bilateral and unilateral K’s.
               c. If fiduciary or confidential relationship exists, the bargain
                    must be fair – not merely containing legal detriments.
       2.    Defenses re: consideration
               a. Want of consideration: Other party incurred no legal
                    detriment. Illusory promise (either no promise or pre-
                    existing duty). Defense to formation.
                       1.   Full (not part) performance of the agreement cures
                            the illusory promise.
                       2.   UCC and common-law Lady Duff Gordon case
                            eliminates this defense so long as the parties in
                            business transaction operate under a covenant of
                            good faith dealing.
                       3.   Pre-existing duty can be nullified by:
                              a. Any alteration to the duty
                              b.    If one party can’t perform due to
                                    unforeseeable major difficulty in
                                    performance (equitable rescission), other
                                    party can offer more money and agreement
                                    will be binding.
                              c. Accord & satisfaction: One party disputes
                                    duty to perform, other party pays more to
                                    secure duty, K is binding.
                              d.    UCC: If party cannot perform in good faith
                                    without additional money, and other party

                                  promises additional money, that promise is
              b.   Failure of consideration: Admits formation, but other party
                   has breached and consideration has failed, and therefore I
                   don't have to perform.
              c.   Inadequacy of consideration: The bargain was stupid. No
                   defense, unless fiduciary or confidential relationship.
C.   Defenses
      1.   Statute of frauds
              a. Oral K is fine, but π can’t recover for breach of K with
                  subject matter covered under SoF.
              b.  K subjects covered
                     1.   Real property or permanent fixture thereon
                     2.   Sale of goods if price > $500, except:
                            a. If seller has delivered and buyer has
                            b.    If both parties are merchants and a written
                                  confirmation of the terms sent by one party
                                  to another so long as no prompt objection by
                                  other party; or
                            c. Special custom made goods not suitable for
                                  ordinary resale.
                     3.   Any K incapable of being performed within one
                          year. N/A if any possibility of performing K within
                          one year, even if isn’t actually performed within
                          that year.
              c. Those subject matters require a memorandum of essential
                  terms signed by the party to be charged (∆ ). Need not be
                  the entire integrated K – all we are looking for is evidence
                  of the terms.
              d.  This is a personal defense for ∆ who can use to void the K,
                  if timely asserted.
              e. SoF applies to remedy at law, not equitable remedy, so if ∆
                  has partially performed, π can try to get equitable remedy.
      2.   Capacity of parties (makes K voidable)
              a. One of the parties is a minor. Exception if minor has
                  received benefits from K providing necessaries: food,
                  clothing, shelter, medical attention, in which case π can
                  recover in quasi-K for market value of benefits.
              b.  Lack of mental capacity, either permanent or temporary.
                  Exception if person has received benefits from K providing
                  necessaries: food, clothing, shelter, medical attention, in
                  which case π can recover in quasi-K for market value of
                  benefits. If drugs or alcohol caused the incapacity, if π
                  knew, π is SOL.

       c. Lack of capacity (agency)
3.   Content of bargain
       a. Illegality
              1.    If subject matter became illegal when offer was
                    outstanding but not accepted, offer is revoked.
              2.    If offer has been accepted, but K not fully
                    performed, party can claim objective legal
                    impossibility at common law, but UCC requires
                    merchant to try to find legal substitute which other
                    party accepts before avoiding liability.
              3.    If subject matter or performance is "intrinsically
                    illegal" (malum in se), K is void. Court would not
                    help with restitution.
              4.    If subject matter is not evil in itself, but merely
                    against a regulation (malum prohibito), K is void.
                    Court will help with restitution for market value of
                    services under quasi-K if π was unaware of
                    regulation, or even if aware of regulation if a
                    member of the class of people the regulation was
                    intended to help (i.e. child labor laws).
       b.    Unconscionability
              1.    Contrary to public policy, such as one party selling
                    something inherently dangerous who tries to
                    disclaim all warranties, or some K’s of adhesion.
              2.    Court can either void the K, or more likely
                    equitably "blue line" the K to eliminate the
                    oppression and surprise of the K.
4.   Tactics
       a. Fraud
              1.    Fraud-in-fact: Any contrivance to deceive victim
                    from even knowing a K existed.
              2.    Fraud-in-inducement: Victim was seduced into K by
                    lies or half-truths.
              3.    Fraud-in-execution: Victim enters into oral K
                    trusting that written K will represent oral, and signs
                    writing without reading.
       b.    Constructive fraud
       c. Duress
              1.    Personal: Physical or mental force makes K
              2.    Economic: Victim has desperate pressing need for
                    subject matter at the direct or indirect cause of other
                    party, and other party takes advantage of that need
                    with harsh and one-sided terms.
       d.    Overreaching
5.   Procedural unconscionability

              a.   K whose important terms are in legalese and fine-print,
                   targeted at consumers, intending to prevent victims from
                   understanding what they are consenting to.
      6.   Promissory estoppel
             a. No K need exist. Valuable consideration may not have
                   existed. No statute of frauds analysis.
             b.    π must show he has been unjustly impoverished due to
                   justifiable reliance on ∆ ’s promise.
                     1.    Promise reasonably foreseeable to induce reliance.
                     2.    π did actually reasonably rely on promise to his
                     3.    ∆ breached
                     4.    π was damaged. Remedy: Put π back where he was
                           before promise was made.
D.   Third party rights or duties (common law only)
      1.   TP beneficiary
             a.    Intended beneficiaries
                     1.    Status
                              a. Party "A" of K promised that performance
                                    would be delivered to TP
                             b.     Party "B" of K intended "A"’s performance
                                    to benefit TP.
                              c. Example: B calls A and pays A to deliver
                                    goods to TP.
                     2.    Rights are defined by terms of K.
                     3.    Rights vest when:
                              a. TP learns of K and changes position in
                                    detrimental reliance;
                             b.     TP brings suit to enforce rights; or
                              c. TP expressly consents to receive
                                    performance under K.
                     4.    Once rights are vested, K cannot be modified or
                           rescinded by parties.
                              a. Accord & satisfaction is not available.
                             b.     TP can bring suit for tortious interference
                                    with K rights against party trying to tamper
                                    with the K.
                     5.    Can bring suit to remedy breach of vested rights.
                              a. Any defense that ∆ would have had against
                                    another party to the K can be used against
                                    TP (i.e. no real K, other party had already
                                    breached by failure of consideration, statute
                                    of frauds, etc.).
                             b.     TP is vulnerable to counterclaims (breach by
                                    party A with recovery by party B will offset
                                    any recovery TP can get), but not setoffs.

                     c.    TP can never have any liability for the K –
                           only benefits.
                     d.    Party who paid for benefit to TP cannot
                           recover at law for breach: Only TP can. But
                           in equity, party can request specific
                           performance, or value of payment in quasi-
                           K, or in promissory estoppel. NO remedy
                           ever for party if TP has brought suit.
      b.   Incidental beneficiaries: Not an intended beneficiary. No
2.   Assignment of rights to TP
      a. One of the parties, after K, seeks to assign his right to
           receive performance or delegate his duty to perform to an
           assignee/delegate not mentioned in K.
             1.    Common law favors ability to assign and delegate.
             2.    Consent of other party to K not required.
             3.    Assignment or delegation is improper when result is
                   to prejudice performance owed to other party.
             4.    Oral is ok, and no consideration needed (but see
      b.   Present assignment: Manifestation of present intention by
           party to achieve present transfer of present rights to TP.
             1.    Rights transferred must be under a current K – not a
                   future one, unless existing economic relationship.
             2.    Subject matter must be clearly identified to TP.
             3.    Assigning party must not retain any powers.
      c. Operative?
             1.    Nonassigning party not bound if assignment
                   materially alters nature or extent of duties or risk
                   assumed. Example: Personal services usually can’t
                   be assigned, nor can insurance policy coverage.
             2.    Contract terms which restrict right to assign are
                   invalid if assignee is a BFP who is ignorant of the
                   prohibition term. Obligator must perform, but can
                   bring suit against assignor for breach of covenant
                   not to assign.
             3.    Contract terms which extinguish power to make the
                   assignment are enforceable. This can be done by a
                   rescission clause which revokes K upon assignment,
                   or a provision which treats assignment as triggering
                   an express condition subsequent which extinguishes
                   other party’s duties.
                     a. BFP assignee can sue assignor for breach of
                           implied warranty that assignor has right and
                           power to make present, operative

                                   assignment and won’t interfere with quiet
             d.    Revocable by assignor?
                     1.    Revocable if oral and no consideration.
                     2.    All other assignments are irrevocable.
                              a. No right to revoke if in writing and writing
                                   is delivered to TP, even if no consideration.
                             b.    No right to revoke if consideration was paid
                                   (BFP), even if assignment was oral.
                              c. TP who paid consideration can sue assignor
                                   for breach of implied warranty that assignor
                                   has right and power to make present,
                                   operative assignment and won’t interfere
                                   with quiet enjoyment.
                             d.    If multiple TP’s: Ones who paid value
                                   supersede those who don’t. Among value
                                   payers, in CA the first to provide notice of
                                   assignment to obligor wins; in the rest of
                                   America (the American Rule), the first
                                   person who paid consideration wins.
             e. Remedy
                     1.    If obligor breaches, only assignee can sue, because
                           assignee stands in the shoes of assignor. Any
                           defenses which obligor could have brought against
                           assignor can be used against assignee, including
                           setoffs which matured at time of notice and
      3.   Delegation of duties to TP
             a. Subsequent to formation, one party (delegator) finds TP
                   (delegate) to assume primary responsibility for value (K).
                     1.    Other party has an affirmative duty to cooperate in
                           receiving performance from TP.
                     2.    TP’s breach gives other party the right to sue either
                           TP as an intended beneficiary of the second
                           contract, or delegator under the first contract (in
                           which case delegator may implede delegate for
             b.    Delegation is null and void if materially prejudices or
                   threatens the commercially reasonable interests of other
E.   Maturity of obligations (conditions) (focus)
      1.   Conditions vs. covenants
             a. Conditions allocate risk in the event of breech and
                   determine breach.
             b.    Vague language is construed as a covenant.
      2.   Types

      a.    Preceedent
             1.   Contingency must be satisfied before absolute
                  present duty to perform the modified or dependent
                  promise. Shifts risk of breech to other party.
             2.   "I am not liable on this promise until …" or "I’ll do
                  B, provided that you do A" (A is both a covenant
                  and a condition)
             3.   If the condition is to be satisfied by the subjective
                  personal satisfaction (taste, aesthetics) of a party, in
                  good faith, then the test is whether a reasonable
                  person would be satisfied.
                     a. Exception: K names specific third party
                          expert to make a good faith professional
                          approval, if that person withholds approval
                          in good faith, condition not satisfied.
      b.    Concurrent
             1.   Contingency must be satisfied simultaneously with
                  maturity of liability.
             2.   Usually implied-at-law, not express. Used to
                  regulate performance when parties did not
                  otherwise specify.
             3.   If performance obligations are physically capable of
                  being performed at the same time, then mutual
                  tenders (ready, willing and able to perform) are
       c.   Subsequent
             1.   Always express, never implied.
             2.   Operates as an affirmative defense to breach.
             3.   Occurrence will extinguish a present liability to
                  perform promise.
             4.   Example: Your attempted assignment of rights
                  extinguishes my liability.
3.   Forms
       a. Express
      b.   Implied-in-fact
             1.    Inferred from physical necessity and reasonable
                   assumptions of the parties (you can’t paint a house
                   that just burned down – although that would not
                   cause a breach because no fault).
             2.    Promise to cooperate in good faith in receiving
                   other party’s performance.
       c. Implied-at-law (constructive): Applies when parties failed
           to fix an order of performance.
             1.    If performance can physically be rendered
                   concurrently, then performance is a condition

              2.     If one party’s performance takes time, and other
                     party’s can be performed quickly, the first party’s
                     performance is a condition precedent.
               3.    If terms set date for performance by one party but
                     not the other, first party must perform as condition
                     precedent to other party’s performance.
               4.    Substantial performance is adequate.
               5.    Conditions of exchange: Excuse or suspension by
                     material breach
               6.    Immaterial breach and substantial performance
               7.    Independent covenants
               8.    Constructive conditions of non-prevention, non-
                     hindrance, and affirmative cooperation
4.   Has the condition been satisfied?
       a. Express condition must be satisfied precisely.
       b.   Constructive conditions require only substantial
5.   Has the condition been excused?
       a. Doctrine of prevention: Party can’t hinder other party’s
       b.   Waiver: Once covenant or condition is knowingly waived,
            it cannot be reclaimed. Express or implied from behavior.
       c. Equitable estoppel: Can be reversed before other party
            relies to his detriment.
6.   Obligations of good faith and fair dealing in performance and
     enforcement of K’s
7.   Prospective inability to perform; effect on other party.
       a.   Anticipatory repudiation
               1.    Definite, unyielding refusal to perform is treated as
                     a breach, even before liability to perform matures.
               2.    His conditions precident are excused, my covenants
                     are discharged, immediate COA for breach exists.
                     Or, I can affirm the K in face of anticipatory breach
                     by notice that I am awaiting your repentance or
                     performance under the K.
      b.    Voluntary disablement
               1.    Credible information learned that other party has
                     taken some action which puts his performance
                     beyond his control.
               2.    All covenants of non-breaching party discharged;
                     non-breeching party must bring immediate COA.
               3.    Breaching party cannot remedy.
       c. Failure to give adequate assurances of performance
            (UCC only)
               1.    In face of reasonable insecurity that merchant seller
                     is unlikely to be able to perform, you can make

                         written demand for adequate assurances of
                         performance, and unless merchant gives adequate
                         assurances within commercially reasonable time,
                         you can treat as present breach.
                    2.   My covenants suspended pending receipt of
                         adequate assurances.
F.   Has nonperformance been excused?
      1.   Objective impossibility
             a. Subsequent to formation of bargain
            b.   Physical or legal barriers
             c. Objective: No person on the face of the earth could
      2.   Commercially impracticable.
             a. Cannot be performed except by economic expenditure
                 grossly beyond what is commercially reasonable.
            b.   Unanticipated by either party at formation date.
      3.   Frustration of purpose.
             a. Subsequent to formation of bargain, circumstances are such
                 that your performance is of no utility to me, and therefore I
                 seek to have my performance to you excused.
G.   Breach
      1.   UCC
             a. Duty to promptly inspect goods tendered.
            b.   Prompt and specific notice of nonconformance.
             c. Perfect tender rule
                    1.   Buyer may reject all, some or none of the goods for
                         any nonconformity, and pay for goods accepted.
                    2.   If seller tendered early, he has until K date deadline
                         to perfectly perform (unless he states he won’t), and
                         nonbreaching party must cooperate.
                    3.   If π got most of the goods, ∆ can request extra time
                         and π has to cooperate, but doesn’t have to
                         prejudice commercial interests.
                    4.   π must seek and follow ∆ ’s instructions re rejected
                         goods, and follow reasonable instructions at π ’s
                         expense, or use self help to preserve the rejected
                         goods to conserve commercial value (including
                         resale & cover, ∆ liable for costs).
            d.   Failure to follow above procedures = waiver.
      2.   Material
             a. Essence of the bargain
            b.   Breach results in immediate COA.
                    1.   Common Law: Non breaching party must stop his
                         performance, and must mitigate damages.
      3.   Minor

       a.   Impaired bargain only in insignificant sense re: quality,
            quantity or time.
      b.    Nonbreaching party must continue with performance. Sue
            for provable damages.
4.   Evaluation
      a. Commercially reasonable expectations of the parties
      b.    Consequenses of breach
      c. Effect of consequences on expectations
5.   Remedies (focus)
      a. Money damages
              1.    Loss of bargain (expectation): Puts π in position had
                    there been full and timely performance. Measured
                    by K-FMV.
                      a. Damages must have been directly caused by
                            breach. Costs of entering into K can’t be
                            recovered because they weren’t caused by
                      b.    Damages must have been reasonably
                            foreseeable at time of bargain as the
                            probable damages resulting from breech of
                            the terms of the K (or damages resulting
                            from special needs of party known to
                            breaching party).
                      c. π has duty to reasonably mitigate damages.
                      d.    Losses must be proven to a certain dollar
              2.    Nominal
                      a. $1 money damages.
                      b.    Equity, if no adequate remedy at law
                               i. Specific performance
                              ii. Injunction against breach
                             iii. Declaratory judgment
              3.    Restitution and reimbursement
                      a. Reliance: Out of pocket losses reimbursed,
                            based on theory of promissory estoppell.
              4.    Liquidated damages
                      a. Cannot be a penalty clause, which is void
                            against public policy.
                      b.    Breach must have been anticipated, and
                            foreseen that legal damages would not be
                            sufficient because amount would be difficult
                            to estimate, and therefore liquidated
                            damages are adopted as a remedy.
                      c. Damages must be remedial in nature: Not to
                            deter the person from breech.
      b.    Election of substantive rights and remedies

            c. Rescission and reformation
           d.     Remedial rights of defaulting parties
H.   UCC Applicability
      1.  Subject matter: Goods.
            a. Not any interest in land.
           b.     Not rendition of services.
            c. Not an intangible.
      2.  Parties
            a. Between merchants (default on the bar)
                   1.    A person who makes a livelihood by dealing in the
                         subject matter, or represents that he does.
                   2.    Triggers the harshest provisions of the UCC in
                         modifying the common law.
           b.     Between non-merchants, or merchant/non-merchant

II.   Criminal Law
       A.   Types of crimes
              1.   Felonies: Punishable by death or imprisonment of more than one
                   year, regardless of actual sentence.
                     a. Common law: Burglary, arson, robbery, rape, larceny,
                           murder, manslaughter, mayhem.
              2.   Misdemeanors: Punishable by fine or imprisonment of less than
                   one year.
                     a. Common law: Assault, battery.
                             1.   Therefore, murder during the course of a
                                  misdemeanor, including assault and battery, were at
                                  common law "misdemeanor murder" not "felony
              3.   Malum prohibitum
                     a. Forbidden by statute.
                     b.    Speeding, failure to register firearm
              4.   Malum in se
                     a. Evil in itself.
                     b.    Rape, DUI.
       B.   General principles & elements
              1.   Actus reus
                     a. Voluntary
                     b.    Conscious
                             1.   Not sleepwalking
                     c. Act
                             1.   No duty to render assistance to person in peril,
                                     a. Family relationship
                                     b.    Legal duty
                                              i. Lifeguard’s duty to save someone
                                             ii. Failure to file income tax (statute)
                                     c. Creation of peril
                                     d.    Assumption of care exists: Must follow
                                           though, and must not make situation worse
                                           than it was when you found it.
              2.   Mens rea: Guilty state of mind
                     a. Levels of mental state
                             1.   Intention
                             2.   Knowledge
                             3.   Recklessness: Conscious disregard of subjective
                                  awareness of substantial risk of death or serious
                                  bodily injury.

                    4.    Negligence
              b.  Requirement of intent
                    1.    Strict liability
                             a. No defenses, including mistake.
                    2.    Vicarious liability
                             a. One person, due to relationship with
                                   wrongdoer, is criminal liable.
                                      i. Boss liable for employee
                                     ii. Tavern owner responsible for
                                           bartender’s wrongdoing
                    3.    General intent
                             a. Rape, battery, arson, involuntary
                                   manslaughter, depraved heart murder.
                            b.     Intoxication is not a defense.
                             c. Mistake of fact is a defense so long as
                    4.    Specific intent
                             a. Larceny, burglary, false pretenses, theft,
                                   inchoate offenses, voluntary manslaughter,
                                   premeditated murder.
                            b.     Intoxication is a defense.
                             c. Mistake of fact is a defense, so long as
                                   honest, even if unreasonable.
      3.   Concurrence of actus reus plus mens rea
      4.   Causation
              a. Hastening the inevitable death of another is still murder.
              b.  Transferred intent: A’s intent to kill B is transferred to C
                  when the bullet misses B and kills C.
              c. Intervening acts
                    1.    Foreseeable intervening acts: Original wrongdoer is
                          criminally liable for consequences of his act, plus
                          acts of intervenor. It is foreseeable that a doctor or
                          nurse would be generally negligent in treatment.
                    2.    Unforeseeable intervening act: Breaks chain of
                          causation and relieves original wrongdoer of act. It
                          is unforeseeable that a doctor or nurse would be
                          grossly negligent in treatment.
              d.  Harm or injury suffered by victim
C.   Defenses
      1.   Insanity
              a. Bifurcated trial: First trial determines guilt, and if guilty,
                  second trial determines insanity.
              b.  Tests: Results in not guilty by reason of insanity, followed
                  by commitment of ∆ to mental institution.
                    1.    McNaughten (majority): Defendant relieved of
                          criminal responsibility if at time of commission he

                     had such a defect of reason from disease of the
                     mind (any mental abnormality) that he did not know
                     the nature and quality of the act he was doing, or if
                     he did know, he did not know what he was doing
                     was wrong.
               2.    Irresistable impulse: Defendant not guilty where
                     he had a mental disease which keeps him from
                     controlling his conduct.
               3.    Durham: Defendant not guilty if unlawful act was
                     the product of mental disease or defent.
               4.    Model Penal Code: No responsibility if at the time
                     of the conduct as the result of mental disease or
                     defect he lacked substantial capacity to appreciate
                     the criminality or wrongfulness of conduct or
                     conform conduct to requirement of law.
       c. Diminished capacity: As a result of mental defect or
             disease, ∆ did not have required state of mind required for
             the offense. Results in not guilty of offense charged, but
             found guilty of a lesser offense.
2.   Intoxication (drugs or alcohol)
       a. Voluntary: Defense to crime requiring specific intent if the
             intoxication prevents ∆ from formulating required intent or
       b.    Involuntary (taking substance without knowledge of nature,
             under duress, or pursuant to medical advice): Similar to
             McNaughted insanity test. Defense if it puts ∆ in such a
             state of mind that he cannot appreciate the nature and
             quality of act he was doing, or did not know the act was
3.   Infancy
       a. Common law
               1.    Children < 7 presumed to be without capacity.
               2.    Children 7 > 14 had rebuttable presumption that
                     they lacked criminal capacity.
               3.    Children > 14 held responsible as adults.
       b.    Modern law: Juvinile courts will handle the child, either
             concurrently with adult court or exclusively.
4.   Justification and excuse
       a. Self defense: ∆ has reasonable belief of imminent danger
             of unlawful bodily harm, ∆ may use amount of force
             reasonably necessary to prevent the harm.
               1.    Deadly force: Threatens death or serious bodily
               2.    Nondeadly force: Threatens only bodily injury.
       b.    Right of aggressor: Self defense is usually not available,
             but becomes available upon complete withdrawl from other

            party followed by attack by victim; or escalation of force
            by victim after aggressor’s attack attack.
       c. Defense of others
              1.    Maj. view is same as self defense where ∆ has
                    reasonable belief of imminent danger of unlawful
                    bodily harm against TP.
              2.    Min. view is "alter ego" where right to defend is
                    limited to situations where person being defended is
                    justified in using self-defense.
       d.   No duty for victim to retreat.
       e. Defense of property: No deadly force can be used.
            Reasonable nondeadly force not likely to use serious bodily
            harm can be used. No spring guns.
5.   Law Enforcement
       a. PD can use the amount of nondeadly force which he
            reasonably believes necessary to arrest or prevent escape.
            Deadly force can be used to prevent commission of
            dangerous felony or arrest person reasonably believed to
            have committed felony.
       b.   Private citizen can use reasonable amount of non-deadly
            force to prevent felony or misdomeanor, or to make an
            arrest where crime has been committed and citizen
            reasonably believes that person has committed the crime.
            Citizen can use deadly force only when dangerous felony
            has been committed and person who force is used against
            has in fact committed the felony.
       c. Resisting unlawful arrest: ∆ can use reasonable nondeadly
            force to resist unlawful arrest. Can resist lawful arrest by
            PD only if ∆ does not know arresting person is a PD.
6.   Necessity & Duress
       a. Necessity: ∆ reasonably believes that criminal conduct is
            necessary to avoid imminent injury resulting from natural,
            nonhuman sources. Example: Killing one person to save
            two others. Firefighter who destroys property to prevent
            greater spread. Does not encompass killing someone to
            save yourself.
       b.   Duress: ∆ reasonably believes only way to avoid unlawful
            threats of great bodily harm from another person or
            imminent death is to engage in unlawful conduct.
7.   Domestic authority: Parents or one in loco parentes may use
     reasonable force to promote child’s welfare.
8.   Entrapment: Intent to commit crime originated with law
     enforcement officers. Elements:
       a. Criminal design originated with law enforcement
       b.   ∆ not in any way predisposed to commit crime.
9.   Mistake

              a.  Mistake of fact is a defense if it negates a material element
                  of crime or specific mental state required for commiting
                    1.    Specific intent crime: Available even if
                          unreasonable, so long as honest.
                    2.    General intent crime: Available only if reasonable.
             b.   Mistake of law is no defense. Exceptions:
                    1.    When ∆ does not know act is a crime and notice of
                          act has not been made available to the public.
                    2.    When ∆ reasonably relies upon official statement of
                          law subsequently determined to be invalid.
      10.  Consent of victim
             a. Fraud or deceit negates the consent.
             b.   Battery, rape.
D.   Inchoate crimes; parties
       1.  Inchoate offenses
             a.   Solicitation
                    1.    Solicitation, enticement, advises, counsels another
                          person to commit an unlawful act.
                    2.    When the criminal act is completed, the solicitation
                          merges into the act.
             b.   Attempt
                    1.    Specific intent to commit target offense
                    2.    Substantial step in furtherance of the crime.
                          Preparation is not enough.
                    3.    When criminal act is completed, the attempt merges
                          into the act.
                    4.    Impossibility defense:
                            a. CL: Factual impossibility is no defense;
                                  legal impossibility is. [use this on the MBE]
                            b.    MPC: Impossibility is not a defense when ∆
                                  actual intent is to commit the criminal act.
             c. Conspiracy
                    1.    Specific intent to commit target offense
                    2.    Agreement between two+ individuals to commit
                    3.    Each coconspirator is liable for all foreseeable
                          crimes committed by other conspirators in
                          furtherance of conspiracy.
                    4.    Must have at least two guilty parties for a
                          conviction: If one of two parties is acquitted, the
                          other can’t be convicted.
                    5.    No merger with completed crime (exceptions
                    6.    Wharton Rule:

                             a.    Applies to bigamy, incest, adultery, dualing,
                                   and bribery.
                             b.    When the two participants are convicted, the
                                   conspiracy merges into the crime, and can’t
                                   convict for conspiracy and act due to double
                     7.    Defenses: Withdrawal is not a defense, unless party
                           informs all other conspirators and thwart the
                           success of the criminal endeavor.
      2.   Parties to crime
             a. Principle in the first degree: Perpetrator.
             b.    Accomplice: Aid, abet, or encourage in the commission of
                   the crime, with intent that the crime be committed.
                   Criminally liable for all consequences which are
                     1.    Principle in the second degree: Aids, abets,
                           encourages, and present during commission, but
                           doesn’t actually commit crime. Example: Getaway
                           car driver.
                     2.    Accessory before the fact: Aids, abets, encourages
                           commission of crime, but not present during
             c. Accessory after the fact: Obstructed justice. Assists
                   perpetrator after crime has been committed.
E.   Homicide
      1.   Intentional killings (1st degree)
             a. Premeditation or deliberation
      2.   Intent to inflict serious bodily injury (2nd degree)
      3.   Felony murder (1st degree)
             a. All participants held liable for murder for any murder that
                   occurs during the commission of a serious or inherently
                   dangerous felony (BARRK: Burglary, Arson, Rape,
                   Robbery, Kidnapping).
             b.    Causal connection between underlying felony and murder.
             c. Exception where the killing is a justifiable homicide, i.e.
                   where PD is the shooter.
      4.   Depraved heart murder (2nd degree)
             a. Unintentional killing resulting from ∆ ’s recklessness (100
                   MPH on a busy street; Russian roulette – survivor guilty;
                   firing gun near someone).
      5.   Involuntary manslaughter
             a. Criminal negligence: Gross or wanton negligence.
                     1.    Unintentional killing resulting from gross or wanton
                           negligent conduct (100 MPH on back country road
                           at 3am).
             b.    Unlawful act or misdemeanor manslaughter

                      1.   Assault or battery resulting in unintended death.
                      2.   Nondangerous felony (i.e. larceny) resulting in
              c. Failure to act when duty exits.
      6.    Voluntary manslaughter
              a. Intentional killing, such as in the heat of passion, or where
                   ∆ acts with reasonable (objective) adequate provocation
                   (although MPC is subjective).
              b.   Imperfect self-defense, such as where ∆ started
                   confrontation, or used excessive force.
F.   Other crimes
      1.    Assault and battery
              a. Battery: Unlawful application of force to the person of
                   another resulting in a touching. General intent crime: No
                   intent required, so long as careless or negligent.
              b.   Assault
                     1.    Attempted battery (maj): ∆ has specific intent to
                           commit battery.
                     2.    Intent to frighten (min): Unloaded gun.
                     3.    Aggrivated assault: Punished more severely. Assault
                           with loaded gun.
      2.    Mayhem
              a. Intent to maim or do bodily injury by act which either
                   dismembered or disabled use of bodily part.
      3.    Kidnapping
              a. Unlawful restraint of personal liberty by show of force, to
                   send victim into another location.
      4.    Rape; statutory rape
              a. Nonconsensual sexual intercourse with a woman against
                   her will.
              b.   Statutory rape is a strict liability crime. Mistake of age is no
      5.    Theft
              a.   Larceny
                     1.    Treaspassory (no permission) taking carrying away
                           (slight distance ok) of the personal property of
                           another with the intent to steal.
                     2.    Continuing trespass: Taking something without
                           intent to steal, or with permission, and later
                           deciding to steal it.
                     3.    Defense
                             a. Intent for temporary use followed by return
                                   within reasonable time.
                             b.    Finder of lost/mislaid property: Guilty only
                                   with intent to steal property at time of

                            finding, and either know or be able to find
                            out owner’s identity.
              4.   By trick: Taking is accomplished by lies, deceit or
                   false statements.
      b.    False pretenses
              1.   Similar to larceny by trick, but in larceny only
                   possession passes – not title. With false pretenses, ∆
                   gets possession and title.
              2.   Usually indicated by the exchange of money.
              3.   Intent to defraud victim.
              4.   Credit card fraud, mail fraud, confidence game
                   schemes, violation of blue sky laws (worthless
                   securities), bad checks.
      c. Embezzlement
              1.   Fraudulent conversion or misappropriation of the
                   personal property of another by one who is in
                   lawful possession (bailment).
              2.   Defenses
                      a. Claim of right
                     b.     Intent to return the property taken
      d.    Robbery
              1.   Tresspassory taking carrying away personal
                   property of another with intent to steal (same as
              2.   Taking is from victim’s person or presence
              3.   Taking accomplished by force or intimidation
                   (snatching is usually not enough, unless victim is
                   aware and resists). Intimidation must be threat of
                   immediate bodily injury or death – not future harm,
                   which arouses reasonable fear.
              4.   Armed robbery even if gun was a toy or unloaded.
6.   Receiving stolen goods
      a. Receiver has actual or constructive knowledge that the
            property is stolen.
      b.    Buying a TV for $5 out of the back of a van under
            suspicious circumstances is constructive knowledge.
7.   Burglary
      a. Breaking and entering of the dwelling house of another at
            nighttime with intent (at time of breaking and entering) to
            commit larceny therein.
              1.   Walking in a wide open door is not breaking, but
                   having to open the door any amount is breaking.
              2.   Constructive breaking: Entering by fraud,
                   intimidation, or chimney.
              3.   Dwelling house includes any place of human
                   habitation, including hotel or trailer. Barns would be

                           included as long as part of the curtilage of the main
                           house. Business included if usually slept in by
                           proprieter, or attached to residence.
      8.    Arson
               a. Malicious burning of the dwelling of another.
              b.     Does not have to be intentional: Malicious or recklessness
                     is enough.
               c. Charring is enough.
G.   Constitutional protection of accused persons (focus)
      1.    Arrest, search and seizure
      2.    Confessions and privilege against self-incrimination
      3.    Lineups and other forms of ID
      4.    Right to counsel
      5.    Fair trial and guilty pleas
      6.    Double jeopardy
      7.    Burden of persuasion: Beyond a reasonable doubt.
      8.    Affirmative defense requires ∆ to initially produce some evidence,
            then burden shifts to π to persuade beyond reasonable doubt.

III.   Torts
        A.   Intentional torts
               1.   Intent
                      a. Specific: ∆ acts with intent to cause consequences of act.
                      b.   General: Substantial certainty that ∆ ’s conduct will result
                           in commission of tortuous act.
                      c. Transferred: ∆ intends tortuous conduct against one party
                           but resulting harm is caused upon another. Only applies to
                           assault, battery, false imprisonment, tresspass to land or
                      d.   Minors and incompetents are held liable for intentional
               2.   Harms to the person
                      a.   Battery
                             1.    ∆ acts intending to cause an offensive or harmful
                                   contact with the person of another and an offensive
                                   or harmful contact results.
                             2.    Covers the person of π and anything that can be
                                   identified with the close person, such as clothing, or
                                   something grasped in the hand. Car is an extension
                                   of the person, so throwing a snowball at a car is a
                                   battery (assuming someone is in the car). Same with
                                   horse, chair.
                             3.    π need not be aware of contact or have damages.
                      b.   Assault
                             1.    ∆ acts intending to place π in imminent
                                   apprehension (fear not required) of unpermitted
                                   contact and π is placed in such apprehension.
                             2.    Awareness is required.
                             3.    Future threats lack imminency and are insufficient.
                             4.    Words alone are insufficient, unless accompanied
                                   by some overt act.
                             5.    Inability of ∆ to injure π is not relevant.
                             6.    Assault followed by battery merges into battery.
                                   Battery followed by assault is two separate torts.
                      c. False imprisonment
                             1.    ∆ intends to confine π within certain fixed
                             2.    ∆ ’s conduct does in fact cause such confinement by
                                   force, threats of force, or unlawful arrest.
                             3.    π is conscious or aware of confinement, or
                                   alternatively harmed by it.

                      a.  Some courts have held that minors and
                          incompetents don’t have to be conscious or
                          aware of the confinement.
            4.    Confinement can result regardless of how brief.
            5.    Shopkeeper’s privilege: Store can detain suspected
                  shoplifter if:
                    a. Reasonable grounds to believe theft has
                    b.    Detention conducted in reasonable manner;
                    c. Detention for reasonable period of time to
                          make investigation (conservative – 30 min
                          has been held to be too long.).
      d.  Infliction of mental distress
            1.    ∆ conduct must be extreme, outrageous, or reckless.
                  Not necessarily intentional.
            2.    π suffers severe emotional distress, such as:
                  Suffering, anguish, fright, horror, grief, shame,
                  humiliation, embarrassment, worry, nausia.
            3.    TP who witnesses physical harm and suffers
                  emotional distress can recover if TP suffers bodily
                  injury, or if:
                    a. TP is a close family member; and
                    b.    ∆ is aware or should have been aware of
                          TP’s presence.
            4.    Negligent infliction: Duty of care owed, foreseeable
                  π within zone of danger, ∆ ’s conduct merely
3.   Harms to property interests
      a.  Tresspass to land
            1.    On, above or below the land
            2.    Intentionally entering the land to another or causing
                  a thing or TP to do so.
                    a. Mistake as to ownership is no defense.
                    b.    Negligent or reckless entry: No liability
                          unless damage to land. Example: Negligent
                          car accident runs into yard.
                    c. No liability for accidents. Example: Golfer
                          hits ball straight down fairway, ball
                          ricochets off tree and breaks house glass.
            3.    Privileged entries (defenses)
                    a. Private necessity: Private trespass to avoid
                          private disaster: Airplane must make
                          emergency landing on someone’s crop – no
                          trespass liability, but liability for damage to

                      b.   Public necessity: Absolute privilege – no
                           trespass liability and no liability for damage
                           to land.
      b.   Trespass to chattels
             1.    Intentional intermedeling or damaging of another’s
             2.    Liability is for diminished value or cost of repair.
             3.    Degree of interference determines tort: Minor
                   interference is trespass, but destruction is
      c. Conversion
             1.    Intentional exercise of dominion or control over
                   chattel of another.
             2.    Substantial or serious interference with π ’s
                   ownership rights, measured by extent, duration and
                   damage of dominion.
             3.    Liability for full value of chattel because forced sale
                   is required.
             4.    Mistake is not a defense.
                      a. Discovery of mistake and immediate return
                           in same condition is not conversion, because
                           no substantial interference with ownership
4.   Defenses to claims for physical harms
      a.   Privileges and immunities
             1.    Protection of self and others, so long as belief of
                   imminent attack is reasonable.
                      a. Reasonable force in self defense or defense
                           of others can be used.
                     b.    Minority of states apply alter-ego rule
                           saying that you bear the risk that the person
                           you are defending doesn’t have the right of
                      c. No duty to retreat.
             2.    Protection of property interests
                      a. Reasonable force can be used, but not
                           deadly (i.e. spring gun).
                     b.    Recapture of chattels
                               i. If possessor got chattel by wrongful
                                    conduct, reasonable force can be
                              ii. If possessor got chattel by innocent
                                    conduct, only peaceful means can be
                                    used for recovery.
                             iii. Right to trespass if preceeded by

                     3.  Parental discipline: Reasonable force can be used
                         by parent and school.
                     4.  Arrest
                            a. Warrantless arrest can be made so long as
                                 misdeamenor which is breach of the peace
                                 committed in presence of arresting PD or
                                 private citizen. Absolute privilege.
                           b.    Warrantless arrest can be made if felony was
                                 in fact committed, and you have reasonable
                                 grounds to believe person arrested
                                 committed it. Absolute privilege if both
                                 conditions met.
                            c. PD has privilege to arrest so long as
                                 reasonably believes felony has been
                                 committed, and reasonable belief that the
                                 person committed the crime.
                     5.  Necessity
                            a. Public necessity: Absolute privilege: No
                                 liability for any damages.
                           b.    Private necessity: Incomplete privilege:
                                 Liability for damage, but not trespass.
             b.    Mistake
                     1.  Defense only if ∆ acts quickly to protect his own or
                         public interest.
                     2.  Mistake is no defense to trespass, battery,
             c. Consent
                     1.  One who consents to a tortuous act cannot later
                     2.  Consent can be express (fighting) or implied
                         (emergency room work on unconscious person).
                     3.  Exceeding consent: A person who consents can
                         complain if the tort exceeds the scope of the
                         consent. Example: Consent to fight, but not with
                         brass knuckles.
                     4.  Fraud or mistake can negate consent.
B.   Negligence (focus)
      1.    Duty of care
             a.    General duty of care
                     1.  If none owed, no tort exists.
                     2.  Must act as a reasonable, ordinary, prudent person.
                     3.  Must take precautions not to create unordinary risks
                         to others.
                     4.  No duty to take precautions against unforeseeable
                         events or risks.

      5.   Omissions: No legal duty to render assistance to
           someone in peril. Exceptions:
              a. Family relationship: Criminal and tort
                    liability for failure to act to protect family
              b.    K: Lifeguard (criminal and civil).
              c. Statute: Hit and run.
              d.    Voluntary assumption of care: Can’t place
                    victim in more perilous position than how
                    you found them. Must follow through with
                    rescue operation.
              e. Creation of peril
       6.  Good Samaritan: Licensed Dr’s, nurses who
           voluntarily render emergency treatment are exempt
           from liability for ordinary negligence, in some
           states. Liability still exists for gross negligence.
b.   Duty of care is owed only to foreseeable π ’s.
       1.  Rescuer is a foreseeable π and duty of care is owed
           to him. It is foreseeable that if your conduct is
           negligent and places someone in peril, a rescuer
           may be needed and may be injured.
       2.  Prenatal injuries: Duty of care owed to fetus (i.e.
           dr’s negligence), and prenatal injuries are actionable
           so long as fetus is born alive.
c.   Standards of care
       1.  Reasonable person: ∆ conduct measured against
           reasonable, ordinary, prudent person.
              a. Average mental ability is used. No
                    exceptions for insanity or stupidity.
              b.    ∆ ’s physical characteristics are used: Person
                    with physical handicap (blindness,
                    eyeglasses, wheelchair) must take those
                    necessities into consideration, and must use
                    reasonable aids.
       2.  Professionals with special skills
              a. Required to exercise knowledge and skill of
                    member of profession in good standing in
                    same or similar locale.
              b.    Possession of superior skill or knowledge
                    (specialist) may be held to higher standard if
                    holds himself out as having superior skill or
       3.  Child: Must conform to standard of care of a child
           of like age, education, intelligence and experience.
              a. < 4 y.o. usually doesn’t have capacity to be

      b.    When child engaged in adult activity
            (driving), child must use adult standard of
4.   Innkeeper/Common carrier: Liability for slight
     negligence by employees.
5.   Automobile driver duty to passengers
       a. Passenger is treated as a licensee, driver has
            duty to warn of known defencts, and use
            reasonable care in operating the vehicle.
       b.   State with guest statute: Driver need only
            refrain from gross, wanton, reckless
            conduct. No recovery for ordinary
6.   Bailments
       a. Gratuitious bailment: Loaning something to
            a friend. Owner (bailor) must warn bailee of
            known defects that exist.
       b.   Bailment for hire: Bailor must inspect
            chattel and make chattel safe for protection
            of bailee.
       c. Bailee need exercise only reasonable or
            ordinary care.
7.   Landowners/Possessors of land
       a. Trespassers
               i. No duty owed to undiscovered and
                    unanticipated trespassers
              ii. Duty to warn discovered or
                    anticipated trespassers of known
                    dangerous conditions on property.
                    No duty to warn re: obvious natural
       b.   Invitees: Customers in a store or buildings
            open to public. Duty to inspect and make
       c. Licensees: Permission to enter granted. Duty
            to warn of known dangerous conditions. No
            duty to inspect or make safe.
       d.   Attractive nuisance: Recovery if:
               i. Artificial dangerous condition on
              ii. Possessor/owner knows or has
                    reason to know children are likely to
             iii. Child subjectively fails to appreciate
                    danger or risks.

                               iv. Utility of maintaining danger is
                                   slight compared to risk involved.
                     e.    Public Employees
                              i. If employee comes onto property in
                                   connection with possessor’s
                                   business, treated as invitee. Example:
                                   Meter reader, postman, building
                                   inspector, garbage collector.
                             ii. Fireman and policeman treated as
                     f.    Liability of lessor of land
                              i. LL usually not liable to T or T’s
                             ii. LL must maintain common
                                   passageways in safe condition.
                            iii. Dangerous conditions eisting at
                                   commencement of lease which LL
                                   knows of which are unlikely to be
                                   discovered by T, LL liable.
2.   Breach of duty
      a. Show events leading up to injury
      b.   Show ∆ acted unreasonably
             1.   Violation of statute (negligence per se):
                    a. Statute must have been designed to protect
                          against that type of injury from occurring.
                    b.    π must be a member of the class of
                          individuals sought to be protected by the
             2.   Res ipsa loquitor: "The thing speaks for itself."
                    a. π must show that the incident causing injury
                          was not the type of incident that would not
                          normally happen if someone wasn’t
                    b.    ∆ was responsible for causing incident.
                          Exclusive control is one way of showing
                          responsibility, but not required.
                    c. Showing Res Ipsa will preclude a directed
                          verdict for the ∆ .
3.   Causation (must meet both types)
      a. Causation in fact (several methods):
             1.   But for ∆ ’s conduct, π would not have been injured
             2.   Actual cause of the injury
             3.   Direct cause of injury
             4.   Substantial factor
      b.   Proximate legal cause

              1.    In hindsight, looking at chain of events, as a matter
                    of policy, should ∆ be held legally responsible for
                    his actions and π ’s injury?
              2.    Limits
                       a. π must have been foreseeable π .
                      b.     Harm or injury must have been foreseeable.
      c. Harms traceable to multiple causes: All defendants held
           liable, and burden of proof on ∆ to show innocence.
      d.   Multiple tortfeasors
              1.    If tortuous acts of two+ parties caused indivisible
                    injury which isn’t capable of apportionment, ∆ ’s
                    are held jointly and severally liable.
              2.    Where divisible injury exists (can be apportioned
                    amongst the ∆ ’s), each ∆ is liable for their own act.
      e. Intervening cause
              1.    Intervening cause harms π after initial negligence
                    by ∆ .
              2.    ∆ is liable for injury caused by intervening cause if
                    intervening cause was foreseeable.
                       a. Medical malpractice (ordinary negligence
                             only – not gross negligence).
                      b.     Negligence of rescuers.
                       c. Subsequent disease or injury resulting from
                             original injury.
              3.    No liability if unforeseeable (superceding cause).
                       a. Acts of god, but N/A when ∆ engaged in
                             ultrahazardous activity.
                      b.     Criminal acts of TP’s
                       c. Intentional tortuous acts of TP’s
4.   Damages
      a. Types of damages
              1.    Actual damages must be proven, and are required
                    for a negligence suit.
              2.    Personal injury and property damage is recoverable
              3.    Nominal and punitive damages normally not
      b.   Collateral source
              1.    Payments received from π ’s insurance co. or
                    employment benefits are not deducted from ∆ ’s
              2.    Payments from ∆ ’s insurance co. do reduce ∆ ’s
5.   Defenses

              a.   Comparative negligence (majority): Apportion damages
                   based on degree of fault. ∆ ’s liability reduced by
                   proportion of π ’s fault.
                      1.    Modified: π ’s negligence must not be equal to nor
                            greater than ∆ ’s negligence.
                      2.    Contributory/Pure: π can recover even if his
                            negligence is greater than ∆ ’s.
              b.   Contributory negligence (minority): If π is even slightly
                   at fault (negligent), no recovery from ∆ . Exception: Last
                   clear chance doctrine – where ∆ had last clear chance to
                   avoid injury and failed to do so.
              c. Assumption of risk
                      1.    π voluntarily and knowingly (subjective) exposes
                            himself to risk of harm.
                      2.    May be in addition to to contributory negligence.
      6.    Limitations on liability and special rules of liability
              a. Claims against owners and occupiers of land
              b.   Claims for mental distress not arising from physical harm;
                   other intangible injuries
              c. Claims for pure economic loss
C.   Vicarious liability
      1.    Respondiat superior: Employer is liable for the acts of
            employees, servants and agents which occur in the scope of
              a. Exception: Intentional torts committed by employee, unless
                   in furtherance of employer’s business. Example: Bouncer
                   evicting patron from nightclub.
      2.    Independent contractors: Employee has no liability, except:
              a. Ultrahazardous activities
              b.   Nondelegable duty
              c. Negligent selection or hiring
      3.    Joint venture (more limited purpose than a partnership): Each
            member liable for conduct of other members.
      4.    Automobile owner generally not liable for tortuous conduct of
            someone else who is driving.
              a. Family car doctrine: Owner liable for tortuous conduct of
                   immediate family members driving with express or implied
                   permission of owner.
              b.   Permissive use doctrine: Owner liable for anyone using car
                   with permission of owner.
      5.    Parents
              a. No vicarious liability for negligence or torious conduct of
                   child, but may be liable for negligence for failure to
                   supervise or control child’s conduct.
      6.    Be sure to address indemnification of employer by employee

D.   Multiple ∆ issues
       1.    Joint and severable liability: Where combined negligent acts of ∆
             ’s cause indivisible injury to π , each ∆ is jointly and severably
       2.    Contribution and indemnity
                a. Contribution requires each tortfeasor to pay their
                      proportionate share. Cannot favor intentional tortfeasors.
               b.     Indemnity: Shifts loss from one tortfeasor who has been
                      required to pay to another who should bear the loss instead.
                         1.    Vicarious liability: Employer can seek
                               indemnification from employee.
                         2.    Strict products liability: π sues retailer for product
                               defectively made by manufacturer. Retailer is
                               indemnified by manufacturer.
E.   Survival & wrongful death
       1.    Tort actions survive π ’s death, except torts against intangible
             interests (defamation, right to privacy).
       2.    Wrongful death: Spouse or next of kin can bring suit for pecuniary
             injury resulting to spouse or next of kin for loss of support and loss
             of consortium. No pain and suffering.
F.   Strict liability
       1.    Ultrahazardous activities, even if ∆ exercises utmost care.
                a. Storage of explosives.
               b.     Blasting operations.
                c. Crop dusting with dangerous chemicals.
               d.     Fumigation of building using cyanide gas.
                e. Drilling oil wells in thickly settled communities.
                f.    Excludes: Fireworks, guns.
       2.    Wild animals (lion, bear, snake, sharks)
                a. Liability for injuries caused by the dangerous propensities
                      of the animal.
               b.     Includes injuries caused by fleeing from animal.
                c. Wild animals which are domesticated still give liability.
               d.     Domestic animals (cats, dogs): One bite rule, unless
                      knowledge of dangerous propensities before the one bite.
       3.    Products liability
                a. One who sells a product in a defective condition which is
                      unreasonably dangerous to user or consumer, is strictly
               b.     Liability is imposed on the entire line: Manufacturer,
                      wholesaler, retailer. But no liability on the occasional seller
                      (i.e. lemonaide stand, PTA bake sale).
                c. Misuse is not a defense if the misuse is foreseeable.
               d.     Liability for failure to give adequate warning or directions.
                e. Also discuss negligent manufacturing and warranties.
       4.    Rule of Rylands v. Fletcher

      5.   Defenses
             a. Assumption of the risk is the only defense.
G.   Nuisance
      1.   Public
             a. Act that inconveniences, obstructs or damages a right
                  common to the general public. Usually a serious
                  interference with public health, safety or peace.
             b.   π must suffer some harm of a kind that is different from the
                  general public.
      2.   Private
             a. Substantial and unreasonable interference with π ’s use and
                  enjoyment of land.
             b.   May also be a trespass.
      3.   Remedies
             a. Money damages
             b.   Injunction
                    1.    Balance of hardships usually results in money
                          damages being awarded, rather than injunction.
             c. Abatement by self help after notice to ∆ and refusal by ∆ to
                  take action.
H.   Misrepresentation
      1.   Intentional: Fraud or deceit.
             a. False representation made by ∆ .
             b.   Scienter: Knowledge by ∆ that representation is false.
             c. Intent to induce π to act or refrain from acting in reliance
                  on false statement.
             d.   Justifiable reliance by π on misrepresentation.
             e. Damages for pecuniary loss.
      2.   Usually no liability for nondisclosure, unless:
             a. Fiduciary relationship between parties
                  (executor/beneficiary, majority shareholder/minority
                  shareholder, bank/depositors)
             b.   Active concealment
             c. Partial or incomplete statements: π must disclose enough so
                  that his statements aren’t fraudulent.
I.   Defamation
      1.   Elements
             a. Defamatory language by π
                    1.    Adversely affects π ’s reputation, honesty, integrity,
                    2.    Inducement & Innuendo: Defamatory not on the
                          face of the language, but by adding extrinsic facts. π
                          must prove these additional facts.
             b.   Statement must concern ∆

              1.    Any living person may be defamed, but not
                    deceased person.
              2.    Defamation of company or product: COA is trade
                    libel, not defamation.
              3.    Reasonable reader/listener must understand that the
                    statement was concerning ∆ .
              4.    Group defamation is available.
       c. Publication
              1.    Communication to TP.
              2.    Each repetition is actionable. Primary publisher and
                    republishers are both liable.
       d.   Damage to π ’s reputation
              1.    Slander per se or libel: Damage presumed. No need
                    to plead or prove special damages.
              2.    Regular slander: π must prove actual pecuniary loss
                    as a result of defamatory statement, such as loss of
                    job or prospective job. Loss of friends or
                    humiliation is insufficient.
       e. Fault on ∆ ’s part
              1.    Public figure
                       a. Pervasive fame or notoriety, or voluntarily
                            injected themselves into public controversy.
                      b.    π must show malice (reckless disregard of
                            the truth, or knowledge of falsity).
              2.    Private individuals
                       a. π has to show negligence.
                      b.    Malice gives punitive damages.
2.   Libel: Written
       a. Libel per se: Injury to π presumed by law.
       b.   Libel per quad: Requires reference to extrinsic facts to
            establish defamatory nature.
3.   Slander: Spoken
       a. Slander per se
              1.    Loathsome disease
              2.    Unchastity of a woman
              3.    Improper conduct in one’s trade, business or
              4.    Falsely accused of criminal offense or crime
                    involving moral turpitude.
4.   Defenses
       a. Truth: Absolute defense
       b.   Consent
       c. Retraction is not a defense, but may mitigate damages.
       d.   Absolute privileges
              1.    Judicial proceeding
              2.    Legislative proceedings

                     3.    Executive proceedings
               e. Qualified privileges
                     1.    Job references: As long as former employer
                           reasonably believed what he said was true. Privilege
                           lost if malice exists.
J.   Right to Privacy
      1.    Appropriation: ∆ appropriates π ’s name or likeness for ∆ ’s
            commercial advantage.
      2.    False light: ∆ places π in false light or gives π attributes which ∆
            does not have.
      3.    Public disclosure of private facts
               a. Facts must be private
              b.    Disclosure must be objectionable to reasonable person
               c. No legitimate public interest
      4.    Intrusion on private seclusion: Evesdropping, peeping tom’s,
            unwanted phone calls.
K.   Other torts
      1.    Claims based on misrepresentations, and defenses
      2.    Claims based on intentional interference with business relations,
            and defenses

IV.   Evidence
       A.   Presentation of evidence (focus)
              1.  Introduction of evidence
                    a.    Requirement of personal knowledge
                    b.    Refreshing recollection
                            1.   Memory can be refreshed by means of leading Q or
                                 a writing (even if W didn’t prepare it), either before
                                 or while testifying, at discretion of court. Witness
                                 must testify without looking at writing (i.e. give to
                                 witness, exam, give back to attorney, testify). O/C
                                 has right to inspect document, use for cross, and
                                 introduce relevant portions of writing.
                    c. Objections and offers of proof
                            1.   Objections
                                   a. Where trial court admits evidence, timely
                                         and specific objection to admitted evidence
                                         must be made to preserve issue for appeal,
                                         unless plain (prejudicial) error is involved.
                                             i. Timely: Before witness answers,
                                                 unless need to object not apparent, in
                                                 which case motion to strike is proper.
                            2.   Offers of proof
                                   a. Where trial court excludes evidence, no
                                         error on appeal can be established unless
                                         offer of proof was made, or reason was
                                         apparent from context.
                                   b.    Method: Oral or written explanation, or
                                         Q&A format.
                            3.   Preliminary questions of admissibility
                                   a. Determined by trial judge as a matter of law.
                                             i. Qualifications of witnesses
                                            ii. Existence of privilege
                                          iii. Unavailability
                                           iv.   Weight and credibility of evidence is
                                                 a question for the jury.
                                   b.    Affidavits and hearsay allowed
                            4.   Conditional Relevancy: Where relevancy of
                                 proffered evidence depends on existence of other
                                 fact, evidence admissible until evidence produced
                                 re: nonexistence of other fact.
                            5.   Hearings on objections/admissibility
                                   a. Done outside presence of jury

              b.  Testimony by criminal ∆ as to preliminary
                  issue does not constitute waiver of 5th as to
                  other issues.
      6.   Introduction of parts of a writing: Once part of a
           writing or recorded statement is introduced, adverse
           party may request admission of any parts.
d.   Lay opinions
      1.   Must have personal knowledge: Actually perceived
           or observed event.
      2.   Nonexpert may testify in the form of opinions or
           inferences if:
              a. Rationally based on perception of witness;
             b.   Helpful to fact finder for clear understanding
                  of W’s testimony
      3.   Scope
              a. Speed and other physical measurements, but
                  not legal conclusion such as "reckless
             b.   Identity of person
              c. Sensory descriptions
             d.   Value of property
              e. Familiarity with person’s handwriting
              f.  Sanity, but not mental incompetency
             g.   Physical condition ("he appeared drunk" but
                  not "he’s an alcoholic")
e.   Expert testimony and scientific evidence
      1.   Qualification of witnesses
              a. Special knowledge, skill, training, education
                  or experience
             b.   Opinion must be helpful for finder of fact to
                  understand testimony
              c. Opinion within expert’s field of expertise.
      2.   Bases of testimony
              a. Facts perceived by expert or made known to
                  expert at or before trial
             b.   Facts reasonably relied upon by experts in
                  particular field, even if those facts aren’t in
                  evidence or are inadmissible hearsay
              c. Expert does not need to give reasons for
                  opinion on direct, but may be required to on
      3.   Ultimate issue rule: Expert witness may give
           opinion on ultimate issue ("did testator have mental
           capacity to make a will?" but not "did T have legal

      4.    Expert may not given opinion as to whether
            criminal ∆ did or did not have particular mental
            state which is an element of the crime.
       5.   Reliability of scientific evidence
f.   Competency of witnesses
       1.   Witness must take oath or affirmation to testify
       2.   Witness must show mental capacity sufficient to
            understand obligation to tell the truth
       3.   Witness must have personal knowledge
       4.   Interpreters are allowed if they qualify as expert
            witness and take oath to testify truthfully.
       5.   Any additional requirements imposed by states.
       6.   Dead man’s statute: Lawsuit involving dead person
            cannot use testimony regarding transaction
            involving deceased. If the state has a dead man’s
            statute, federal court will follow it.
g.   Judicial notice: Court will accept certain facts as true,
     dispensing with need for presentation of formal evidence.
     Can be done at any stage of the proceeding.
       1.   Legislative facts: Relevance to legal reasoning and
            lawmaking process.
       2.   Adjudicative facts: Facts in the case which are not
            subject to reasonable dispute because it is either:
              a. Generally known within geography of the
                     court (name of road in same town as court)
              b.     Capable of unquestionable accurate and
                     ready determination (time of sunset on
                     particular day).
       3.   Discretionary, on court’s own motion
              a. Laws of foreign countries
              b.     Laws of sister states
              c. Municipal ordinances
              d.     Regulations of public or private agencies
              e. Matters of local geography
               f.    Economic data: Insurance rates, interest
                     rates, customary salaries paid, current
                     events, political events, trademarks, patents.
       4.   Mandatory
              a. State and federal law
              b.     Indisputable scientific facts (blood test to
                     prove paternity, radar, ballistics test.
              c. Adjudicative facts, upon request by party,
                     when supplied with adequate supporting

              5.  Party against whom judicial notice is taken has a
                  right to be heard, either before or after notice is
                  taken (at court’s discretion).
            6.    Effect
                     a. Civil cases: Judicially noticed facts are
                           indisputable. Jury must accept as conclusive.
                    b.     Criminal cases: Jury may accept as
                           conclusive facts which are judicially
      h.   Roles of judge and jury
            1.    Neither judge nor any jury member can testify in
                  trial they are sitting in.
       i. Limited admissibility
            1.    Court may allow evidence for one party or one
                  purpose but excluding for another.
2.   Presumptions
      a.   Burdens
            1.    Production: Party must introduce initial evidence
                  on an issue, or risk directed verdict against the
                  party. Generally on the π .
            2.    Persuasion: Degree to which the party must
                  convince trier of fact re: issue.
                     a. Civil: By a preponderance of the evidence.
                    b.     Civil based on crime (fraud): Clear and
                           convincing evidence.
                     c. Criminal: Beyond reasonable doubt.
            3.    Affirmative defenses
                     a. π has burden of persuasion to prove all
                           issues beyond reasonable doubt.
                    b.     ∆ either has to show some evidence of
                           affirmative defense, followed by π showing
                           issue beyond reasonable doubt, or show
                           affirmative defense by by preponderance of
      b.   Presumption
            1.    Inference jury must draw which shifts burden of
                  production to opposing party.
                     a. Basic facts, once established, gives rise to
                           presumed facts, subject to other party
                           producing evidence contradicting presumed
            2.    Irrebuttable presumption: Basic facts conclusively
                  establish presumed facts. Example: Child under
                  certain age incapable of committing intentional tort.

              3.  Criminal cases: Presumptions are constitutional, but
                  only permissive presumptions, which allows jury to
                  use presumption, but they don’t have to.
                    a. If presumed fact establishes guilt or is an
                          element of the offense, court must instruct
                          jury that existence of presumed fact must be
                          proved beyond reasonable doubt.
3.   Mode and order
       a. Control by court
      b.   Scope of examination
       c. Form of questions
             1.   Leading Q’s only re:
                    a. Preliminary background information
                    b.    Examination of expert witnesses
                    c. Child witnesses
                    d.    Adverse witness
                    e. Refresh recollection
                    f.    Or on cross-examination
      d.   Exclusion of witnesses
4.   Impeachment, contradition, and rehabilitation
       a. Procedure
             1.   Credibility may be attacked by any party.
             2.   Own party would impeach own witnesses when:
                    a. Hostile witness
                    b.    Testimony is positively harmful to calling
                          party’s case
                    c. Where one party calls opposing party as
                          witness (adverse witness), in which case
                          impeachment can come before direct
             3.   Forms
                    a. Intrinsic: Evidence brought out from mouth
                          of witness herself.
                    b.    Extrinsic: All other evidence not from mouth
                          of witness.
             4.   Collateral matters
                    a. When offered to impeach, collateral matter
                          evidence can be inquired into intrinsically
                          on cross examination of the witness, subject
                          to discretion of judge. Example: Prior
                          statements, or knowledge that witness
                          testifying to character of party knew of
                          party’s prior crimes. Extrinsic evidence
                          (statements of other people) can not be
      b.   Inconsistent statements and conduct

      1.    Foundation: Witness need only be given opportunity
            to explain or deny statement on direct or cross.
      2.    Any inquiry permitted regardless of relevancy, but
            witness’ response limited by collateral matter rule
            (TP can’t be called to refute witness’ answer re:
            collateral matter).
c.   Bias and interest
      1.    Always material, never collateral. Impeachment can
            occur by intrinsic questioning or extrinsic
            testimony. Foundation requires asking witness about
            facts that form basis for bias.
               a. Interest in outcome
               b.   Economic or marital relationship
               c. Hostility or favortism
               d.   Fee paid to expert witness
d.   Conviction of crime
      1.    Felony convictions used to show bad character:
            Admissible if probative value outweighs prejudicial
      2.    Crimes bearing on untruthfulness: Judge has no
            discretion to exclude. Crimes can’t be introduced if
            committed more than 10 years ago, unless court
            determines probative value exceeds prejudicial
            effect and advance written notice to opposing party
            is given.
               a. Introduce by asking witness who committed
                    the crime, or offering certified copy of
               b.   Pardoned conviction inadmissible.
               c. Juvinile conviction inadmissible against ∆ ,
                    but admissible at discretion of court against
               d.   Appealed conviction is admissible, but
                    witness can show that the appeal is pending.
e.   Specific instances of conduct
      1.    Prior unconvicted bad acts relating to truthfulness:
            Q’s on cross-examination may inquire, but no more.
f.   Character for truthfulness
      1.    Reputation and opinion evidence of witness’
            character for untruthfulness: Both allowed, but
            limited to character trait for untruthfulness.
g.   Ability to observe, remember, or relate accurately
      1.    Sensory defects: Intrinsic or extrinsic evidence re:
            ability of witness to perceive, observe or remember.
            Foundation requires prior questioning re: sensory
            deficiency ("do you normally wear glasses?").

             h.   Impeachment of hearsay declarants
              i. Rehabilitation of impeached witnesses
              j. Religious beliefs are inadmissible to attack credibility.
      5.   Proceedings to which evidence rules apply
B.   Relevancy and reasons for excluding relevant evidence
      1.   Probative value
             a.   Relevancy
                    1.   Logical relevancy: Tendency to make the existence
                         of a fact of consequence to determination of the
                         action more probable or less probable than it would
                         be without the evidence.
                           a. Involves circumstantial evidence only – not
                                 direct evidence.
                                     i. Direct evidence: Does not depend on
                                         an inference for its relevancy.
                                    ii. Circumstantial: Relevancy depends
                                         on an inference.
                           b.    Specific types
                                     i. Other prior accidents can be
                                         introduced to prove that a dangerous
                                         situation existed, or that ∆ was aware
                                         of a dangerous condition, IF π
                                         establishes substantial identity of
                                         material circumstances.
                                    ii. Absence of similar accidents to show
                                         due care can be introduced IF
                                         substantial identity of material
                                         circumstances, and if party can show
                                         that if an accident had occurred, it
                                         would have been observed.
                                   iii. Prior tort claims can be used to show
                                         π ’s common scheme (i.e. 5 whiplash
                                   iv.   Prior K’s between parties to show
                                         prior course of dealing. K’s with
                                         TP’s to show usage of trade.
                    2.   Legal relevancy: Otherwise relevant evidence is
                         excluded for policy reasons (balancing test).
                    3.   Probative: Evidence must have some logical
                         tendency to prove or disprove a fact of
                    4.   Materiality: Evidence bears on a fact or
                         consequence re: particular matter before the court.
             b.   Exclusion for unfair prejudice, confusion, or waste of
                    1.   Unfair prejudice

                     a. Subject to appellate review
             2.    Confusion of issue
                     a. Subject to appellate review
             3.    Misleading jury
                     a. Subject to appellate review
             4.    Undue delay
             5.    Waste of time
             6.    Needless presentation of cumulative evidence
2.   Authentication and ID
      a. Real and demonstrable evidence must have foundation
           laid to authenticate by a showing of evidence "sufficient to
           sustain a finding that the matter in question is what the
           proponents proclaim."
             1.    Examples of evidence
                     a. Documentary evidence
                     b.    Physical evidence
                     c. Evidence used for purpose of explanation
                           (maps, models)
             2.    Authentication
                     a. Testimony re: personal knowledge
                     b.    Distinctive markings
                     c. Chain of custody
      b.   Scientific evidence or tests
             1.    Requirements
                     a. Device must be in proper working condition
                     b.    Device must be operated by a qualified
                     c. Techniques must be generally accepted in
                           scientific field
      c. Handwriting
             1.    Lay person with familiarity, so long as familiarity
                   wasn’t acquired for purposes of litigation.
             2.    Comparison by expert witness.
             3.    Comparison by trier of fact.
      d.   Telephone conversations
             1.    Calls to residence: Showing that call was made to
                   number assigned by telephone company, and self
                   identification by person who was called.
             2.    Calls to business: Showing that call was made to
                   number assigned by telephone company, and call
                   related to business reasonably transacted over
      e. Photograph: Must be accurate portrayal of what it depicts.
      f.   Self-authentication
             1.    Domestic public documents under seal
             2.    Certified foreign public documents

             3.  Certified copies of public records
             4.  Official publications of a public agency
             5.  Newspapers and periodicals
             6.  Trade inscriptions, i.e. label on a can of food
             7.  Notarized documents
             8.  Commercial paper
3.   Character
      a. Character: General description of person’s disposition.
      b.   Methods of proving character
             1.  Reputation in community
             2.  Opinion (personal)
             3.  Specific instances of conduct (acts)
      c. Admissibility
             1.  Civil (when admissible, all three forms can be
                   a. Inadmissable to prove conduct in conformity
                         therewith on a particular occasion. Example:
                         Negligence action, can’t show reputation as
                         careful person.
                   b.    Admissible when character is essential
                         element of claim, defense or COA:
                         Defamation, child custody.
                   c. Admissible when knowledge of character of
                         another is at issue: Self defense and
                         negligent hiring/entrustment.
             2.  Criminal ∆ can use circumstantial character
                 evidence when:
                   a. Opening the door rule: Evidence of ∆ ’s
                         good character by reputation or opinion
                         when relevant to prove innocence, and π can
                         rebut using contrary reputation or opinion
                         evidence, including challenging π ’s witness
                         credibility by asking "did you know" re:
                         specific ∆ ’s acts. If π ’s witness doesn’t
                         know about acts, witness doesn’t know π
                         very well; if witness does know, then she
                         isn’t credible.
                   b.    Bad character of victim: All three forms can
                         be used by ∆ to prove, and π can so rebut.
                   c. Rape: Reputation and opinion evidence
                         inadmissible, but specific acts of victim’s
                         sexual behavior admissible when:
                            i. Behavior with other persons which
                                 would explain signs of rape (i.e.
                                 other source of sperm).

                                        ii.  Past behavior w/∆ which tend to
                                             show consent.
                               d.    Mimic rule: Circumstantial evidence can be
                                     offered by π to rebut ∆ if specific trait to be
                                     proved is in issue.
                                        i. Evidence of other crimes, wrongs or
                                             acts not admissible to prove
                                             character of person to show he acted
                                             in conformity. But admissible for
                                             other purposes such as proof of:
                                             Motive, Intent, absence of Mistake,
                                             Identity, Common plan or scheme.
                                       ii. Never admissible to show criminal
                                             disposition or propensity to commit
              d.    Habit and routine practice
                      1.     Habit: Circumstantial evidence of person’s regular
                             response to repeated specific situation.
                      2.     Evidence of habit of a person or routine practice of
                             an organization, whether corroborated or not, and
                             regardless of presence of witnesses, is relevant to
                             prove conduct in conformity with routine practice.
                      3.     Opinion or specific conduct can be used to prove.
              e. Other crimes, acts, transactions, and events
      4.    Real, demonstrative and experimental evidence
C.   Best evidence rule
      1.    Applies to writings, recordings, photographs
              a. Where writing has independent legal significance (will,
                    warranties in a K, photograph in a pornography action)
              b.    Where writing offered to prove an event (x-ray to prove
                    injury, receipt to prove payment)
              c. Where testimony is reliant on writing, not reliant on
                    personal knowledge
      2.    Original is required
      3.    Exceptions:
              a. Merely to prove that a writing existed
              b.    Merely to prove that a statement was made
              c. Where contents of the writing are collateral to the matter
                    being litigated
      4.    Duplicates and photocopies are admissible and treated as the
            original, unless genuine question of authenticity
      5.    Summaries of voluminous records
              a. Record so voluminous it can’t be brought into court can be
                    introduced as a summary, provided that both the original
                    and summary are separately authenticated.

                     1.    Original record can usually be self-authenticated or
                           judicial notice
                     2.    Summary authenticated by personal knowledge
                           (person who drafted summary).
D.   Privileges and other policy exclusions
      1.    Controlling law
              a. In diversity cases and cases arising under state law,
                   privilege determined by state law.
              b.   In criminal cases, federal cases, and cases arising under
                   federal law, privilege determined by modern common law.
      2.    Elements
              a. Relationship: Exists if client is seeking professional advice
                   or consultation. No compensation need be paid, and
                   professional need not take case.
              b.   Communication: Communication is protected, but not the
                   information. The information may come into evidence by
                   other means.
              c. Confidentiality
                     1.    Nonessential (not furthering some purpose of the
                           relationship) TP’s destroy confidentiality. Known or
                           reasonably anticipated evesdroppers destroy
                           confidentiality, but unknown and unanticipated do
                     2.    Communications made in public are never
              d.   Holder
                     1.    Only holder can assert or waive privilege.
                     2.    Waiver can be complete or partial.
      3.    Spousal immunity and marital communications
              a. Marital communication privilege: Protects confidential
                   communications made during marriage, in both criminal
                   and civil cases.
                     1.    Divorce doesn’t destroy privilege.
                     2.    Observations and impressions are also protected.
                     3.    Both spouses are holders, so each spouse can
                           prevent the other from disclosure.
                     4.    Exceptions
                             a. Crimes against other spouse or children
                             b.    Statements made in furtherance of future
                                   crime or fraud
              b.   Spousal privilege: Protects all communications, not just
                   verbal, prior to and during marriage.
                     1.    Only applies in criminal case.
                     2.    Entire privilege is lost upon divorce.
                     3.    In federal courts, witness spouse is the holder, not
                           the party spouse.

              4.      Exceptions
                        a. Crimes against other spouse
                        b.    Crimes against children
4.   Attorney-client and work product
       a. Attorney is one who is actually licensed or who client
             reasonably believes to be licensed.
       b.    Holder is the client, but attorney may assert privilege for
       c. Exceptions
               1.     Suits between attorney and client
               2.     Suits between joint clients
               3.     Disputes re: client’s will after client’s death
               4.     Communications made in furtherance of future
                      crime or fraud
       d.    Work-product: Material prepared by attorney for her own
             use not protected by attorney-client privilege, but protected
             under work-product doctrine.
               1.     Preexisting documents handed over to attorney not
               2.     Basic facts re: client (name, address, etc.) not
       e. Corporate clients
               1.     Federal courts: Protects statements made by even
                      ordinary employees to attorneys investigating
                      relevant issues.
               2.     State courts: Privilege applies only to control group,
                      consisting of people having authority to decide
                      corporate policy.
5.   Physician/psychoterapist-patient
       a. Includes psychoanalysis, psychologists, psychiatrists.
       b.    Protects verbal communications and observations (x-ray,
       c. Exceptions
               1.     Physical or mental condition at issue
               2.     Criminal proceedings
               3.     Malpractice actions
               4.     Competency or commitment proceedings
               5.     Duty of professional to warn of immediate threat of
                      harm by patient.
6.   Priest-penitent
       a. Both priest and penitent are holders of the privilege.
7.   Self incrimination
8.   Insurance coverage
       a. Evidence that person has or does not have liability
             insurance, and statements made in connection ("I ran the

                   red light, but I have insurance"), is inadmissible to prove
                   negligence. Exceptions:
                     1.    To show agency
                     2.    Ownership or control
                     3.    Bias or prejudice
      9.   Remedial measures
             a. Subsequent remedial measures cannot be used to prove
                   negligence or culpable conduct (purpose is to encourage
                   people to make repairs without fear of liability). Except:
                     1.    To prove ownership or control
                     2.    To show feasibility of precautions, if controverted.
                     3.    For impeachment
     10.   Compromise, payment of medical expenses, and plea
             a. Offer to settle disputed claim and statements connected
                   therewith ("I was at fault. Let’s settle.") are inadmissible to
                   prove liability for claim or amount (encourages settlement).
                     1.    Prove bias or prejudice of witness.
                     2.    Contravert conention of undue delay by a party.
                     3.    To prove that a party attempted to obstruct a
                           criminal investigation.
             b.    Offer to pay medical bills is inadmissible to prove liability
                   for injury. Statements made in connection ARE admissible.
             c. Offers to plead guilty or nolo contendre, even if withdrawn,
                   are inadmissible against maker of plea. Except:
                     1.    Prosecution for perjury
                     2.    Purposes of impeachment
                     3.    Actual guilty plea not withdrawn can be used in a
                           civil case
                     4.    Entry of judgment following guilty plea is
                           admissible under a hearsay exception
     11.   Past sexual conduct
E.   Hearsay and admissibility (focus)
      1.   Definition
             a. What is hearsay
                     1.    Out of court statement
                              a. Oral or written assertion; or
                              b.    Nonverbal conduct intended by a person as
                                    an assertion
                     2.    Other than one made by declarant while testifying
                           in court
                     3.    Offered to prove the truth of the matter asserted.
             b.    Prior statements by witness
             c. Statements attributable to party-opponent
             d.    Multiple hearsay

              1.   Example: A testifying as to what B said about what
                   C said.
            2.     Each layer must be separately admissible.
2.   Non-hearsay
      a.   Prior inconsistent statements
            1.    Declarant must be available and subject to cross.
            2.    If statement was sworn testimony in a proceeding,
                  admissible both substantively and to impeach.
                  Otherwise, only admissible to impeach.
      b.   Prior consistent statements
            1.    Declarant must be available and subject to cross.
            2.    Nonhearsay where offered to rebut charge of recent
                  fabrication (i.e. that witness is biased or lying) or
                  improper influence.
      c. Prior identifications
            1.    Declarant must be available and subject to cross.
            2.    Prior statement of identification made after person
                  perceived him.
      d.   Admissions
            1.    Direct: Statement of a party, offered against him, by
                  opposing party ("admission of party-opponent").
            2.    Conduct or silence
                     a. Conduct: Evidence of party’s conduct which
                          reasonably supports an inference
                          inconsistent with party’s position.
                    b.    Admissible silence: Evidence of
                          circumstances such that a reasonable person
                          would have denied the statement. Does not
                          include post-arrest situation (Miranda).
            3.    Authorized
                     a. Statement of person specifically authorized
                          by party to speak.
            4.    Vicarious
                     a. Statement of agent or employee made during
                          existence of relationship concerning matter
                          within scope of employment.
            5.    Coconspirator
                     a. Statement of coconspirator made during the
                          course and in furtherance of the conspiracy.
                    b.    Conspirator is viewed as an agent of all the
                          other conspirators.
                     c. Conspiracy must be proved to exist.
      e. Verbal acts
            1.    Statements whose relevance is independently
                  significant of their truth.

                     a.   Transactional words: Actual words of a K,
                          will or deed.
                    b.    Tortious words: Actual words of libel or
                          slander in a defamation action.
      f.   Nonassertive conduct
             1.   Behavior which actor does not intend to mean as
                  communicative statement, but which may be
                  interpreted as a communicative statement.
             2.   Example: Person opens umbrella not to
                  communicate that it is raining, but so that they don’t
                  get wet. Pilot who brings his family onto the plane –
                  not to show it’s safe. Compare with signaling
      g.   State of mind
             1.   Independently relevant circumstantial evidence can
                  be used to prove knowledge, intent, attitude or
                  belief of either declarant or listener.
3.   Hearsay exceptions
      a. Unavailability of declarant required
      b.   Present sense impression
             1.   Statement describing or explaining event or
                  condition made while declarant was perceiving
                  event or condition, or immediately thereafter. No
                  time for reflection or deliberation.
             2.   Declarant need not be available or even known.
      c. Excited utterances
             1.   Utterance relating to a startling event or condition,
                  made while declarant was under the stress of the
                  excitement caused by the event or condition.
                    a. No time for reflection and deliberation, i.e.
                          statements made at police station following
             2.   Condition need only relate to the startling event.
             3.   Declarant need not be available or even known.
             4.   Res gesti: Always a wrong answer.
      d.   Statements of mental, emotional or physical conditions
             1.   Intent, pain, bodily health
                    a. "I’m going to Colorado" is a statement of
             2.   Statement must relate to the present; not past,
                  although past mental state re: declarant’s will is
      e. Statements of past physical condition
             1.   Medical history or past/present symptoms of a
                  person (not necessarily the person seeking

      2.    Made to any person for the purpose of medical
            diagnosis or treatment.
f.   Past recollection recorded
      1.    Where witness’ memory has failed to be refreshed,
            witness may read into evidence statements from a
            writing if:
               a. Witness once had knowledge re: matter;
              b.    Writing must have either been made by
                    witness or adopted by her at a time when it
                    was fresh in her memory; and
               c. Writing has been properly authenticated to
                    satisfy best evidence rule.
      2.    Writing itself is not admitted into evidence – only
            read into evidence, unless adverse party consents.
g.   Business records
      1.    Record or report of acts or events kept in ordinary
            course of regularly conducted business.
               a. Circumstances must not indicate lack of
                    trustworthyness (i.e. prepared in anticipation
                    of litigation).
              b.    Record must have been prepared by either
                    custodian or qualified person with
                    knowledge (common law required
                    custodian), and that person must have had a
                    business duty to record.
               c. Record must have been prepared at or near
                    the time of the event.
      2.    Absence of business entry can be used to prove
            nonoccurance of event or nonexistence of record.
            Example: Absence of DMV record re: driver’s
h.   Public records and reports
      1.    Types of records
               a. Records of public office or agency activities
              b.    Records of matters observed pursuant to a
                    legal duty (does not include PD reports of
                    criminal activity – inherent lack of
               c. Factual findings of official investigations
      2.    Custodian of record must have official duty to
      3.    Court has discretion to exclude due to lack of
      4.    Absence of public record is admissible.
i.   Other records
      1.    Vital records

      2.   Religious organization records (baptism, etc.)
      3.   Marriage certificates
      4.   Family records, such as statements made in family
           bibles, engravings on tombstones, genealogy charts,
           and inscriptions on family portraits.
      5.   Statements in ancient documents (>20 yo) if found
           in place where it aught to be, and some form of
           authentication. Example: Map to show existence of
           a road.
      6.   Final judgments entered after trial or upon plea of
           guilty to felony. Used to prove truth of matter
           asserted, not of character.
j.   Learned treatises
      1.   Statements contained in published treatises and
           periodicals admissible if:
              a. Found to be authoritative (by expert
                    testimony or judicial notice); and
             b.     Treatise called to expert witness on cross, or
                    relied upon her on direct examination.
      2.   Statements in treatise are read into evidence.
           Treatise itself is not admitted unless offered by
           adverse party.
k.   Catch-all (equivalency) exception
      1.   Evidence offered must be more probative than any
           other evidence on point.
      2.   Court must find "circumstantial guarantees of
           trustworthiness" equivalent to other hearsay
      3.   Admission of statement must best serve interests of
      4.   Advanced written notice must be given to opposing
l.   Other
      1.   Types of declarations
              a. Former testimony: Testimony given at
                    earlier proceeding if party against whom
                    testimony is offered, or pretecesor in
                       i. Was a party in earlier proceeding;
                      ii. Had opportunity to examine
                            declarant; and
                     iii. Had a motive to examine similar to
                            the reasons now given (i.e. party was
                            ∆ in both former and present case).
             b.     Dying declaration

                i.  Declaration made while under
                    imminent belief of death concerning
                    cause or circumstances of
                    purportedly imminent death.
              ii. Can be used in criminal homicide
                    case, or any civil case.
      c. Declaration against interest
               i. Statement of nonparty which was
                    against penal, pecuniary or
                    proprietary interest when made.
              ii. If statement against penal interest
                    offered to exculpate accused,
                    corroborating circumstances must be
                    shown which clearly indicate
                    trustworthiness of declaration.
             iii. Versus admission
                      a. Admission is a statement of a
                            party, but declaration is
                            statement of nonparty
                      b.    Admission does not require
                            nonavailability; declaration
                            against interest does.
                      c. Admission need not be
                            against interest when made;
                            declaration must be.
                      d.    Admission doesn’t require
                            personal knowledge;
                            declaration does.
                      e. Same statement can’t be both
                            admission and declaraction
                            against interest.
2.   Unavailability of declarant required
      a. Assertion of privilege
      b.   Refusal to testify
      c. Lack of memory
      d.   Absence by death, illness or injury
      e. Absence from court’s jurisdiction

V.   Real Property
      A.   Considerations
             1.    Nature and characteristics
             2.    Creation
             3.    Classification of interests
             4.    Rights of possession and user
             5.    Legal and equitable remedies
      B.   Interests in property
             1.    Freehold estates (possession under title)
                    a.     Fee simple absolute
                             1.     Maximum of legal ownership
                             2.     CL: "To grantee and his heirs." ML: "To grantee."
                    b.     Defeasible fees simple
                             1.     Fee simple determinable: Fee simple estate which
                                    continues until the happening or nonhappening of a
                                    stated event, at which time estate automatically
                                    terminates and reverts back to grantor. Example: "X
                                    grants property to A so long as [until, while, during]
                                    property is used as a school."
                             2.     Fee simple subject to condition subsequent: Fee
                                    simple estate which may be terminated upon the
                                    happening or nonhappening of a stated event,
                                    grantor may reenter the land. Example: "X grants
                                    property to A, but if [subject to the condition that]
                                    the property is not used as a farm, X may reenter."
                             3.     Fee simple subject to executory interest: Fee
                                    simple whose ownership passes to another grantee
                                    upon the happening of a stated event. No reversion
                                    or right of reentry to original grantor. Example: "X
                                    grants property to A, as long as land is used as a
                                    farm, if not, then to B" or "X grants property to A,
                                    but if A dies without issue living at his death, then
                                    to B and his heirs."
                     c. Fee tail: Fee simple whose inheritance was limited to
                           grantee’s lineal descendents. Example: "To B, and the heirs
                           of his body" or "To B, and the male heirs of his body."
                    d.     Life estates: Fee simple where a duration is measured by
                           live of human being. Example: "X conveys property to A
                           for life of A" or "X conveys property to A for the life of B"
                           (per ultra vie – life of another).
                             1.     Dower: Widow entitled to life estate in 1/3 of lands
                                    her husband owned in fee simple during the

              2.   Cutsey: Widower entitled to life estate in lands
                   owned by wife during marriage. Marriage must
                   have been legal, wife must have owned land in fee
                   simple or fee tail, and wife must have had issue
                   born alive by the husband, wife must predecease
              3.   Rule in Shelly’s Case: If freehold estate is given to
                   a person for life, and in the same conveyance a
                   remainder is limited to heirs of that person, then
                   grantee takes in fee simple.
              4.   Doctrine of worthier title: A to B with remainder
                   to A’s heirs. Remainder is cut off, and reversion in
                   fee back to A after B’s life estate expires. Title by
                   descent is worthier than title by devise.
2.   Future interests
      a. Reversions: Estate remaining in the grantor who has
           conveyed a lesser estate than that owned by the grantor.
           Example: "X conveys property to A for life of A."
           Reversion consists of X’s estate minus A’s estate. Can be
           created by a fee tail, life estate, or contingent remainder
           which does not vest.
      b.   Possibilities of reverter: Interest retained by grantor of a
           fee simple determinable. Example: "X conveys property to
           A as long as the land is farmed."
      c. Power of termination / Right of reentry: Created when
           grantor grants property subject to condition subsequent,
           when grantor has the option of reentry.
      d.   Remainders: Future interest created in TP which is
           intended to take effect after natural termination of
           preceeding estate. Example: "X conveys property to A for
           life with remainder to C and his heirs."
              1.   Requirements
                      a. Must be in favor of a transferee (C) who is
                           different from grantor (X)
                     b.    Must be created at same time and in same
                           instrument as the creation of the estate
                           which preceeds it (grant to A)
                      c. Preceeding estate must be of less duration
                           than interest of conveyor (X).
                     d.    Preceeding estate must be either fee tail, life
                           estate or estate for years, but not fee simple
                           (that would be an executory interest).
              2.   Characteristics of remainders
                      a. Alienable or transferable
                     b.    Contingent remainders not subject to claims
                           of creditors, but vested remainder is.

               c.    Takes effect only after natural termination of
                     prior estate.
               d.    Contingent remainders falls within rule
                     against perpetuities, but vested does not.
               e. Vested remainderman has right against prior
                     estate holder for waste, and to require prior
                     estate holder to pay taxes and interest on
                     encumbrances. Contingent remainderman
                     does not.
       3.    Vested: Created in ascertained and existing person
             (C) that is not subject to any condition precedent
             except natural termination of preceeding estate.
             Example: "X to A and the heirs of his body,
             remainder to C and his heirs" or "To B for life, then
             to C for life."
               a. Absolutely vested: Limited to ascertainable
                     or identifiable person without words of
                     condition, and not subject to divestment. Ex:
                     "X to A for life then to B".
               b.    Vested subject to partial divestment (or
                     open): Remainderman is in existence and
                     ascertained, but amount of estate could be
                     dimished in favor of other members of class.
                     Ex: "A to B for life, then to children of B in
               c. Vested subject to complete divestment:
                     Remainderman is in existence and
                     ascertained, and interest not subject to
                     condition precedent, but right to possession
                     or enjoyment is subject to termination by
                     executory interest, power of appointment, or
                     right of entry. Ex: "X to A for life then to B
                     and heirs, but if B dies without heirs, then to
       4.    Contingent: Remainder created in favor of
             ascertained person but subject to condition
             precedent, or is created in favor of unascertained
             (unborn) person. Ex: "X to A for life, remainder to
             B and his heirs, if B marries before A’s death" or "X
             to A for life, remainder to B for life if B survives
e.   Executory interests: Cuts short a prior estate. Future
     contingent interest created in favor of transferee in the form
     of springing or shifting use, which on the happening of the
     described contingency will be executed into a legal estate
     which cannot be described as a remainder.

       1.      Characteristics
                  a. Transferee must be different from grantor:
                        Different from possibility of reverter or right
                        of reentry, which allows grantor to regain
                  b.    Always contingent – never vested.
                  c. Cuts short prior estate upon happening or
                        nonhappening of stated event or contingency
                        – not after natural termination of preceeding
                  d.    CAN follow a fee simple.
        2.     Shifting: Cuts short prior estate in favor of another
               grantee. Ex: "X grants to A for life, but if A goes
               bankrupt, then to B and his heirs". B will only get if
               A goes bankrupt, otherwise it reverts to X when A
        3.     Springing: Upon contingency, estate passes back to
               grantor then to grantee #2. Ex: "X to A and his
               heirs, but if A goes bankrupt, then one year later to
               B and his heirs." During the one year lapse, estate
               reverts to X, then to B.
        4.     Devise: Created by will, as opposed to grant or
f.   RAP: No contingent interest exists unless it must vest or
     fail, if at all, no later than 21 years after some identifiable
     life in being at the time the interest is created.
        1.     Options to purchase land in the future: May violate
               if option is to "X or his heirs", because the heirs
               haven’t yet been determined until he dies, which
               may not occur w/in 21 years.
        2.     Class gift vests only when class closes and all
               conditions precedent for every member of the class
               have been satisfied. Entire class gift void if any
               member violates RAP. Class closes when parent of
               class dies, or when any member of class can
               demand possession.
        3.     Power of appointment: Considered equivelant of
               ownership of property, and RAP is not a factor.
g.   Restraints on alienation: Restrict grantee’s power to
     convey property to others. Invalid if imposed on fee simple.
     Restraints on lesser estates are generally valid.
        1.     Restraint re: time can only limit grantee for limited
               amount of time
        2.     Restraint re: persons invalid, i.e. minorities.
        3.     Preemptive right or right of first refusal are upheld.
        4.     Types

                      a. Disabling
                      b.    Forfiture
                      c. Promissory
3.   Concurrent estates: Ownership/possession by 2+ persons at same
       a. Joint tenancy: Each tenant owns an undivided interest in
           whole estate.
             1.    Right of survivorship: Upon death of one tenant,
                   title passes to surviving J/T.
             2.    Requirements of unity:
                      a. Unity of time: Interest must vest at same
                      b.    Unity of title: Interest acquired by same
                      c. Unity of interest: Interest of same type and
                      d.    Unity of possession: Each J/T given
                            identical rights of enjoyment.
             3.    Created by deed or will, never descent.
             4.    Disfavored at law, therefore express creation
                   required. Otherwise, tenancy in common is created.
             5.    Conveyance of interest or K to convey severs J/T
                   and creates tenancy in common.
             6.    Suit for partition severs J/T .
             7.    Mortgages: Severs if transfer of title (minority), but
                   not in lien theory jurisdiction.
       b.  Tenancy by the entirety: Ownership by both H and W,
           with right of survivorship. Unity required:
             1.    Unity of time, title, interest, possession, person.
             2.    Severance by death of either spouse, divorce
                   (converts to tenants in common), or conveyance by
                   both parties.
             3.    No right to partition.
       c. Tenancy in common: Co-tenants own undivided, separate,
           distinct share of property.
             1.    Each tenant can convey his interest.
             2.    No right of survivorship.
             3.    Destroyed by partition or merger.
             4.    When one co-tenant wrongfully ousts other tenant
                   from possession, ousted tenant has COA against
             5.    Each T has right to possess and enjoy whole
             6.    Tenant in possession can retain profits gained from
                   use of property, and need not share with other
                   tenant, unless outster.

              7.  Taxes: Right of contribution, enforceable by lien.
              8.  No right of contribution for repairs or
                  improvements, unless partition.
4.   Leasehold/Nonfreehold estates (possession)
      a.   Conveyance
             1.   SOF applies, and writing must contain the following
                  elements: Identity of lessor and lessee; describe
                  land; state term of lease; set forth amount of rent.
             2.   Tenancy for years
                    a. Fixed duration specified in lease.
             3.   Periodic tenancies
                    a. Tenancy is automatically renewed at
                          expiration of previous tenancy (i.e. month-
                    b.    Proper notice required to terminate (i.e. 30
             4.   Tenancies at will
                    a. Terminable at will of either party, without
                          advance notice.
                    b.    Continues until terminated.
             5.   Tenancies at sufferance
                    a. T remains in possession (holdover) after
                          expiration of tenancy.
                    b.    T liable for rent for possession.
             6.   Assignment & subleases
                    a. Absent express K prohibition, T can freely
                          transfer her leasehold interest in whole
                          (assignment) or in part (sublease).
                    b.    Assignment: T still has privity of K with LL
                          and T is still liable for rent payments.
                          Assignee also has privity of K, unless he
                    c. Sublease: T always has privity with LL, and
                          subleasor has no legal relationship with LL.
                          Original T always liable to LL, and
                          sublessee not liable to LL for rent.
      b.   Duties
             1.   T’s duty to pay rent
                    a. Consideration paid for use and enjoyment of
                          the land.
                    b.    Not pro-rated: LL cannot collect for partial
                    c. Not extinguished upon destruction of
                    d.    Extinguished upon
                             i. LL release

              ii.    Merger: T purchases property
             iii.    Expiration of lease
             iv.     Eminent domain: If complete taking
              v.     Constructive eviction: Material
                     breach by LL which violates T’s
                     implied covenant of quiet enjoyment
                     and T quits possession
              vi. Frustration of purpose: Illegality.
             vii. Surrender
2.   T’s duty to repair: Affirmative duty to make
     ordinary repairs.
3.   T’s duty not to commit waste
       a. Voluntary: Caused by affirmative act of T.
       b.   Ameliorating: Change in physical
            characteristics of premises by unauthorized
            act of T but which increases value of
            premises. T ordinarily not liable.
       c. Permissive: Injury to premises by T’s failure
            to act when duty exists, such as failure to
            make ordinary repairs.
       d.   Equitable: Injury to reversionary interest in
            land, but which is not considered legal
            waste. Only remedy is injunction. Usually
            occurs when "without impeachment of
            waste" clause appears in K.
4.   T’s duty of care (tort liability)
       a. No duty to tresspassor unless anticipated or
            discovered, in which case duty to warn of
            known dangerous conditions which
            trespassor would not discovery himself.
       b.   Licensee: Duty to warn of known dangerous
       c. Invitee: Duty to inspect and make safe.
5.   LL duty to deliver possession of premesis
       a. American rule: No duty to deliver. T does
            not acquire legal interest until actual
            possession taken. T can only take action
            against trespassor, not LL.
       b.   English/Common Law: LL impliedly
            warrants that T will have legal right to
            possession at beginning of leasehold term.
6.   LL duty to warn of dangerous conditions (fitness of
       a. LL not liable for dangerous conditions on
            premesis (caviet emptor revails), except LL
            is liable for known (or should have known)

                         hidden defects which T would not
                         reasonably discover and which injures T or
                    b.   LL is liable for dangerous conditions if
                         premises is furnished.
            7.   LL duty to repair: None, unless he undertakes
                 repairs and is negligent.
      c. Fixtures
            1.   For a chattel to become a fixture:
                    a. Must be intention of chattel owner for
                         chattel to become a fixture
                             i. Nature of article
                            ii. Manner of attachment to land
                          iii. Injury to land
                           iv.   Completeness of integration with use
                                 of land.
                            v.   Relation of chattel owner to land.
                    b.   Chattel must be attached, actually or
                         constructively, to realty
                    c. Chattel must be appropriated for purpose for
                         which land is used.
            2.   Trade fixtures: Chattels annexed to land for
                 pecuniary gain during tenancy; removable by T.
      d.  Contract
            1.   Eviction: Occurs where LL or paramount title
                 holder excludes T from possession.
            2.   Covenant of quiet enjoyment
                    a. Breached by eviction and relieves T’s duty
                         to pay rent.
      e. Surrender, mitigation of damages, and anticipatory breach
5.   Nonpossessory interests
      a. Profit: Right of one person to go onto the land of another
          and extract something from that land.
      b.  Easements: Right of one person to go onto the land of
          another and make limited use (but not removal) of that
            1.   Types
                    a. Appertinant: Two parcels, one dominant,
                         one ajoining servient. Dominant owner can
                         come onto servient land to make use of it.
                         The easement runs with the servient land –
                         enforceable by and against successors in
                         interest to the original parties.
                    b.   In Gross: Only have a servient tenanent
                         subject to easement. Example: City has a
                         sewer line going through your property, or

            telephone polls in front yard. May run with
            the land.
2.   Categories
      a. Affirmative: Allows owner to make
            affirmative use of subservient tenement –
            i.e. right to ingress and egress.
      b.    Negative: Prevents servient tenament owner
            from doing some act or making some use of
            her land.
3.   Creation
      a. It’s an interest in land, so must comply with
            SOF, except: Implied and prescriptive
               i. Implied/Necessity: Landlocked
                     property where only way to get to
                     road is over another’s land.
                     Landlocked property owner has
                     easement by implication over other
                     property to road. Available where
                     either reasonably necessary or
                     strictly necessary.
                        a. Grant: Grantor subdivides
                              land and makes grant of
                              landlocked land to grantee,
                              grantee only has to show
                              easement is reasonably
                       b.     Reservation: Grantor reserves
                              easement for himself when he
                              sells dominant lot. Must be
                              strictly necessary.
              ii. Prescription
                        a. Adverse use (not with
                       b.     Open use
                        c. Notorious
                       d.     Continuous
                        e. For statutory period
4.   Extinguished
      a. Merger: Dominant and servient tenements
            come into the hands of the same person.
      b.    Written release
      c. Abandonment
      d.    Prescription: Servient tenement owner has
            used her land in a way that is inconsistent
            with and adverse to easement for prescribed

                      period, without consent of easement holder
                      (dominant tenement).
                e. Destruction of servient tenament
                f.    Estoppel: Subservient tenant, in reasonable
                      reliance on conduct dominant tenant, uses
                      servient tenement in a way that is
                      inconsistent with easement.
                g.    Condemnation/Eminent domain: Dominant
                      tenement owner is entitled to compensation.
                h.    Non use, coupled with intent to abandon
       5.    Excessive use requires injunction to stop misuse.
c.   Licenses: Permits a person to come onto the land of
     another without being viewed as a tresspassor. Not an
     interest in land: Much less significant than an easement.
     Generally revocable at discretion of licensor, but not if
     coupled with an interest (i.e. ownership interest in goods
     located on the land). Example: Free parking at shopping
d.   Covenants running with land: K which may be enforced
     by successors in interest.
       1.    Writing in compliance with SOF
       2.    Intent of both parties for K to run with land:
             "Assigns or successors" term must be used in K.
       3.    K must touch and concern the land – either makes it
             more or less valuable, or increase or decrease use or
             utility of land.
       4.    Privity of estate between parties: One of the parties
             succeeds to the interest in the land of the other party
e.   Equitable servitudes: Restriction on the use of land that is
     enforceable in equity.
       1.    Writing
       2.    Intention
       3.    Notice: Grantee must take the land with knowledge
             (actual, record or inquiry notice) of equitable
             servitude. Inquiry: Common development scheme,
             buyer should be aware.
       4.    Imposition by:
                a. Declaration of restriction filed with
                b.    Where all lot owners agree and execute a
                      restriction; or
                c. Where subdivider creates common
                      development scheme.
                d.    Any lot owner within scheme can enforce.

                      5.    Similar to covenant running with land, but privity of
                            estate not required. Equitable servitude only
                            enforceable in equity – covenant is enforceable at
                      6.    Extinguish in same way as covenant running with
                            land, easements or profits, plus by substantial
                            change in character of neighborhood (but not
                            zoning changes).
              f.    Other interests in land
                      1.    Fixtures (including UCC A9)
                      2.    Scope and extent of real property
                              a. Superajacent, adjacent, and subjacent space
                              b.    Rights in the common resources of light, air,
                                    streams, and bodies of water
                              c. Nuisance
              g.    Taking and aspects of zoning
C.   Rights incident to possession
      1.    Adverse possession
              a. Requirements
                      1.    Adverse use: Without permission
                              a. Honest mistake of ownership is not a
                      2.    Actual and exclusive physical occupancy
                      3.    Open and notorious
                      4.    Continuous and without interruption for the
                            statutory period
                              a. Begins to run when cause of action accrues
                                    against adverse possessor.
                                       i. Period during which landowner can
                                            bring action against adverse
                                            possessor is tolled during
                                            landowner’s disability or age of
                              b.    Tacking between adverse possessors is ok if
                                    privity between them: Descent, deed, will,
                                    written K, oral K, oral gift, or mere
              b.    Limitations of claims
                      1.    Cannot acquire larger estate than he claims.
                      2.    Cannot claim title to less than a freehold estate
      2.    Lateral and subjacent support
              a. Landowner has absolute right to have her land supported.
              b.    One who withdraws support from neighbor’s land in its
                    natural state creates absolute liability regardless of

       c.   Damage to artificial structures: English rule includes
            recovery for structural damage, but American rule limits
            recovery to damage to land in its natural condition. But if
            negligent excavation, then all damage is recoverable.
      d.    Excavation on one’s land which releases semi-fluid
            material from neighbor’s land which causes neighbor’s land
            to sink, there is liability.
3.   Water rights
       a. Surface lakes and streams
              1.    Riparian water rights: All tracks of land touching
                    the water is riparian.
                       a. Natural flow theory: Each proprieter of land
                             has a fundamental right to have the stream
                             or lake remain substantially in its natural
                             state, free from any unreasonable
                             diminishment in quantity or polution. Each
                             riparian can use for natural or artificial uses
                             so long as used on riparian land, and does so
                             sensibly as not to affect quantity or quality
                             of water.
                       b.    Reasonable use theory: Each riparian owner
                             has right to make maximum use of the
                             water, on or off of riparian lands, but can’t
                             unreasonably interfere with like use by other
              2.    Water uses
                       a. Natural uses: Daily personal sustenance.
                             Takes precedence over artificial uses, but
                             prior use of water for artificial uses is
                       b.    Artificial uses: Irrigation, industrial uses.
      b.    Underground and percolating waters
              1.    Common law: Water is controlled by surface owner.
                    If withdrawal affects neighbor, no liability.
              2.    US law: Surface owner can withdraw underground
                    water but must make reasonable use of the water.
                    Unreasonable use resulting in damage to neighbor
                    results in liability.
       c. Surface waters
              1.    Landowner has unlimited discretion in dealing with
                    surface waters, regardless of effect on others.
4.   Surface rights
       a. Includes vegetation and growing crops.
      b.    Frutes naturals: Trees, grasses, shrubs. Considered real
            property and part of the land, until severed. Passes with

                  conveyance of land. If straddeling property line, then
                  owned as tenants in common.
             c. Frutes industrials: Crops. Treated as personal property of
                  land’s tenant. At the close of the tenancy, any crops not
                  severed belong to LL. Crops which are severed but not
                  removed still belong to tenant. But tenancy at will can
                  remove crops within reasonable time after tenancy
D.   Real Property Contract
      1.   Relationships included
             a. Contracts to buy and sell by conveyance of realty
             b.   Installment contract
      2.   Creation and construction
             a. Statute of frauds
                    1.    SOF exception (oral K ok) where doctrine of
                          substantial part performance applies:
                            a. Buyer pays part or all of purchase price and
                                  buyer takes possession, or makes substantial
             b.   Essential terms
                    1.    Identify parties
                    2.    Sufficient description of land to be conveyed
                            a. Sufficient lead as to identity of property to
                                  be conveyed
                            b.    Parole evidence is admissible to clear up
                                  patent (on face of deed) ambiguity.
                    3.    Purchase price
                    4.    Promises on both sides (grantor promises to convey,
                          grantee promises to pay price)
                    5.    Signed by party to be charged (grantor)
             c. Implied conditions or terms
                    1.    Time for performance
                    2.    Title required
                    3.    Burdens related to title defects
      3.   Performance
             a. Fitness and suitability of premises
             b.   Marketable title
                    1.    Implied covenant that seller has good and
                          marketable title on date of deed delivery.
                    2.    Buyer can rescind K if seller does not have good
                          and marketable title on date of deed delivery.
                    3.    Deed supersedes K, so if buyer accepts good
                          without warranties of title, he’s SOL.
                    4.    Defects
                            a. Outstanding mortgages
                            b.    Covenants

                                c. Reverter rights
                               d.    Unremovable encumbrance
                                e. Easement upon appreciable part of property
                                f.   Variations in names of grantors or grantees
                               g.    Outstanding dower interest
               c. Risk of loss
      4.     Interests before conveyance
               a.    Equitable conversion
                       1.    In period between execution of K and closing,
                             where enforceable interest in land exists:
                       2.    Seller deemed to be equitable owner of balance of
                             purchase price, and buyer is equitable owner of
                       3.    Legal title remains in seller.
                       4.    Risk of loss on buyer, so he takes out insurance to
                             protect expectancy interest.
                       5.    Seller’s death does not negate K. Buyer’s death
                             means that estate pays purchase price and title goes
                             to buyer’s heirs.
               b.    Earnest-money deposits
      5.     Relationships after conveyance
               a. Condition of premises
               b.    Title problems
E.   Titles (focus)
      1.     Conveyancing by deed
               a. Types
                       1.    General warranty
                                a. Includes first five covenants (season,
                                     convey, encumbrances, quiet enjoyment,
                                     general warranty)
                       2.    Special warranty
                                a. Includes fewer warranties than general
                                     warranty deed
                       3.    Quitclaim
                                a. Includes no warranties – grantee takes
                                     whatever grantor has.
               b.    Necessity for a grantee
               c. Delivery (including escrows)
                       1.    Grantor’s intent to deliver, shown by words or
                             conduct (parole evidence ok).
                       2.    If deed is in possession of grantee, presumption that
                             deed has been validly delivered.
                       3.    If deed is in possession of grantor, presumption that
                             there has not been a valid delivery.
                       4.    If deed has been recorded, presumption that there
                             has been valid delivery.

              5.    If deed has been delivered to TP with conditions (A
                    gives deed to TP to give to B if condition met), and
                    condition has been met, then valid delivery even if
                    physical delivery not yet performed. If grantee
                    wrongfully receives deed (conditions not met), title
                    has not transferred.
      d.    Land description and boundaries
              1.    Oral agreement between landowners to settle
                    boundary line dispute is enforceable,
                    notwithstanding SOF.
      e. Covenants for title
              1.    Breached, if at all, when deed is delivered (do not
                    run with land):
                       a. Covenants for season: Guarantees that
                            grantor owns estate.
                      b.    Covenant for right to convey: Guarantees
                            that grantor owns estate.
                       c. Covenant against encumbrances: Property
                            not subject to any outstanding
                            encumbrances, mortgages, liens or
                            restrictions on the property which would
                            affect value.
              2.    Breached, if at all, after deed is delivered (run with
                    land, and can be enforced by remote grantees);
                    requires showing of damages:
                       a. Covenant for quiet enjoyment: Promise to
                            defend grantee against all lawful claims of
                            grantor or TP’s who would evict grantee.
                      b.    Covenant of general warranty: Promise to
                            defend grantee against all lawful claims of
                            grantor or TP’s who would evict grantee.
                       c. Covenant of further assurances: Grantor will
                            do some further necessary act to perfect
                            grantee’s title. Not used much in the U.S.
2.   Conveyancing by will
      a. Ademption
      b.    Exoneration
      c. Lapse
3.   Priorities and recording
      a. Types of priority
              1.    Recording acts
                       a. Race: Whoever records first prevails.
                      b.    Notice: Subsequent BFP without notice
                            prevails regardless of recording.
                       c. Race/notice: Subsequent BFP without notice
                            who records first prevails.

                      2.   Judgment liens
                      3.   Fraudulent conveyances
                      4.   Protection of bona fide purchasers other than under
              b.   Scope of coverage
                     1.    Recorded documents
                     2.    Elements required
                     3.    Parties protected
                     4.    Interests affected
              c. Special problems
                     1.    After aquired title (including estoppel by deed): If a
                           person executes a deed purporting to convey an
                           estate which he does not own, and grantor later
                           acquires that title, then estate passes to grantee.
                           Subsequent BFP prevails over grantee if grantee
                           failed to record deed.
                     2.    Constructive notice
                     3.    Forged instruments
                     4.    Transfers by corporations and by agents
                     5.    Purchase money mortgages
F.   Real property mortgages
      1.    Types of security devices
              a. Mortgages (including deeds of trust): Security interest for
                   performance (payment) of debt.
                     1.    Instruments: Note is evidence of debt, mortgage is
                           security for the debt. Mortgage must be recorded to
                           be effective against BFP’s.
                     2.    Parties: Mortgagor is the person taking out the
                           mortgage. Mortgagee is the bank.
              b.   Land contracts as security device
              c. Absolute deeds as security
      2.    Some security relationships
              a. Necessity and nature of obligation
              b.   Theories: Title, lien, and intermediate
              c. Rights and duties prior to foreclosure
              d.   Right to redeem and clogging equity of redemption
                     1.    Upon default, but before foreclosure, mortgagor can
                           pay off mortgage debt and reacquire title.
                     2.    After default, mortgagor has a certain amount of
                           time to repay bank mortgage endebtedness, even if
                           there has been a foreclosure sale, in which case
                           mortgagor can receive bank’s profits from proceeds
                           of sale of land (difference between sale price and
                           mortgage amount).
      3.    Transfers by mortgagor
              a. Distinguishing "subject to" and "assuming"

                     1.   If buyer assumes mortgage, then buyer is personally
                          liable to bank for mortgage (in personam).
                     2.   If deed makes no mention of mortgage or says land
                          is "subject to" mortgage, buyer is not personally
                          liable to bank (in personam), but bank can still
                          foreclose on the property (in rem).
              b.   Rights and obligations of transferror
              c. Application of subrogation and suretyship principles
              d.   Due-on-sale clauses
      4.    Transfers by mortgagee (including effect of UCC A3)
      5.    Discharge and defenses
      6.    Foreclosure
              a. Types
              b.   Rights of omitted parties
              c. Deficiency and surplus
              d.   Redemption after foreclosure
              e. Deed in lieu of foreclosure
G.   Misc
      1.    Ownership interests in trusts (including charitable trusts)
              a. Settlors
             b.    Trustees
              c. Beneficiaries
      2.    Special problems
              a. Rule Against Perpetutities
             b.    Alienability, descendability, devisability

VI.   Constitutional Law
       A.    Tip: Boil down to a list of government powers to determine best way to
             uphold a challenged statute.
       B.    Judiciary
               1.   Organization and relationship of state and federal courts in
                    federal system
                       a. A3 vests judicial authority in the (one) Supreme Court, and
                            inferior courts as Congress may establish.
                              1.    Lifetime tenure and salary protection
                              2.    Cases reviewable by higher courts.
                              3.    Lower federal courts can hear most types of cases
                                    that the supreme court can hear, with the exception
                                    of any case between two or more states, which the
                                    supreme court has original and exclusive
                                    jurisdiction over.
                       b.   A1 courts consists of administrative, legislative, military,
                            D.C. and bankruptcy courts.
                              1.    No lifetime tenure
               2.   Jurisdiction
                       a. Constitutional basis of jurisdiction of Supreme Court
                              1.    Original
                                       a. Case involving an ambassador, public
                                            minister, or consul
                                      b.    Any case where state is a party
                                       c. Congress cannot enlarge nor restrict
                              2.    Appellate
                                       a. Congress can enlarge or restrict, but
                                            federalism prevents congress from
                                            precluding review of an entire class of cases
                                            (i.e. exclude all school prayer cases).
                       b.   Congress has plenary power to define and limit jurisdiction
                            of lower federal courts.
               3.   Types of cases heard
                       a.   Appeal by right
                              1.    Very few cases fall into this category:
                              2.    Decision of three-judge federal district court.
                                    Usually an action seeking injunction where quick
                                    decision is required.
                      b.    Certiorary
                              1.    Discretionary: Requires 4 justices to accept case
                              2.    State court decisions
                              3.    Decisions from lower federal courts (U.S. Courts of

4.   Judicial review
      a.    Adequate state grounds
              1.   Applies only to U.S. Supreme Court
              2.   Requires final judgment from state’s highest court
                   that the case may reach.
              3.   Where state court decision establishes both
                   adequate and independent substantive or procedural
                   state ground upon which case was decided,
                   Supreme Court will not hear the case, even though
                   state court may have erroneously decided federal
                   constitutional issue.
      b.    Case or controversy requirement
              1.   Actual and definite dispute between parties having
                   adverse legal interests.
                     a. "Proposed" bill does not create actual case
                           or controversy.
                     b.    Federal courts don’t give advisory opinions,
                           but state courts can.
              2.   Standing
                     a. π has personal stake in outcome: Injury in
                           fact arising from conduct being complained
                     b.    Redressability: Relief sought must eliminate
                           harm alledged. Injury must be fairly
                           traceable to ∆ ’s conduct.
                     c. Third-party standing generally not allowed,
                           except when close relationship between π
                           and TP, and special need to adjudicate exists
                           (i.e. where TP can’t adequately protect their
                           own interest). Examples: Doctor raises issue
                           of abortion for patient, or school for
                           students, or labor union for members.
                     d.    Abstract or generalized grievance (citizen
                           standing) is usually denied.
                              i. State taxpayer has standing to
                                    challenge measurable expenditures.
                                    Example: Challenge to state bussing.
                                    No standing if other than financial.
                                    Example: Bible reading in schools.
                             ii. Federal taxpayer has no standing
                                    because interest is too remote.
                                    Exception for establishment clause
                                    challenge to expenditure under tax &
                                    spend power.
              3.   Ripeness
                     a. Genuine, immediate threat of harm.

              b.     Court’s reason is that future events will
                     sharpen and define the COA. π argues that
                     he will suffer serious hardship by denying
       4.    Mootness
               a. Actual controversy must exist at all stages of
               b.    Exception where injury is capable of
                     repetition, yet evading review. Example:
                     Abortion, where π is no longer pregnant
                     when case is heard.
c.   Political questions
       1.    Non-justiciable issue committed to another branch
             of government.
       2.    Factors
               a. Subject matter
               b.    Respect to other branches of government
               c. Lack of standards which are judicially
       3.    Guarantee clause: Every state guaranteed republican
             form of government. Legislative apportionment can
             be reviewed, and court can compel state to re-
             apportion districts.
       4.    Amendment ratification process: Court cannot
             determine duration of time for state to ratify
             amendment. That is congress’ job.
       5.    Congress and president has exclusive control over
             the military organization, arming or discipline.
       6.    Court cannot determine age, residency and
             citizenship requirements for its members.
       7.    Foreign affairs is reserved for congress and
d.   11 Amendment
       1.    State cannot be sued in federal court by its own
             citizens, citizens of foreign state, or citizens of
             foreign country, without consent.
       2.    Does not bar suits against local government.
       3.    State officials can still be sued for federal law
             violations – just not the government itself.
       4.    When civil rights are involved, courts can strip
             states of 11th amendment immunity.
e.   Abstention doctrine
       1.    Pullman: Federal court will generally abstain where
             unsettled issue of state law exists, because state
             court decision on issue may preclude need for

                           federal review. Federal court retains jurisdiction
                           pending state decision.
                     2.    Younger: Federal court will abstain from pending
                           state criminal proceedings. Prevents π from going to
                           federal court to receive civil injunctive relief from
                           state criminal proceedings. Forces π from going
                           through state criminal proceeding. Also applies to
                           criminally related civil proceedings (welfare fraud)
                           and civil contempt proceedings.
C.   Separation of powers
      1.   Doctrine of enumerated powers
             a. Federal government has only that authority that the
                   Constitution gives it. All other powers retained by states
                   through 10th Amendment, which is where state finds its
                   police powers (health, safety, welfare, morals or aesthetics).
      2.   Powers of Congress (A1§8)
             a.    Commerce
                     1.    Regulation of foreign and domestic commerce.
                     2.    Regulation of any person or thing traveling across
                           state lines.
                     3.    Affectation doctrine: Any activity, which in the
                           aggregate has a substantial economic effect (Lopez
                           school gun case) on the stream of economic
                           commerce may be regulated under the commerce
                     4.    Cumulative impact doctrine: Even an entirely intra-
                           state activity can have a cumulative impact on
                           interstate commerce.
                     5.    Congress can regulate for clearly non-commercial
                           reasons, such as social welfare, health, civil rights
                           in conjunction with enabling clauses of 13th, 14th
                           and 15th amendments (i.e. Heart of Atlanta Motel).
                     6.    10th Amendment: Weak limitation on commerce
                           power, and usually a wrong answer. Inherent
                           governmental powers, state sovereignty, and
                           reserved powers are all tied to 10th amendment, and
                           wrong answers. Generally applicable law (i.e.
                           minimum wage) cannot be defeated by 10th. But
                           Congress cannot require states to enact and enforce
                           a particular federal program (but can put strings on
                           receipt of federal funds).
             b.    Taxing
                     1.    Tax is valid if the dominant intent is fiscal revenue
             c. Spending

              1.  Congress can attach strings to money, but the
                  strings must be reasonable. Even if the strings
                  wouldn’t be proper legislation.
      d.   Power over federal property (A4§3): Congress has the
           power to dispose of and make all rules and regulations
           regarding the territory or other property of the US.
             1.   Wild animals on federal land
             2.   Federal buildings
             3.   Military ships and airplanes
             4.   Indian reservations
      e. War and defense
             1.   Declare war
             2.   Regulate militia
             3.   Raise and support troops
       f.  Necessary & Proper clause: Congress can use any
           reasonable means necessary and proper to execute
           enumerated powers.
      g.   Enforcement of 13th, 14th and 15th Amendments
3.   Powers of President
      a.   Chief executive
             1.   President must faithfully execute the laws.
             2.   Appointment & removal: Can appoint purely
                  executive officers, ambassadors, supreme court
                  justices, etc. with senate consent. Can appoint to
                  agencies and commissions with executive powers
                  without senate consent. Congress cannot appoint
                  inferior officers, but can delegate such appointment
                  to judiciary or executive. President can remove any
                  purely executive official, but not federal judges or
                  fixed-term executive official without good cause.
             3.   Veto legislation within 10 days, subject to override
                  by 2/3rds vote.
             4.   Pardon power: Extends only to offenses against the
                  U.S. (federal crimes, not state crimes).
             5.   Executive privilege: Refusal to disclose
                  information. Absolute as to military and diplomatic
                  secrets; otherwise merely a qualified privilege.
                  Absolute immunity from civil suits for actions taken
                  in office (but Clinton may have changed this).
      b.   Commander-in-chief
             1.   Deploy military troops even before outbreak of war.
             2.   Broad emergency powers
      c. Treaty and foreign affairs
             1.   Shared with congress (not plenary)
             2.   Sources
                    a. Commander in chief

                             b.   Treaty power: Consent of 2/3rds of senate;
                                  regarded as supreme law of the land. If
                                  conflicts with act of congress, last in time
                                  prevails. Versus executive order, which
                                  applies to executive agencies, and isn’t
                                  subject to review.
                             c. Congressional authorization: Delegation of
                                  commerce power to president.
      4.   Federal interbranch relationships
              a. Congressional limits on the excutive
              b.  Presentment requirement and president’s power to veto or
                  withhold action
              c. Delegation doctrine
                    1.    Congress can delegate legislative power to another
                          branch, but it cannot subsequently retract that power
                          via legislative veto.
              d.  Executive, legislative and judicial immunities
D.   Federalism: Relations of nation and states in federal system
      1.   Intergovernmental immunities
              a. Federal immunity from state law: Federal government is
                  immune from state taxation and regulation. But states may
                  tax federal contractors, as long as the federal government
                  isn’t being taxed.
              b.  State immunity from federal law: States generally not
                  immune from federal regulation. 10th and 11th Amendments
                  do not apply. Federal government can tax proprietary state
                  businesses (state businesses which could be created just as
                  easily by private businesses).
      2.   Dormant commerce clause / Authority reserved to the states
              a. Negative implications of commerce clause: If federal
                  government doesn’t regulate it, then states can, so long as:
                    1.    It doesn’t discriminate against interstate commerce
                          in favor of local interests. If the law is intended to
                          further a legitimate purpose, but produces
                          discriminatory impact, the law must be achieved by
                          the least burdensome means available.
                    2.    Doesn’t unduly burden interstate commerce. Uses
                          balancing test. Usually ok if in the areas of roads &
                          highways, health & safety, prevention of fraud, and
                          conservation of natural resources.
              b.  Privileges & immunities clause: Prohibits discrimination
                  by one state of citizens of another state in the areas of basic
                  economic rights or liberties. Example: Different fees for
                  services based on state residency. Applies only to people –
                  not businesses or companies (which would be covered by
                  discrimination against interstate commerce)

              c. Tenth Amendment
              d.   Other
       3.   State taxation
              a. Must be reasonable and nondiscriminatory.
              b.   Must have substantial nexus between state interest and
                   activity being taxed.
              c. Goods in the stream of interstate commerce may not be
              d.   Instrumentalities involved in interstate commerce (planes,
                   trains, boats) can be taxed so long as it is fairly apportioned
                   as to the extent of taxpayer use in the state. Example:
                   Airline can be taxed based on number of days plane is in
                   the state’s airports.
              e. Direct taxes must be apportioned. Indirect taxes must be
                   geographically uniform.
       4.   Supremacy clause
              a. Preemption: If the federal government intends to occupy
                   the area, any conflicting state laws are invalid.
              b.   Supercession doctrine: Federal law supercedes state laws in
                   direct conflict. But in the area of health and safety
                   regulations, state can enact standards which are more strict
                   than federal.
       5.   National power to override or extend state authority
              a. Preemption
              b.   Authorization of otherwise invalid state action
       6.   Relations among states
              a. Interstate compacts
              b.   Full faith and credit
E.   Individual rights (majority of the focus in this section)
       1.   Fourteenth Amendment
              a.   State action requirement
                     1.     State action: Threshhold requirement of government
                            conduct which must be satisfied before private
                            discrimination can be restricted. Without state
                            action, private discrimination is not actionable
                            under the 14th.
                              a. Public function: Private entity performing a
                                    purely state function (exercising powers
                                    traditionally reserved to the state). Example:
                                    Company town. But not privately owned
                                    utility company nor nursing homes.
                              b.    Significant state involvement:
                                       i. Agency of the state (i.e. public
                                      ii. Symbiotic relationship: Government
                                             is intertwined with private business

                    iii.     Private business using state supplies
                             (private school using government
                             supplied textbooks).
                       iv.   Government encouragement or
                             facilitation of private discrimination.
                   v.        But licensing alone is not enough.
b.   Due process
      1.   Substantive
             a. Economic regulation valid if rationally
                 related to legitimate government interest.
             b.  Fundamental rights: Strict scrutiny.
                    i. Privacy: Not mentioned in
                         Constitution, but found in penumbra.
                         Applies only to CAMPER areas:
                           a. Contraception: Use and
                                  purchase, both married and
                           b.     Abortion
                                      i. States can regulate so
                                          long as they do not
                                          create undue burden
                                          on ability to get
                                     ii. Requiring consent of
                                          one parent, guardian,
                                          or a judge (judicial
                                          bypass), is
                                          constitutional (must
                                          have all 3).
                                   iii. Spousal notification
                                          requirement is
                                    iv.   No right to public
                           c. Marriage
                                      i. State cannot forbid
                                          interracial marriage
                           d.     Procreation: Also affected by
                                  limits on contraception.
                           e. Education
                                      i. No fundamental right
                                          to public school
                                          education, but
                                          complete deprivation
                                          is probably illegal.

                    ii.      This affects right of
                             parents to privately
                             educate their children
                             – which is a
                             fundamental right.
              f.    Relations
                       i. Right of related
                             persons to live
                      ii. Does not extend
                             protect homosexual
                     iii. Also covers right to
                             custody of one’s
                             natural children,
                             which requires notice
                             and hearing prior to
                             transfer of custody.
     ii.   Travel: Right to move freely from
           state to state.
             a. Durational residency
                    requirements are
                    unconstitutional for receipt of
                    medical services, welfare
                    benefits, and library services.
                    OK for reduced tuition at
                    state universities, obtaining a
                    divorce, and voting in state
                    elections (50 days).
             b.     Foreign travel is governed by
                    rational basis test.
 iii.      Vote: 1 person, 1 vote
             a. Restrictions on right to vote,
                    such as land ownership, are
             b.     Exception: Special limited
                    purpose districts can go
                    outside the 1 person, 1 vote
                    rule. Example: Water storage
                    district – voting can be
                    limited to only landowners,
                    and can be in proportion to
                    amount of land owned.
             c. Reapportionment:
                    Boundaries cannot be defined
                    to deny numerical equality

                           among voters (i.e. reduce
                           power of an ethnic group or
                           segregate school district).
                     d.    Jerrymandering is
                           Apportionment scheme
                           deliberately distorting
                           political districts for partisan
                           political purposes.
                     e.    Ballot access can be
                           restricted by requiring
                           petitioner to have reasonable
                           number of signatures, or
                           reasonable filing fee,
                           minimum residency and age
                           for candidates.
2.   Procedural
       a. Notice and hearing available whenever there
            is a serious deprivation of life, liberty or
            property interest (right or privilege).
               i. Liberty interest exists:
                       a. Right to K
                      b.    Right to engage in gainful
                       c. Right of natural parents in
                            care and custody of their
                      d.    Right to refuse unwanted
                            medical procedures
              ii. Property interest exists:
                       a. Welfare benefits (pre-
                            termination hearing)
                      b.    Disability benefits (post-
                            termination hearing)
                       c. Public elementary and
                            secondary education
                      d.    Garnishment of wages
                       e. Continued public
                            employment, where cause is
       b.   Balance severity of harm if procedures are
            not granted against government interest in
            administrative efficiency (cost).
3.   Takings (5th and 14th): Private property taken for
     public use by confiscation, physical occupation,

             regulation denying owner all reasonable
             economically viable use of land.
               a. Eminent domain: Just compensation must be
               b.      Inverse condemnation: Just compensation
                       must be paid.
               c. Police power: No compensation paid. Areas:
                       Land use, zoning, environmental protection
                       legislation, landmark preservation.
c.   Equal protection: Used where law affects some persons,
     but not all. If it affects all, use substantive due process.
     Applies to federal gvmt via 14th, and states through 5th.
       1.    Strict scrutiny
               a. Applies to
                          i. Protected 1st amendment rights
                         ii. Suspect classifications (RAN)
                                  a. Race
                                            i. Purposeful,
                                               discrimination must
                                               be shown. Impact
                                               alone is insufficient.
                                           ii. De jure segregation is
                                         iii. Bussing: Can be used
                                               to achieve
                                               desegregation, and
                                               racial quotas can be
                                               used to determine
                                               who is to be bussed.
                                               Temporary measure to
                                               remedy past
                                               Individual schools
                                               may not be required
                                               to adhere to precise
                                               district-wide ratios.
                                          iv.  De facto segregation
                                               is not
                                           v.  Benign classification
                                               (affirmative action) in
                                               employment, college
                                               preferences, hiring:

                      Strict scrutiny applies.
                      Relevent pool is the
                      qualified applicant
                      pool – not total
                      minority population.
                      Requires very precise
                      findings of past
                      Virtually all quotas
                      will be held
                      Numerical goals are
                      more favored.
         b.   Alienage
                 i. Federal
                      discrimination against
                      aliens subject to
                      rational basis scrutiny.
                      Fed. has plenary
                      power over aliens
                      under A1§8 (INS).
                ii. State discrimination
                      against aliens subject
                      to strict scrutiny.
                      Exception where
                      participation in
                      government is
                      involved (rational
                      basis): Public school
                      teachers, police
                      officers, and jury
                      service. Illegal alien
                      children are entitled
                      to free public
          c. National origin
         d.   Criteria: Characteristics
              which are unalterable, and
              history of purposeful unequal
          e. Reemptory jury challenges
              on the basis of race violate
              EP and are unconstitutional
              in both civil and criminal
 iii.   Fundamental rights

                                          a. Privacy (CAMPER)
                                          b.   Travel
                                          c. Vote
                       b.     Burden: State must show that the law is
                              necessary to a compelling interest. No less
                              restrictive alternative means available.
               2.    Intermediate scrutiny
                       a. Applies to
                                 i. Gender: Statutory sexual stereotypes
                                       usually unconstitutional (i.e. public
                                       school which only admits women).
                                       Affirm. action ok to remedy past
                                       disadvantage, so long as means are
                                       substantially related to important
                                       government interest.
                                ii. Illegitimacy: Any law which benefits
                                       legitimate children and prejudices
                                       illegitimate children will likely be
                                       invalid. Example: Inheritance under
                                       intestacy. Intentional discrimination
                                       required: Impact or effect is not
                       b.     Burden: State must show that the law is
                              substantially related to an important state
               3.    Rational basis
                       a. Applies to all other areas not already
                              covered. Most common are: Poverty, age,
                              mental retardation, necessities of life, social
                              and economic welfare measures.
                       b.     Burden on π to show that the law is not
                              rationally related to any legitimate interest.
                       c. π usually loses.
       d.    Privileges and immunities clause
               1.    Always a wrong answer on the MBE.
               2.    Rights of national citizenship is protected, i.e. right
                     to petition congress for redress of grievances, right
                     to peacefully assemble, right to use navigable
2.   Obligation of contracts, bills of attainer, ex post facto laws
     (usually wrong answers)
       a. A1§10: States cannot impair obligation of both public and
             private K’s, unless significant public need exists (police
             power - broad).
       b.    Ex-post facto laws: Makes criminal an act that was not a
             crime when committed, increases the punishment, or

            decreases amount of evidence needed. No application to
            civil laws.
       c. Bill of attainer: Legislative punishment of named group or
            individual without judicial trial.
3.   First Amendment
      a.    Religion and separation of church and state
              1.    Government involvement must be neutral
                      a. Government involvement must not lead to
                           excessive entanglement: Chaplan ok at
                           hospital or prison (balance establishing
                           religion with free exercise), but not public
              2.    Establishment
                      a. Government may not pass a law preferring
                           or aiding one religion over another. Test:
                              i. Primary purpose of law must be
                             ii. Primary effect of law must neither
                                    advance nor inhibit religion.
                            iii. Law must not forster excessive
                                    government entanglement with
                      b.   Government sponsored religious activities in
                           public schools are unconstitutional.
                           Examples: Required non-denominational
                           prayer. Daily bible reading, even if excusal
                           allowed. Moment of silent voluntary prayer.
                           Forbidding teaching of evolution.
                      c. Government aid to religious schools for
                           construction grants and salary supplements
                           is unconstitutional at elementary and
                           secondary levels.
                      d.   Government aid to parochial schools, which
                           cannot even possibly be used for religious
                           purposes, is constitutional. But also has to
                           be made available to public schools on same
                           terms. Examples: Bussing (but not for field
                           trips), health tests, loan of textbooks (but not
                           a/v equipment – might be used for religious
                      e. Tax benefits
                              i. Direct tuition reimbursement to
                                    parents of children in religious
                                    schools is unconstitutional because
                                    of direct effect of aiding religion.

                       ii.Property tax benefits for schools
                          themselves is ok.
                   iii. Sale of religious material can be
             f.   Opening prayers: Based on long tradition of
                  practice, opening prayer is ok if done by
                  state legislator, but not judge.
             g.   Public displays: OK so long as secular
                  purpose (celebrate holiday season) such that
                  benefit to church is incidental, and no
                  excessive entanglement. Examine who
                  erected the display (city good, church bad),
                  and what it contained (no one religion
      3.   Free exercise
             a. Violation where government burdens
                  persons because of their religious beliefs.
             b.   Beliefs are absolutely protected. Court may
                  not determine reasonableness of beliefs
                  (whether one religion is right and another is
                  wrong or invalid), but court can determine
             c. Conduct in furtherance of those beliefs may
                  be regulated. Courts balance burden to
                  person vs. government interest in regulation
                  of that conduct.
                      i. Generally applicable criminal law
                          can be applied regardless of burden
                          because legislature did not intend to
                          burden religion with law. Example:
                          Indians can’t smoke peyote. If
                          legislature did intend to burden
                          religion, then the law is invalid.
             d.   Examples (free exercise claim usually
                      i. Polygamy can be regulated
                     ii. Sunday closing laws are
                          constitutional despite Jews who
                          wanted to open on Sunday to be
                          closed on Saturday
                   iii. Jews can be prohibited from wearing
                          yarmulke in military
                    iv.   Public welfare benefits cannot be
                          denied for refusing to work on day of
b.   Methodologies

1.   Content specific or content neutral?
       a. Content specific regulation of protected
             speech must meet strict scrutiny.
      b.     Content specific regulation of unprotected
             speech must be one of these areas:
                i. Clear and present danger
               ii. Defamation
              iii. Obscenity
              iv.     Child pornography
               v.     Fraudulent commercial speech
              vi. Fighting words
       c. Content neutral regulation
                i. Time, place and manner restrictions
               ii. Requirements
                        a. Serve significant government
                        b.   Narrowly tailored
                        c. Leave open alternative
                             channels of communication.
              iii. Types of forums
                        a. Traditional public forum
                             (street, park, sidewalk, airport
                             terminal, government office
                        b.   Limited public forum
                             (library, school, state
                        c. Nonpublic forum (jail,
                             military base, inside of
                             courthouse, private
                             billboard): Government may
                             prohibit all free speech.
                             Regulation need only be
                             reasonable (rationally related
                             to some legitimate
                             government interest).
                        d.   Private property (privately
                             owned shopping center): No
                             right to free speech.
2.   Facially invalid:
       a. Overbroad: Punishes both protected and
             unprotected speech.
      b.     Vagueness: So unclearly defined that
             persons of ordinary intelligence must guess
             as to its meaning.

               c.     Prior restraints: Censorship, licensing,
                      permits, injunctions. Government
                      restrictions in advance of publications are
                      unconstitutional. Exception for national
                      security, and obscene material (but seizure
                      of books requires warrant and probable
                      cause, and film requires prompt judicial
               d.     Unfettered discretion in licensing official
c.   Regulation of speech content
      1.    Clear and present danger: Speech may be punished
            if it is directed at producing imminent unlawful
            conduct and likely to produce such unlawful
      2.    Defamation
               a. Actual malice (knowing falsity or reckless
                      disregard for truth) required for recovery if
                      π is:
                         i. Public officials
                        ii. Limited public figures: Voluntarily
                               injects himself into public eye for
                               limited time.
                       iii. Public figures: Celebrity or sports
               b.     Private person must show mere negligence
                      for a matter of public concern to recover.
                      For matter of private concern, all π has to
                      show is that false statement was made.
                      Showing of malice can recover punitive
      3.    Obscenity
               a. Test
                         i. Material appeals to prurient interest
                               in sex, applying contemporary local
                               community standards.
                        ii. Depict sexual conduct in a patently
                               offensive way, determined by local
                               community standards
                       iii. Lacks serious literary, artistic,
                               political or scientific (LAPS) value.
                               Reasonable person standard.
               b.     Offensive language may be restricted
                      without passing test on airwaves because
                      children have unsupervised access.

              c.   Private possession is protected in privacy of
                   home, but everything else (purchase, send in
                   mails) can be restricted.
              d.   Zoning: Can be used to regulate location and
                   distribution of adult theatres and bookstores.
              e. Liquor: State can regulate non-obscenity
                   (i.e. nude dancing) in establishments
                   licensed to serve liquor.
      4.    Child pornography
              a. Can be punished even if not obscene.
              b.   Private possession can be punished.
      5.    Fraudulent commercial speech
              a. Harmful and illegal products can be
              b.   Solicitation by lawyer is prohibited (lawyer-
                   initiated), but advertising is protected.
              c. Utilities have a right to include advertising
                   with bills.
              d.   Solicitation: Balance individual’s right to
                   privacy with freedom of commercial speech.
                   Evaluate prior restraint, overbreadth,
                   alternative means of advertising, narrowly
      6.    Fighting words
              a. Insults likely to provoke ordinary person to
                   commit an act of violence.
              b.   Statute must be viewpoint neutral (not just
                   based on race, religion or gender).
d.   Other
      1.   Content
      2.   Public employment, licenses, benefits based on
           exercise of expression and association
      3.   Licensing required for free speech
             a. Requirements
                      i. Content and viewpoint neutral
                     ii. Narrowly drawn
                    iii. No unfettered discretion
             b.   Subject to facial attack (overbroad, vague,
                  prior restraint)
             c. Scenarios
                      i. Statute valid, but unconstitutional as
                          applied to speaker (permit
                          wrongfully denied or too restrictive):
                          Speaker must apply for permit, be
                          denied, and seek prompt judicial
                          relief BEFORE SPEAKING.

                ii.   Statute void on face: Speaker may
                      speak even without having applied
                      for permit, and successfully defend
                      against prosecution.
             iii.     Injunction against speaking: Speaker
                      must obey injunction even if facially
                      invalid. Appeal the injunction.
                      Invalidity of injunction is not a
                      defense to charge of contempt from
                      disobeying injunction.
4.   Association
       a. Membership cannot be punished unless:
               i. Organization advocates unlawful
              ii. Individual is a knowing and active
             iii. Individual has specific intent to
                    further illegal objectives of
       b.   Membership lists can be forcibly disclosed if
            government interest outweighs interference
            to right to freely associate. Communist
            party, ACLU and NAACP can’t be required,
            but KKK probably can. Generally can’t
            require disclosure unless membership would
            be illegal
       c. Loyalty oath as condition to public
            employment generally invalid, but can
            require oath to support and uphold
            constitution and oppose violent overthrow of
5.   Freedom of press
       a. No special 1st Amendment privilege beyond
            what is afforded to private citizen.
       b.   Warrant required for search of news room
       c. Newsperson has no privilege to refuse to
            disclose sources of information to grand
            jury. But many states do have shield laws
            which do afford such a privilege.
       d.   Criminal trial can be closed to the press if
            compelling or overriding state interest is
            shown, and closure is narrowly tailored so
            that ∆ ’s right to public trial isn’t interfered
       e. Fairness: Broadcasters can be required to
            provide equal time to both sides of an issue

                                   because of limited airwaves. Newspaper
                                   cannot be so required.
                      6.    Symbolic speech: Medium itself is the message
                              a. Regulation must further significant
                                   government interest
                              b.   Narrowly tailored
                              c. Leave open alternative channels
                              d.   Example: Draft card burning can be
                                   prohibited because of the need for smooth
                                   running of draft system. Black armband and
                                   flag burning is protected (ban would be
                                   content specific and lacks significant
                                   government interest).
        4.   Selective incorporation of bill of rights to states via 14th
             amendment due process clause
               a. Do not apply:
                      1.    Right to carry arms
                      2.    Right to grand jury in criminal cases
                      3.    Right to jury trial in civil cases
                      4.    Right against excessive bail



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