Outlines

• Business Associations Outline
• Civil Procedure
• Conflicts of Law Outline
• Constitutional Law Outline
• Contracts Outline
• Criminal Law & Procedure Outline
• Evidence Outline
• Family Law Outline
• Real Property Outline
• Secured Transactions Outline
• Torts Outline
• Trust, Wills, & Estates Outline

Business Associations Outline

Agency Relationships

I. Formation

• An agency relationship is formed when a principal (P) consents to have an agent (A) act on P’s behalf and subject to P’s control, and the agent consents to the relationship.
• P must have the contractual capacity to enter into the relationship. A does not need capacity but must have the mental capability to do what they have been appointed to do.
• Consent can be expressed orally or in writing, implied by P’s conduct, or misinterpreted by a third party. Consideration is not required and writing is generally unnecessary.
• An agency relationship can be formed by estoppel when a third party relies on P’s communication.
• Types of agents
• Individual
• Employee: paid hourly or for long periods, work is integral to P’s business, and work is completed under P’s direction.
• Independent contractor: not subject to P’s control over the physical conduct of A’s work.
• Gratuitous agent: no compensation for A’s work.
• Trustee: subject to the control of the settlor or beneficiary.
• Subagent: appointed by A to perform the functions agreed to by A.

II. Termination

• Termination by will:
• Either party can manifest intent to cease the relationship (P revokes or A renounces).
• Effective when notice is received by the other party.
• Can be terminated if the purpose of the agency is fulfilled.
• P must give notice of termination to protect against liability to third parties who previously relied on the agent’s authority.
• Actual notice: to those who have previously dealt with A.
• Constructive notice: to third parties who have not actually relied on P.
• Termination by operation of law:
• Death
• Loss of capacity: requires notice to third parties for termination to be effective against them.
• Bankruptcy of the principal
• Breach of fiduciary duty
• Cessation of existence: applies to non-individual entities.
• No notice required for death or lack of capacity.

Power of Agent to Bind Principal

I. Actual Authority

• Exists when the agent reasonably believes, based on P's manifestations, that P wants A to act.
• Created through words or conduct that reasonably cause A to believe P desires them to act on P’s behalf.
• A’s belief must be reasonable and in line with P’s objectives.
• Types:
• Express: P gives clear and direct instructions for a specific task.
• Implied: A has authority to do what is reasonably necessary to carry out express authority.
• Incidental authority: to do acts incidental to or reasonably necessary to accomplish the transaction.
• Ratification: P affirms A’s conduct that was originally unauthorized.
• P must have knowledge of all material facts and capacity at the time of ratification.
• P can ratify by manifesting assent or engaging in conduct only justifiable if they intended to ratify.

II. Apparent Authority

• Exists when a third party reasonably believes that A has authority to act based on P’s manifestations.
• Created by P’s words or conduct that lead the third party to believe A is authorized.
• Apparent authority cannot be created when P is undisclosed.
• Third party has a duty to inquire if they have reason to doubt A’s authority.
• Agency by estoppel: P is estopped from denying A’s apparent authority if they silently allow A to act on their behalf.

III. Inherent Agency Power

• A’s power to bind P even without actual or apparent authority based on the agency relationship.
• Exists to protect those harmed by A.
• P liable if A acts improperly and fails to inform the third party of exceeding their authority.
• Scope:
• General agent: P liable for acts usually done in connection with authorized transactions, even if forbidden by P.
• Rationale: Fair for P to bear losses when A exceeds authority but acts in a way usual for the type of transaction.
• Third Restatement:
• Eliminates inherent agency power but incorporates similar concepts into apparent authority.
• Undisclosed P liable if third party detrimentally relies on A and P doesn’t take steps to notify the third party.

Vicarious Liability of Principal for Acts of Agent

I. Contractual Liability

• P liable on contracts entered into by A with actual or apparent authority, by estoppel, by inherent agency power, or by ratification of an unauthorized act.
• Extent of liability depends on P’s disclosure to the third party:
• Disclosed P: third party knows A is acting for P and knows P’s identity.
• P is liable, A is not liable.
• Partially disclosed P: third party knows A is acting for P but doesn’t know P’s identity.
• Both P and A are liable unless otherwise agreed.
• Undisclosed P: third party doesn’t know A is acting for a P.
• P is liable, A may also be liable.
• General agent: P liable for usual or necessary acts, even if not expressly authorized.
• Special agent: P liable only for acts done with authority (actual, apparent, inherent, ratification, estoppel).

II. Liability of Third Party to Undisclosed P

• Third party liable to P as if P made the contract unless P is excluded by the contract or P’s existence was fraudulently concealed.
• A is still a party to the contract even if acting for an undisclosed P.

III. Tort Liability

• P liable for own torts and torts of A with authority.
• Direct liability:
• P liable for negligence in hiring or supervising A.
• Vicarious liability:
• P liable for A’s torts if:
• Master-servant/employment relationship exists.
• A is an employee subject to P’s control.
• A’s tort occurred within the scope of employment.
• Act done to further P’s interests.
• Of the same general nature as authorized acts or incidental to authorized acts.
• P is generally not liable for torts of an independent contractor unless:
• Misrepresentations by the independent contractor are made for P’s benefit.
• Inherently dangerous activities are involved.
• Apparent authority exists.
• Agent not serving P’s interests: P still liable even if A acts for their own purposes unless third party has notice.
• Secret limiting instructions: P liable even if A violates limitations not disclosed to the third party.

Fiduciary Duties Between Principal and Agent

I. Duties of Agent

• Duty of care:
• Act with reasonable care and skill to achieve the intended result.
• Gratuitous agents: held to a lower standard, only liable for gross negligence.
• Third Restatement: duty of performance includes competence, diligence, good conduct, providing information, safeguarding P’s property.
• Duty of loyalty:
• Place P’s interests above own.
• Disclose all facts that threaten P’s interests.
• Liable for profits gained from violating duty.
• Includes duty to avoid competition and use of confidential information.
• Post-termination: cannot use trade secrets or compete if bound by a reasonable non-compete covenant.
• Third Restatement: duty of loyalty expanded to include:
• Acting for P’s benefit in all matters.
• Not acquiring material benefit for personal gain.
• Not acting adversely to P.
• Not using P’s property or information for personal gain.
• Not competing with P.
• Duty of obedience:
• Act within actual authority and follow P’s instructions.
• Third Restatement: incorporated into duty of performance.
• Duty to account:
• Account for violations of fiduciary duties and profits gained in breach of loyalty.

II. Duties of Principal

• Act in accordance with the contract terms.
• Duty to indemnify:
• Reimburse A for payments and expenses incurred within the scope of authority.
• Duty to deal fairly and in good faith:
• Provide information to A regarding risks of harm or loss.
• Not injure A’s business reputation.

Creation of Partnerships

I. Types of Partnerships

• General Partnership (GP): Two or more general partners.
• Limited Partnership (LP): At least one general partner and one limited partner. GPs are personally liable for partnership obligations while LPs have no personal liability beyond their contributions.
• Limited Liability Partnership (LLP): Protects general partners from personal liability. Partners are not personally liable for the LLP's obligations, but are personally liable for their own wrongful acts.

II. Formation

• Partnerships are governed by the default rules of the Revised Uniform Partnership Act (RUPA), which may be modified by agreement.
• Intent: Two or more persons or entities must intend to carry on a for-profit business as co-owners.
• No specific intent to form a partnership is required.
• Intent may be implied through conduct such as profit sharing, joint title to property, or parties’ designation as partnership.
• Partnership agreement (PA): Can be written, oral, or implied by conduct.
• Generally governs relations between partners and the partnership.
• Can opt out of most of RUPA’s default rules, but cannot:
• Unreasonably restrict a partner's access to books and records.
• Remove the partner's duties of loyalty and care.
• Disallow a partner’s right to dissociate (but can require written notice of intent to withdraw).
• Statute of Frauds: A written agreement is not required for formation, but a contract that cannot be performed within one year must be in writing.
• Filing:
• LP and LLP require filing a certificate with the secretary of state’s office.
• LP: must include “limited partnership” or an abbreviation in the name.
• LLP: must include “limited liability partnership” or an abbreviation in the name.

Power and Liability of Partners

I. General Partners (in GP and LP)

• Management: Each general partner has equal rights to manage the partnership and conduct business unless the PA states otherwise.
• Decisions within the ordinary course of business require a majority vote.
• Decisions outside the ordinary course of business require unanimous consent of all general partners.
• Authority: A general partner binds the partnership when acting within the ordinary course of business.
• Acts outside the ordinary course of business bind the partnership only if all general partners consent.
• Apparent authority exists when a GP acts in the ordinary course of business unless:
• The GP did not have authority to act in that particular matter.
• The person with whom the GP is dealing knew or had notification that the GP lacked authority.
• Actual authority can come from express agreement or a partner’s reasonable belief based on communication with other GPs.
• Liability:
• Personally liable for all partnership debts, including torts committed by a partner in the ordinary course of business or with authority from the partnership.
• Jointly and severally liable.
• A partner may sue other partners for contribution if they did not pay their pro rata share.
• New partners are not personally liable for obligations arising before they joined.
• Outgoing partners are liable for obligations arising while they were a partner, unless there was payment, release, or novation.
• Criminally liable only for their own crimes or participation.

II. Limited Partners

• Liability:
• Not personally liable for debts of the LP, except for their capital contribution, even if they participated in management.
• Rights:
• Right to seek information reasonably related to their interest as a limited partner.
• Inspect and copy tax returns and other documents required by law.
• Obtain information about the partnership’s financial condition and state of business.
• No right to co-manage the partnership or engage in partnership business.

III. Transfer of Titled Partnership Property

• A partner may have authority to transfer titled partnership property in certain circumstances.
• Property held in the partnership's name: A partner has the authority to execute an instrument of transfer in the partnership's name.
• Property held in a partner's name: A partner has the authority to execute an instrument of transfer in the partner's name if:
• The title to the property was in the partner's name before it became partnership property.
• The property is held in the partner's name but the partner is identified as a partner in the instrument of transfer.
• A person owning all partners’ interests: Effectively has title to all partnership property and the power to transfer title to himself.

Rights of Partners Among Themselves

• Profits and losses:
• Profits are shared equally unless the PA states otherwise.
• Losses are shared in proportion to the sharing of profits.
• A partner who pays more than their share of losses has a right to contribution from partners who did not pay their share.
• Management and control:
• Each partner has equal management rights and actual authority to conduct usual and customary partnership matters unless there is reason to consult other partners.
• A majority vote is needed for ordinary business decisions.
• Unanimous consent is required for matters outside the ordinary course of business and amendments to the PA.
• Remuneration: No remuneration for services except for reasonable compensation for winding up the partnership's business.
• Reimbursement and indemnification:
• The partnership must reimburse a partner for loans made to further partnership business.
• The partnership must indemnify partners for personal liability incurred in the ordinary course of partnership business.
• Use of partnership property: A partner cannot derive personal benefit from the use or possession of partnership property and must compensate the partnership for such use.
• Access to records: The partnership must permit partners and their agents to access all partnership records.
• Lawsuits:
• The partnership may sue a partner for breach of the PA or violation of duty.
• A partner may sue the partnership or another partner to enforce their rights under the PA or RUPA.
• Settlement of account upon dissolution: Each partner is entitled to a settlement of their account upon dissolution.
• Property:
• Property acquired by the partnership is owned by the partnership, not the individual partners, and is not freely transferable.
• A partner has no right to use partnership property other than for the benefit of the partnership.
• Titled property:
• Partnership property if titled in the name of the partnership or a partner (and noted in the title).
• Rebuttably presumed to be partnership property if purchased with partnership funds.
• Rebuttably presumed to be separate property if not purchased with partnership funds, even if used for partnership purposes.
• Untitled property: Ownership is determined by common law criteria.
• Interest:
• The economic right to an interest in the partnership is personal and transferable without dissolving the partnership.
• The transferee is only entitled to receive distributions, the transferor retains other rights and duties.

Dissolution

I. Dissociation

• A partner has the power to dissociate or dissolve at any time.
• Events causing dissociation:
• Partner's notice of withdrawal.
• Partner’s expulsion due to the PA, unanimous vote of other partners, or bankruptcy.
• Partner's death or incapacity.
• Termination of an entity partner.
• Agreed event or event that makes continuation unlawful.
• Judicial order.
• Wrongful dissociation:
• A partner is liable for damages caused by wrongful dissociation.
• Partnership unlimited by time or undertaking: Wrongful only if in breach of the PA.
• Partnership for a definite term or undertaking: Wrongful if the partner withdraws, is expelled by court order, is a debtor in bankruptcy, or is not an individual, trust, or estate and willfully dissolved or terminated before the term expires or the undertaking is completed.
• Consequences of dissociation:
• Ends the partner’s rights to manage and conduct partnership business.
• Partner remains liable for obligations incurred before dissociation.
• Ends the partner's duties of loyalty and care going forward, but duties for matters occurring before dissociation continue.
• The ongoing partnership must buy out the dissociated partner's interest.
• The partnership must indemnify the dissociated partner against all partnership liabilities.

II. Dissolution

• Causes:
• Applicable to all partnerships:
• It becomes illegal to carry on the partnership's business.
• Occurrence of an event specified in the PA.
• A partner may file an application to dissolve the partnership if:
• The economic purpose of the partnership is likely to be unreasonably frustrated.
• Carrying on the business in conformity with the PA is not reasonably practicable.
• Carrying on the business with a particular partner is no longer reasonably practicable due to their conduct.
• Applicable to at-will partnerships only:
• Dissolution occurs if one partner gives notice of their express will to withdraw.
• Limited Partnerships:
• If the sole general partner dissociates, the LP dissolves unless a new general partner is admitted within 90 days.
• If the sole limited partner dissociates, automatic dissolution unless a new limited partner is admitted within 90 days.
• Consequences:
• Partnership continues to exist only for the purpose of winding up the business.
• Partnership terminates after winding up is complete.
• Partners may waive dissolution by unanimous vote of partners who have not wrongfully dissolved.
• Winding Up:
• Involves selling and settling partnership affairs before termination.
• A person winding up the partnership may dispose of and transfer partnership property, discharge liabilities, and distribute assets to settle partners' accounts.
• After dissolution, the partnership is bound by a partner's act appropriate for winding up and any act that would have bound the partnership before dissolution if the other party does not have notice of the dissolution.
• Each partner is liable to the other partners for their share of partnership liability.
• Creditors have priority over partners to the partnership’s assets.
• The partnership may resume business as if dissolution never occurred before winding up is complete.
• Distribution of Assets:
• Creditors are paid first, then partner creditors, then non-creditor partners' accounts (buy-ins), and finally, settlement of remaining assets.
• Settlement: Partners must contribute or receive distributions of the +/- balance in proportion to their profit/loss sharing.

Special Rules Concerning Limited Partnerships

• Formation:
• Formed by filing a certificate of limited partnership with the secretary of state, signed by all named general partners.
• Must have at least one general partner and one limited partner.
• The certificate must substantially comply with statutory requirements or the entity may be considered a general partnership.
• Limited Partner Rights:
• Limited partners have the right to vote as permitted under the PA and to inspect business and financial records.
• They can lend money and transact business with the LP like a non-partner.
• They have the right to seek information for a purpose reasonably related to their interest as a limited partner.
• This includes the right to inspect and copy tax returns and other documents required by law, as well as to obtain information about the partnership’s financial condition and business.
• Limited partners have no right to co-manage the partnership or engage in partnership business.
• They can access required information in the LP's designated office upon 10 days’ demand.
• They can inspect and copy information regarding the state of the LP’s activities and financial condition if:
• The purpose is reasonably related to their interest as a limited partner.
• They make a demand describing the information and purpose with reasonable particularity.
• The information is directly related to the purpose.
• Dissociated limited partners have similar rights to inspection and copying if the information pertains to the period they were a limited partner and they meet the requirements outlined above.
• Limited Partner Duties:
• Duties of good faith and fair dealing.
• General Partners:
• Have the rights and powers of a partner in a partnership without limited partners.
• May contribute to the LP, share in profits and losses, and receive distributions.
• Personally liable to third parties for LP obligations.
• May withdraw from the LP by giving written notice to other partners.
• Contributions:
• Partners can contribute cash, property, or services.
• Partners are obligated to fulfill any written, enforceable promise of a future contribution.
• Profits and Losses:
• May be allocated on any basis agreed to in writing.
• Otherwise, allocated based on each partner's contributions.
• Distributions:
• May be allocated on any basis agreed to in writing.
• Otherwise, allocated based on how profits/losses are shared.
• Assignment of Partnership Interest:
• A partner's interest in an LP is personal property that can be assigned in whole or in part.
• The assignee generally only has rights to receive distributions.
• Termination:
• Occurs after dissolution and winding up.
• Dissolved upon:
• Occurrence of a specified event.
• Written consent of all general partners and a majority of limited partners owning distribution rights.
• Withdrawal of a general partner.
• Judicial determination.
• Winding up:
• Generally done by general partners, but limited partners may wind up if there are no general partners.
• Assets are distributed first to creditors, then to partners.
• Derivative Actions:
• A limited partner has the right to bring a derivative action on behalf of the LP.
• Disclosure Requirements:
• LPs must maintain certain required information at their designated office, including:
• List of partners with names and addresses.
• Copies of the certificate of limited partnership, amendments, restatements, and powers of attorney.
• Copies of articles of conversion or merger.
• Federal, state, and local income tax returns and reports for the three most recent years.
• Copy of the partnership agreement and any amendments.
• Financial statements for the three most recent years.
• Copies of the three most recent annual reports.
• Records of consents and votes taken by partners.
• Information regarding partner contributions, profit/loss sharing, and dissolution events.
• General partners and the partnership must disclose information to other general partners, either without demand or upon demand.
• Without demand: Any information reasonably required for the general partner to exercise their rights and duties.
• Upon demand: Any other information concerning the LP's activities unless the demand is unreasonable or improper.
• The LP may impose reasonable restrictions on the use of disclosed information and charge reasonable costs for copying.
• The LP has a duty to disclose information to limited partners before they are required to give or withhold consent to a matter.
• This includes all material information known to the LP, even if the LP does not know it is material.
• Control Limitation:
• A limited partner is generally not personally liable for LP obligations solely due to being a limited partner, even if they participate in management and control.
• Exceptions:
• Limited partner's name is used in the LP name.
• Limited partner is acting as a general partner.
• Limited partner's participation in control creates a reasonable belief among those transacting business with the LP that they are a general partner (under certain jurisdictions).
• Safe Harbor Provisions:
• Certain activities, such as dissolving the LP, selling assets, or removing the general partner, will not expose limited partners to personal liability.
• New Partners: Bringing in new partners requires unanimous approval of the existing partners.

Formation of Organizations

I. Corporations

• A. De Jure Corporation
• Formed when all statutory requirements for incorporation are met.
• Incorporators file articles of incorporation with the Secretary of State, which must include:
• Corporate name
• Number of authorized shares
• Agent information
• Incorporator information
• Statement of incorporation
• Lawful corporate purpose and perpetual duration are presumed.
• Substantial compliance with the statute is sufficient.
• Ultra Vires Acts
• Acts beyond the scope of the corporation's stated purpose.
• Common law: UVAs may be void and unenforceable.
• RMBCA: UVAs generally enforceable, but can be challenged by:
• Shareholder suit to enjoin the proposed UVA
• Corporate action for damages against directors, officers, or employees who engaged in the UVA
• State action to dissolve the corporation for committing the UVA
• B. Defective Incorporation
• Occurs when there is a defect in the incorporation process.
• De Facto Corporation
• Treated as a corporation with limited liability if:
• Organizers made a good-faith effort to comply with the incorporation process.
• Organizers have no knowledge of the defect.
• Defense is available except against the state seeking dissolution.
• Corporation by Estoppel
• Parties who acted as if there were a corporation are estopped from denying its existence.
• Cannot avoid liability in contracts, but not applicable to tort victims.
• Piercing the corporate veil is not available to reach shareholders.
• C. Limited Liability Company (LLC)
• Owners (members) have limited liability.
• Legally treated like corporations in most aspects.
• Terminology and taxing features differ from corporations.
• Analyze LLCs under general corporate law principles.
• Piercing the Corporate Veil
• Courts may pierce the veil if:
• LLC is being used as a façade for a dominant shareholder's personal dealings (alter ego or mere instrumentality).
• There is unity of interest and ownership between the LLC and its members, making it unjust or inequitable to uphold limited liability.
• Factors considered: undercapitalization, disregard of corporate formalities, commingling of assets, self-dealing, siphoning of funds, using the corporate form to avoid legal requirements, shareholder domination, and fraudulent dealings with creditors.
• D. Professional Corporation (PC)
• Formed by licensed professionals.
• Shareholders are personally liable for their own malpractice but not for the malpractice of others.

Pre-Organization Transactions

I. Promoter Liability

• A. Pre-Incorporation Contracts
• A promoter acts on behalf of a corporation not yet formed.
• Promoters are personally liable for obligations under pre-incorporation contracts.
• Liability continues even after the corporation is formed, unless:
• Novation releases the promoter from liability.
• Third party looks only to the corporation for performance.
• Promoter had no actual knowledge that the corporation's charter was not yet issued.
• Adoption of Contract
• Corporation can become bound by the promoter's contract through:
• Express adoption
• Implied adoption by accepting the benefits of the transaction
• B. Fiduciary Duty
• Promoters owe fiduciary duties to the corporation.
• Can be liable to the corporation for breach of fiduciary duties.
• Duties continue until novation occurs.
• C. Compensation
• Promoters may seek compensation or reimbursement for expenses related to pre-incorporation activities.
• Cannot compel the corporation to pay because the acts were not undertaken at the corporation's direction.

Piercing the Corporate Veil

I. General Principles

• A. Limited Liability
• General rule: Shareholders are not personally liable for the debts of the corporation, only for their investment.
• Exceptions: Courts may pierce the veil to prevent fraud or injustice.
• B. Factors Considered
• Courts consider various factors when deciding whether to pierce the veil, including:
• Unity of interest and ownership (alter ego or mere instrumentality)
• Undercapitalization
• Disregard of corporate formalities
• Commingling of assets
• Self-dealing
• Siphoning of funds
• Using the corporate form to avoid legal requirements
• Shareholder domination
• Fraudulent dealings with creditors
• C. Types of Cases
• Courts are more likely to pierce the veil in:
• Tort cases rather than contract cases
• Cases involving small, closely held corporations

II. Application to Specific Entities

• A. Corporations
• Factors considered are the same as general principles.
• B. LLCs
• Focus is on unity of interest and ownership and whether upholding limited liability would be unjust or inequitable.

III. Consequences of Piercing the Veil

• A. Shareholder Liability
• Shareholders become personally liable for the corporation's debts and obligations.

Financing the Organization

I. Sources of Finance

• A. Equity Financing
• Issuing equity securities, such as common and preferred stock, to investors.
• Represents ownership in the corporation.
• Shareholders have voting rights and may receive dividends.
• 1. Common Stock
• Basic ownership interest.
• Entitles holders to vote on corporate matters.
• May receive dividends if declared by the board of directors.
• 2. Preferred Stock
• Has preference over common stock with respect to dividends and distributions upon liquidation.
• May have different voting rights than common stock.
• B. Debt Financing
• Borrowing money from creditors.
• Creditors do not have ownership interest.
• Corporation is obligated to repay the principal and interest.
• C. Consideration for Shares
• Shares can be issued for various forms of consideration, including:
• Cash
• Property
• Services performed
• Contracts for future services
• Consideration must be adequate to make the stock fully paid and non-assessable.
• D. Stock Subscriptions
• Agreements to purchase shares in the future.
• Pre-incorporation subscriptions are irrevocable for six months, unless otherwise agreed.
• E. Stock Rights, Options, and Warrants
• Give holders the right to purchase shares in the future at a specified price.
• Can be issued by the board of directors.
• F. Preemptive Rights
• Right of existing shareholders to purchase newly issued shares to maintain their proportional ownership.
• Can be waived in writing.
• G. Securities Registration
• Required for public offerings of securities.
• Corporation must file a registration statement with the Securities and Exchange Commission (SEC).
• Buyers must receive a prospectus.
• H. Distributions
• Typically in the form of cash dividends.
• Authorized by the board of directors.
• Limitations on distributions:
• Corporation cannot distribute if it is insolvent or if the distribution would make it insolvent.
• Directors can be personally liable for unlawful distributions.

Management and Control

I. Board of Directors

• A. Role and Responsibilities
• Manages and directs the corporation's business and affairs.
• Appoints officers.
• Oversees officers.
• Makes high-level corporate decisions.
• B. Composition and Election
• Must have at least one director.
• Directors must be natural persons.
• Elected by shareholders at the annual meeting.
• Term is typically one year.
• C. Meetings
• Regular meetings may be held without notice.
• Special meetings require two days' notice of date, time, and place.
• Can act by unanimous written consent without a meeting.
• D. Voting
• Majority vote of directors present is required for board approval.
• Quorum (majority of directors) must be present for a valid act.
• Pooling agreements (agreements between directors on how to vote) are generally unenforceable.
• Directors cannot vote by proxy.
• E. Committees
• Can be formed to handle specific tasks.
• Exercise powers granted by the board, articles, or bylaws.

II. Officers

• A. Role and Responsibilities
• Responsible for day-to-day management of the corporation.
• Elected by the board of directors.
• Authority:
• Actual authority: defined by bylaws or the board
• Implied authority: to perform tasks necessary to carry out duties
• Apparent authority: if the corporation holds the officer out as having authority
• B. Duties
• Same fiduciary duties as directors.
• CEO and CFO of publicly traded companies are subject to additional duties under Sarbanes-Oxley Act.

III. Shareholders

• A. Rights and Responsibilities
• Elect directors.
• Vote on major decisions that affect fundamental changes.
• Have limited liability for corporate obligations.
• 1. Meetings
• Annual meeting is required to elect directors and conduct other business.
• Special meetings can be called by the board or shareholders owning at least 10% of voting shares.
• Shareholders must receive timely notice of meetings.
• 2. Voting
• Requires a quorum of shares represented at the meeting.
• Majority vote of shares present is generally required for approval.
• 3. Proxy Voting
• Allows shareholders to authorize others to vote their shares.
• Must be in writing, signed, sent to the corporation, and valid for a limited time.
• 4. Shareholder Agreements
• Can restrict share transfers.
• Can allocate authority among shareholders.
• 5. Derivative Suits
• Shareholders can sue on behalf of the corporation to enforce its rights.
• Demand requirement: shareholder must first demand that the board take action, unless it would be futile.
• Litigation expenses may be reimbursed by the corporation.

Fiduciary Duties

I. Duty of Care

• A. Definition
• Directors and officers must act with the care that a person in a like position would reasonably believe appropriate under similar circumstances.
• Must use special skills and knowledge.
• B. Business Judgment Rule
• Protects directors and officers from liability for good-faith business decisions.
• Court will not disturb decisions made in good faith, in the absence of fraud, illegality, or self-dealing.
• Reliance defense: directors and officers can rely on information from reliable sources.
• C. Overcoming the Business Judgment Rule
• To overcome the business judgment rule, a plaintiff must show:
• Fraud
• Illegality
• Self-dealing
• Lack of good faith
• Failure to become informed

II. Duty of Loyalty

• A. Definition
• Directors and officers must act in the best interests of the corporation and avoid conflicts of interest.
• B. Self-Dealing Transactions
• Transactions where a director or officer receives a substantial benefit from the corporation.
• Must be disclosed and ratified by:
• Disinterested directors
• Disinterested shareholders
• A court finding the transaction fair
• C. Corporate Opportunity Doctrine
• Directors and officers cannot usurp or steal corporate opportunities for themselves.
• D. Duties of Controlling Shareholders
• Controlling shareholders may owe fiduciary duties to minority shareholders.
• Must act in good faith and fairness when dealing with the corporation and minority shareholders.

III. Duties in LLCs

• A. Duty of Care
• Managers and members must act with reasonable care and skill.
• Standard of care may vary depending on the state's LLC statute.
• ULLCA: liability only for gross negligence or recklessness.
• Revised ULLCA: ordinary negligence standard, but subject to the business judgment rule.
• B. Duty of Loyalty
• Managers and members must act in the best interests of the LLC and avoid conflicts of interest.
• Similar to the duty of loyalty in corporations.
• C. Business Judgment Rule
• Protects LLC managers from liability for good-faith business decisions.

IV. Remedies for Breach of Fiduciary Duties

• A. Injunction
• B. Damages
• C. Rescission of Transaction
• D. Removal from Office
• E. Disgorgement of Profits

Close Corporations and Special Control Devices

I. Characteristics of Close Corporations

• A. Small Number of Shareholders: Close corporations typically have a limited number of shareholders, often who are family members or close acquaintances.
• B. Shareholders are Often Directors and Officers: The same individuals may serve as both shareholders, directors, and officers, blurring the lines between ownership and management.
• C. Stock is Not Publicly Traded: Shares are not traded on public exchanges, making it difficult to determine fair market value and exit the corporation.
• D. Relaxed Corporate Formalities: Close corporations may operate with less formality compared to publicly held corporations.

II. Special Control Devices

• A. Share Transfer Restrictions: Agreements among shareholders that restrict the transfer of shares to outsiders. These are designed to maintain control within a select group and prevent unwanted third parties from becoming shareholders. They must be reasonable to be enforceable.
• 1. Types of Restrictions:
• a. Right of First Refusal: Requires a shareholder who wants to sell their shares to first offer them to the corporation or other shareholders before selling to an outsider.
• b. Consent Restraint: Requires the consent of the corporation or other shareholders before a shareholder can transfer their shares.
• c. Buy-Sell Agreement: Obligates the corporation or other shareholders to purchase a shareholder's shares upon the occurrence of certain events, such as death, disability, or retirement.
• 2. Validity: To be valid, share transfer restrictions must be:
• a. Adopted Lawfully: Properly included in the articles of incorporation, bylaws, or a shareholder agreement.
• b. Reasonable: Not an undue restraint on alienation.
• c. Conspicuous: Clearly stated on stock certificates to provide notice to potential transferees.
• B. Voting Agreements: Contracts between shareholders that specify how they will vote their shares. These agreements ensure that a particular group of shareholders can maintain control of the corporation.
• 1. Enforceability: Generally enforceable, but courts may scrutinize them to ensure they are not used to oppress minority shareholders.
• C. Shareholder Management Agreements: Agreements that modify the traditional corporate management structure by giving shareholders more direct control over the corporation's business.
• 1. Deviation from Statutory Norms: These agreements can allow for deviations from the default rules of corporate law regarding the roles of directors and officers.
• 2. Validity: Must be properly adopted and not violate mandatory provisions of corporate law.
• D. Preemptive Rights: Rights of existing shareholders to purchase newly issued shares in proportion to their current ownership, preventing dilution of their ownership interests.
• 1. Purpose: Protect existing shareholders from having their ownership and voting power diminished by the issuance of new shares.
• 2. Waiver: Shareholders can waive their preemptive rights in writing.

Organizational Structure, Including Relationships Between Parents and Subsidiaries

I. Parent-Subsidiary Relationships

• A. Definition: A parent corporation is one that owns a controlling interest (usually more than 50% of voting shares) in another corporation, known as a subsidiary. This control allows the parent to elect the subsidiary's board of directors and dictate its policies.
• B. Separate Legal Entities: Parents and subsidiaries are generally treated as separate legal entities, meaning the parent is not typically liable for the debts and obligations of the subsidiary.
• C. Piercing the Corporate Veil: In certain circumstances, courts may "pierce the corporate veil" and hold a parent corporation liable for the debts of its subsidiary. This usually occurs when the parent has exerted excessive control over the subsidiary, commingled assets, or used the subsidiary to commit fraud or injustice.
• 1. Factors Considered:
• a. Undercapitalization: Subsidiary is not provided with enough capital to operate independently.
• b. Disregard of Corporate Formalities: Failure to maintain separate books, records, and bank accounts; or hold separate board meetings.
• c. Commingling of Assets: Parent and subsidiary's assets are mixed together.
• d. Domination and Control: Parent exerts excessive control over the subsidiary's operations, treating it as a mere department rather than a separate entity.
• e. Fraud or Injustice: The subsidiary is used to shield the parent from liability for its own wrongdoing.

II. Mergers and Acquisitions

• A. Mergers: Two or more corporations combine into a single surviving corporation, with one corporation absorbing the other. Requires approval by the board of directors and shareholders of both corporations.
• 1. Dissenter's Rights: Shareholders who vote against a merger may have appraisal rights, allowing them to receive the fair value of their shares in cash.
• 2. Short-Form Merger: A simplified merger process available when a parent corporation owns a very high percentage (often 90% or more) of a subsidiary's stock. In this case, the merger can proceed without the approval of the subsidiary's minority shareholders.
• B. Asset Acquisitions: One corporation acquires all or substantially all of the assets of another corporation. Requires approval by the board of directors and shareholders of the selling corporation.
• C. Stock Acquisitions: One corporation acquires a controlling interest in another corporation by purchasing its stock.

Shareholder and Member Litigation: Direct, Derivative, and Class Litigation

I. Direct Actions

• A. Definition: Shareholder lawsuits brought to enforce the shareholder's own rights, with any recovery going directly to the shareholder.
• B. Examples:
• 1. Breach of Shareholder Agreement: A shareholder sues another shareholder for violating the terms of a shareholder agreement.
• 2. Denial of Voting Rights: A shareholder sues the corporation for improperly denying them their right to vote their shares.
• 3. Failure to Pay Dividends: A shareholder sues the corporation for failing to declare a dividend when the shareholder believes a dividend is warranted.
• C. Standing: To bring a direct action, a shareholder must show that their individual rights have been harmed.

II. Derivative Actions

• A. Definition: Shareholder lawsuits brought on behalf of the corporation to enforce the corporation's rights. The shareholder acts as a representative of the corporation, and any recovery goes to the corporation.
• B. Examples:
• 1. Breach of Fiduciary Duty: A shareholder sues a director or officer for breaching their duty of care or loyalty to the corporation.
• 2. Corporate Waste: A shareholder sues to stop the corporation from engaging in wasteful spending.
• C. Standing: To bring a derivative action, a shareholder must have been a shareholder at the time the alleged wrong occurred and must continue to be a shareholder throughout the litigation.
• D. Demand Requirement: In most jurisdictions, a shareholder must first make a demand on the corporation's board of directors to take action before filing a derivative lawsuit. This demand gives the board the opportunity to address the alleged wrong internally.
• 1. Futility Exception: The demand requirement can be excused if making a demand would be futile, such as when the directors themselves are the alleged wrongdoers.
• E. Recovery: Any recovery in a derivative suit goes to the corporation, not the individual shareholder who brought the lawsuit.
• F. Attorney's Fees: If the derivative suit is successful, the shareholder's attorney may be entitled to have their fees paid by the corporation.

III. Class Actions

• A. Definition: Lawsuits brought by a representative shareholder on behalf of a large group of shareholders who have suffered similar harms.
• B. Rule 23 Requirements: To bring a class action, the shareholder must meet the requirements of Rule 23 of the Federal Rules of Civil Procedure (or a similar state rule). These requirements include:
• 1. Numerosity: The class must be so numerous that joinder of all members is impractical.
• 2. Commonality: There must be questions of law or fact common to the class.
• 3. Typicality: The claims or defenses of the representative shareholder must be typical of the claims or defenses of the class.
• 4. Adequacy of Representation: The representative shareholder must fairly and adequately protect the interests of the class.
• C. Federal Securities Class Actions: Class actions are frequently brought under federal securities laws, such as Rule 10b-5, which prohibits fraud in the purchase or sale of securities.
• 1. Elements of a Rule 10b-5 Claim: To state a claim under Rule 10b-5, a plaintiff must allege:
• a. Material Misstatement or Omission: The defendant made a false or misleading statement, or omitted to disclose material information.
• b. Scienter: The defendant acted with an intent to deceive or with recklessness.
• c. Reliance: The plaintiff relied on the misstatement or omission.
• d. Causation: The misstatement or omission caused the plaintiff's damages.

IV. Shareholder Litigation in LLCs

• A. Direct and Derivative Actions: Members of LLCs can also bring direct and derivative actions to enforce their rights and the rights of the LLC. The principles discussed above regarding direct and derivative actions in corporations generally apply to LLCs as well.
• B. Demand Requirement: The demand requirement for derivative actions may apply to LLCs, but the specific rules vary depending on the state's LLC statute.
• C. Standing: Members bringing derivative actions in LLCs typically must have been members at the time the alleged wrong occurred and must continue to be members throughout the litigation.
• D. Oppression Claims: In close corporations, shareholders may bring claims for "oppression," alleging that the majority shareholders have acted unfairly to freeze them out of the corporation's decision-making or to deny them their rightful share of profits. This concept has been extended to LLCs in some jurisdictions, allowing members to assert oppression claims against controlling members.

Civil Procedure

I. Jurisdiction and Venue

• Subject-Matter Jurisdiction - the court's power over the type of case. A federal court must possess subject-matter jurisdiction over a dispute.
• • Federal Question Jurisdiction
  • • Federal courts have jurisdiction to decide federal questions. This occurs when the plaintiff's well-pleaded complaint states a claim or cause of action that involves federal law.
    • The Well-Pleaded Complaint Rule makes the plaintiff "master of the claim" because they must affirmatively invoke federal subject-matter jurisdiction by pleading a federal-law claim. A case based on state law that could also support a federal claim will not be sufficient.
    • • A federal defense is not sufficient for federal question jurisdiction.
  • Diversity Jurisdiction
  • • Requirements:
    • • Complete diversity of citizenship - no plaintiff can be from the same state as any defendant.
      • • Citizenship is determined at the time of filing.
        • Individuals: citizenship is their domicile.
        • Corporations: citizenship is both their state of incorporation and principal place of business.
        • Unincorporated Entities: citizenship is each member's citizenship.
        • Class Actions: citizenship is based on the representative, not the class members.
      • Amount in controversy exceeding $75,000.
      • • Must be pled in good faith.
        • Plaintiff can aggregate multiple claims to reach this amount.
        • Compulsory counterclaims do not require an independent jurisdictional basis.
        • Permissive counterclaims must have an independent basis, including amount in controversy.
    • Forum-Defendant Rule: If any defendant is a citizen of the forum state, the case cannot be removed to federal court.
  • Supplemental Jurisdiction
  • • Allows a federal court to hear additional claims (state or federal) related to the original claim that gave the court jurisdiction.
    • Claims must arise from a "common nucleus of operative fact".
    • Limitations in Diversity Cases:
    • • No supplemental jurisdiction over claims by plaintiffs against parties joined under Rules 14 (impleader), 19 (compulsory joinder), 20 (permissive joinder), or 24 (intervention).
      • No supplemental jurisdiction over claims by plaintiffs proposed to be joined under Rule 19, or seeking to intervene under Rule 24, if doing so would destroy diversity.
• Personal Jurisdiction - the court's power over the defendant. Must be established for each defendant.
• • Bases:
  • • Residency: defendant resides in the state.
    • Consent: defendant agrees to be sued in the forum.
    • Service: defendant is served with process within the forum state (transient jurisdiction).
    • Minimum Contacts: defendant has sufficient connections with the forum state.
    • • General Jurisdiction: defendant's contacts are so continuous and systematic that they are essentially "at home" in the state.
      • Specific Jurisdiction: defendant's claim arises from their specific contacts with the forum state. Contacts must be "purposefully undertaken" and foreseeable that they could be sued there.
      • • Stream of Commerce: placing a product into the stream of commerce can create minimum contacts, but there is a split among courts on the exact test.
  • Long-Arm Statute - a state law that authorizes courts to exercise jurisdiction over non-resident defendants.
  • • Federal courts apply the long-arm statute of the state where they are located.
  • Constitutional Due Process - jurisdiction must also satisfy the Due Process Clause of the Fourteenth Amendment. This requires that the defendant have minimum contacts with the forum state such that it is fair to require them to defend a lawsuit there.
  • Traditional Limitations:
  • • Forum Selection Clause: a clause in a contract specifying where disputes will be litigated can be a significant factor in jurisdiction.
• Territorial Jurisdiction - the geographical reach of a court's power. Federal courts:
• • Have territorial jurisdiction over the state in which they are located.
  • May have nationwide jurisdiction granted by a federal statute.
  • 100-mile bulge rule: jurisdiction over parties joined under Rules 14 or 19 served within 100 miles of the court, even if outside the state.
• Notice and Service of Process:
• • Due process requires that a defendant receive adequate notice of the lawsuit and an opportunity to be heard.
  • Notice must be reasonably calculated to inform the defendant. Personal service is always sufficient.
  • Proper service of process is essential for the court to obtain jurisdiction over the defendant.
• Venue - the proper geographic district for a case to be heard.
• • Federal venue is proper in the district where:
  • • Any defendant resides, if all defendants reside in the same state.
    • A substantial part of the events or omissions giving rise to the claim occurred.
    • A substantial part of the property subject to the action is located.
    • If none of the above apply, where any defendant is subject to personal jurisdiction (fallback provision).
  • Venue can be waived if not objected to in the defendant's answer or pre-answer motion.
  • Transfer of Venue: A court may transfer a case to another venue for convenience or fairness.
  • Forum Non Conveniens: A court may dismiss a case, even if it has jurisdiction, if another forum is significantly more convenient and just.

II. Law Applied By Federal Courts

• Erie Doctrine - in diversity cases, federal courts apply state substantive law and federal procedural law.
• • Substance vs. Procedure: This distinction can be complex, but generally, federal courts apply:
  • • State law for:
    • • Statutes of limitations.
      • Choice-of-law rules.
    • Federal law for:
    • • Right to a jury trial (7th Amendment).
  • Rules Enabling Act: Federal Rules of Civil Procedure are considered procedural and apply in federal courts, even in diversity cases.
  • Supreme Court Cases:
  • • Hanna v. Plumer - federal rules apply if valid under Rules Enabling Act.
    • Shady Grove Orthopedic Assocs. v. Allstate Ins. - federal class action rules apply in diversity cases.
• Federal Common Law - law created by federal courts.
• • Exists to interpret Congressional intent or gaps in federal laws.
  • Examples: maritime law, foreign relations, suits involving the federal government.
  • State courts must apply federal common law when deciding issues of federal law.
  • There is NO federal common law of state law matters.

III. Pretrial Procedures

• Pleadings - formal documents that set forth the parties' claims and defenses.
• • Types:
  • • Complaint: filed by the plaintiff to initiate the lawsuit. Must include:
    • • Grounds for subject-matter jurisdiction.
      • Statement of facts supporting the claim.
      • Demand for judgment and relief sought.
    • Answer: filed by the defendant in response to the complaint. Must admit or deny the allegations and raise any affirmative defenses.
    • • Time to serve: generally 21 days.
    • Counterclaim: claim by the defendant against the plaintiff.
    • Cross-claim: claim by one defendant against another defendant.
    • Reply: filed by the plaintiff in response to a counterclaim.
    • Amendments: a party can amend their pleading once as a matter of right within 21 days. Further amendments require permission from the court or consent from the other party.
    • Relation Back Doctrine: an amendment can relate back to the original filing date if it arises out of the same transaction or occurrence.
• Rule 11: requires attorneys to certify that pleadings are filed for a proper purpose, have legal and evidentiary support. Sanctions may be imposed for violations.
• Provisional Relief - temporary remedies available before trial.
• • Preliminary Injunction - prevents a party from taking action that would cause irreparable harm during the lawsuit.
  • • Requirements:
    • • Plaintiff likely to succeed on the merits.
      • Irreparable harm likely to occur without the injunction.
      • Balance of hardships favors the plaintiff.
      • Injunction is in the public interest.
  • Temporary Restraining Order (TRO) - similar to a preliminary injunction, but issued on an emergency basis without a full hearing.
  • • Can be issued ex parte (without notice to the other side) in limited circumstances.
    • Effective for a short period of time (usually no more than 14 days).
  • Permanent Injunction - issued after trial if the plaintiff proves they are entitled to permanent relief.
  • Declaratory Judgment - court declares the rights and obligations of the parties without ordering specific action.
• Joinder - rules governing the addition of claims and parties to a lawsuit.
• • Joinder of Claims:
  • • Plaintiff can join any claims against a defendant.
    • Defendant can assert counterclaims against the plaintiff.
    • Compulsory Counterclaim: arises from the same transaction or occurrence and must be brought in the same lawsuit. Failure to bring it will result in preclusion.
    • Permissive Counterclaim: does not arise from the same transaction or occurrence and can be brought in a separate lawsuit.
    • Cross-claim: claim by one defendant against another defendant arising from the same transaction or occurrence.
  • Joinder of Parties:
  • • Permissive Joinder: multiple plaintiffs or defendants can join if their claims arise from the same transaction or occurrence and raise a common question of law or fact.
    • Compulsory Joinder: a party must be joined if:
    • • Complete relief cannot be granted without them.
      • Their absence would impair their ability to protect their interests.
      • Their absence would expose existing parties to a risk of inconsistent obligations.
    • Intervention: a non-party can join the lawsuit if their interests are affected by it.
    • • Intervention as a Right: allowed if a statute grants the right or if their interest is so significantly affected that they would be prejudiced if not allowed to intervene.
      • Permissive Intervention: allowed if a statute grants the right or if their claim shares a common question of law or fact with the existing claims.
  • Impleader (Third-Party Practice): a defendant can bring a third party into the lawsuit who may be liable for all or part of the claim.
  • Interpleader: allows a party holding property or funds to bring all potential claimants into a single lawsuit to determine ownership.
  • Class Actions: allows a representative to sue on behalf of a large group of people with similar claims.
  • • Requirements:
    • • Numerosity: class is too large to be joined individually.
      • Commonality: common questions of law or fact exist among class members.
      • Typicality: representative's claims are typical of the class members.
      • Adequacy of Representation: representative will fairly and adequately represent the class.
    • Notice: must be given to all class members.
    • Types:
    • • Prejudice: class action is necessary to avoid prejudice to the class members or the opposing party.
      • Injunctive Relief: appropriate when the defendant has acted or refused to act on grounds that apply generally to the class.
      • Damages: common questions of law or fact predominate over individual questions.
• Pretrial Conferences and Orders:
• • Rule 26(f) Conference: parties must meet to discuss discovery, disclosures, and settlement.
  • Scheduling Order: court sets deadlines for various pretrial activities.
  • Pretrial Conferences: court may hold conferences to manage the case and facilitate settlement.
  • Final Pretrial Conference: held close to trial to finalize trial issues and encourage settlement.
  • Pretrial Order: issued after the final pretrial conference to control the course of the trial.
• Discovery - process of obtaining information from the other party.
• • Scope: discoverable information is broadly defined as anything relevant to a party's claim or defense, proportional to the needs of the case, and not privileged. Relevant information need not be admissible at trial.
  • • Relevance: information is relevant if it is likely to make any fact at issue more or less probable.
  • Methods:
  • • Interrogatories: written questions answered under oath.
    • Requests for Production: requests for documents or other tangible things.
    • Depositions: oral or written examinations under oath.
    • Requests for Admission: requests for the other party to admit or deny facts.
    • Physical or Mental Examinations: available only if a party's physical or mental condition is in controversy. Requires a court order and good cause.
  • Required Disclosures:
  • • Initial Disclosures: basic information about the case, including witnesses and documents supporting claims and defenses.
    • Expert Testimony: parties must disclose their expert witnesses and their reports.
    • Pretrial Disclosures: information about evidence and witnesses to be used at trial.
  • Limitations:
  • • Privilege: certain information is protected from discovery, such as attorney-client communications and work product.
    • Work Product Doctrine: protects materials prepared in anticipation of litigation by a party or their representative.
    • • Exception: discoverable if the other party shows substantial need and undue hardship in obtaining the information elsewhere.
      • Mental impressions and legal theories of attorneys are absolutely protected.
    • Expert Witness Protections: draft reports and communications between attorneys and expert witnesses are generally protected, except for:
    • • Information relating to compensation.
      • Facts, data, and assumptions relied upon by the expert.
    • Protective Orders: court can limit discovery to prevent harassment, annoyance, or undue expense.
  • Duty to Preserve Evidence: parties have a duty to preserve relevant evidence. Failure to do so can result in sanctions.
  • Sanctions: available for discovery violations.
• Adjudication without Trial
• • Voluntary Dismissal: plaintiff can dismiss their claim without prejudice before the defendant answers or files a motion for summary judgment. After that, they need court permission.
  • Default Judgment: entered against a defendant who fails to respond to the complaint.
  • Settlement: parties can agree to resolve their dispute out of court.
  • Summary Judgment: granted when there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law.
  • Judgment as a Matter of Law (JMOL) (formerly directed verdict): granted if a party has not presented sufficient evidence to support their claim.
  • • Can be made before or after the case goes to the jury.
  • Renewed Motion for JMOL: can be made after the jury verdict if the initial JMOL was denied.
  • Motion for a New Trial: granted if there are serious errors in the trial that affected the outcome, such as juror misconduct or newly discovered evidence.
  • Rule 60 Motion: allows relief from a judgment for various reasons, such as mistake, fraud, or newly discovered evidence.
• Trial:
• • Right to a Jury Trial: guaranteed by the 7th Amendment for legal claims. Equitable claims are not subject to a jury trial.
  • • Demand: must be made within 14 days of the last pleading addressing the issue.
    • Waiver: failure to demand a jury trial results in waiver.
  • Jury Selection (Voir Dire): process of questioning potential jurors to determine their suitability.
  • • Challenges:
    • • For Cause: unlimited challenges to jurors who are biased or unqualified.
      • Peremptory: limited number of challenges that can be used for any reason except race or gender.
  • Jury Instructions: judge instructs the jury on the applicable law. Parties can submit proposed instructions and object to the judge's instructions.
• Verdicts and Judgments:
• • Types of Verdicts:
  • • General: jury finds for the plaintiff or defendant without specific findings of fact.
    • Special: jury answers specific questions of fact, and the judge applies the law to reach a verdict.
  • Judgment: formal decision of the court that resolves the case.
• Post-Trial Motions: see Adjudication without Trial above.
• Appealability and Review:
• • Final Judgment Rule: generally, only final judgments can be appealed.
  • Exceptions: some interlocutory orders, such as those granting injunctions, can be immediately appealed.
  • Standards of Review:
  • • De Novo: for questions of law, the appellate court gives no deference to the lower court's ruling.
    • Abuse of Discretion: for discretionary rulings, the appellate court will only overturn if the lower court made a clear error.
    • Clearly Erroneous: for findings of fact, the appellate court will only overturn if the finding is clearly against the weight of the evidence.
• Preclusion (Res Judicata and Collateral Estoppel):
• • Claim Preclusion (Res Judicata): prevents a party from relitigating the same claim that was decided in a prior lawsuit.
  • • Requirements:
    • • Same claim (transaction or occurrence) was involved in both lawsuits.
      • Same parties were involved in both lawsuits.
      • Prior judgment was final and valid and on the merits.
  • Issue Preclusion (Collateral Estoppel): prevents a party from relitigating a specific issue that was actually litigated and decided in a prior lawsuit.
  • • Requirements:
    • • Issue was actually litigated and decided in the prior lawsuit.
      • Issue was essential to the judgment in the prior lawsuit.
      • Party against whom preclusion is asserted had a full and fair opportunity to litigate the issue.

IV. Jury Trials

• Right to a Jury Trial
• • The Seventh Amendment guarantees the right to a jury trial in civil cases in federal court.
  • This right applies to actions at law, where the remedy sought is money damages.
  • There is no right to a jury trial in equitable claims, such as claims for injunctions or specific performance.
• Demand for a Jury Trial
• • A party who is entitled to a jury trial must file a written demand with the court and serve it on the other parties.
  • This demand must be made within 14 days after the last pleading directed to the issue for which a jury trial is sought is served.
  • Failure to file a demand within the time limit constitutes a waiver of the right to a jury trial.
• Jury Selection
• • Voir dire is the process of questioning potential jurors to determine their qualifications and impartiality.
  • Challenges for Cause: These are used to remove potential jurors who are biased or otherwise unqualified. There is no limit on the number of challenges for cause.
  • • General Disqualification: A person may be disqualified from jury service because of a felony conviction or other reason.
    • Implied Bias: Removal of a juror when the attorney believes a bias may exist (e.g., a relationship with one of the parties or attorneys).
    • Actual Bias: Jurors are removed when they indicate that they will decide the case based on predetermined beliefs rather than on the facts of the case.
  • Peremptory Challenges: These allow parties to strike potential jurors without having to give a reason, although they cannot be used to discriminate on the basis of race or gender. Each party typically has three peremptory challenges in civil cases.
• Jury Instructions
• • The judge instructs the jury on the law that applies to the case.
  • Parties may submit proposed jury instructions.
  • Objections to jury instructions must be made on the record before the jury retires to deliberate or they are waived.
• Jury Verdicts
• • Unless the parties agree otherwise, jury verdicts in federal court must be unanimous and returned by at least 6 jurors.
  • Types of Verdicts:
  • • General Verdict: The jury simply states who wins and the amount of damages, if any.
    • Special Verdict: The jury answers specific questions about the facts of the case, and the judge applies the law to those findings.
    • General Verdict with Answers to Interrogatories: Combines a general verdict with answers to specific questions.
    • • If the answers are consistent with the general verdict, the court enters judgment accordingly.
      • If the answers are inconsistent with each other or with the general verdict, the court may ask the jury to reconsider, order a new trial, or enter judgment based on the answers.
• Jury Deliberations
• • Jury deliberations are private and involve only the jurors.
  • Jurors may communicate with the judge in writing if they have questions.

V. Motions

• General Rules
• • A motion is a request for a court order.
  • Motions must be in writing, state the grounds for the request, and request specific relief.
  • Local rules and court orders may govern the timing and procedure for filing motions.
• Pre-Trial Motions
• • Motion to Dismiss (Rule 12(b))
  • • Used to dismiss a case for various reasons, including:
    • • Lack of Subject-Matter Jurisdiction: Can be raised at any time.
      • Lack of Personal Jurisdiction: Must be raised in a pre-answer motion or answer.
      • Improper Venue: Must be raised in a pre-answer motion or answer.
      • Insufficient Process or Service of Process: Must be raised in a pre-answer motion or answer.
      • Failure to State a Claim Upon Which Relief Can Be Granted: Can be raised in any pleading or at trial. This motion tests the plausibility of the claim, meaning that the complaint must allege enough facts to support a reasonable inference that the defendant is liable for the alleged misconduct.
      • Failure to Join a Necessary or Indispensable Party: Can be raised in any pleading or at trial.
    • Waiver: Defenses based on lack of personal jurisdiction, improper venue, insufficient process, or insufficient service of process are waived if not raised in a pre-answer motion or the answer.
  • Motions Addressed to the Face of Pleadings
  • • Motion for a More Definite Statement: Asks the court to order the other party to clarify a vague or ambiguous pleading.
    • Motion to Strike: Asks the court to remove irrelevant, redundant, or scandalous material from a pleading.
    • Motion for Judgment on the Pleadings: Asks the court to enter judgment based on the pleadings alone, without a trial.
  • Motion for Summary Judgment (Rule 56)
  • • Asks the court to enter judgment because there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law.
    • The court must view the evidence in the light most favorable to the non-moving party.
    • Procedure:
    • • The moving party must support its motion with evidence.
      • The non-moving party must respond with evidence showing that there is a genuine dispute of material fact.
      • The court may consider materials in the record not cited by the parties, except for electronically stored information.
• Motions During and After Trial
• • Motion for Judgment as a Matter of Law (JMOL) (Rule 50)
  • • Formerly known as a directed verdict.
    • Asks the court to enter judgment because no reasonable jury could find for the non-moving party.
    • Timing:
    • • Can be made at any time before the case is submitted to the jury.
      • To preserve the right to file a renewed JMOL motion after the verdict, a party must have moved for JMOL before the case went to the jury.
  • Renewed Motion for Judgment as a Matter of Law (Rule 50)
  • • Formerly known as a judgment notwithstanding the verdict (JNOV).
    • Essentially the same as a JMOL, but made after the jury has returned a verdict.
    • Must be filed within 28 days after the entry of judgment.
  • Motion for a New Trial (Rule 59)
  • • Asks the court to order a new trial because of an error in the first trial, such as:
    • • Prejudicial error: This standard requires the party seeking a new trial to show that an error occurred and that the error was prejudicial, meaning that it affected the outcome of the trial.
      • Jury's verdict is against the weight of the evidence
      • Juror misconduct
    • Timing: Must be filed within 28 days after the entry of judgment.
  • Rule 60 Motion
  • • Used to relieve a party from a final judgment for various reasons, including:
    • • Mistake, inadvertence, surprise, or excusable neglect
      • Newly discovered evidence
      • Fraud, misrepresentation, or other misconduct
      • Judgment is void (e.g., for lack of jurisdiction)
      • Judgment has been satisfied, released, or discharged
      • Any other reason justifying relief (catch-all provision)
    • Timing: Generally, must be filed within a reasonable time, and no later than one year after the judgment for reasons 1-3.

VI. Verdicts and Judgments

• Default Judgments
• • Entered when a defendant fails to appear or defend a lawsuit.
  • The plaintiff must file a motion for default judgment.
  • The court may hold a hearing to determine the amount of damages, and the defaulting party must receive notice of the hearing.
  • A default judgment can be set aside for good cause, such as a meritorious defense.
  • A final default judgment may be set aside by a Rule 60 motion.
• Involuntary Dismissal
• • The court may dismiss a case on its own motion or on the motion of a party.
  • Grounds for involuntary dismissal include:
  • • Failure to prosecute
    • Failure to comply with court orders or rules
• Unless the dismissal order states otherwise, it operates as an adjudication on the merits.
• Judicial Findings and Conclusions
• • In a bench trial (a trial without a jury), the judge must make findings of fact and conclusions of law on the record.
  • These findings and conclusions must be stated in a separate document or on the record.
• Claim and Issue Preclusion
• • Claim Preclusion (Res Judicata): Prevents a party from relitigating a claim that was or could have been raised in a prior action.
  • • Elements:
    • • Valid, final judgment on the merits in the prior action
      • Same parties or parties in privity in both actions
      • Same claim or cause of action in both actions
  • Issue Preclusion (Collateral Estoppel): Prevents a party from relitigating an issue that was actually litigated and decided in a prior action, even if the second action involves a different claim.
  • • Elements:
    • • Valid, final judgment on the merits in the prior action
      • Same issue was actually litigated and decided in the prior action
      • Issue was essential to the judgment in the prior action
      • Party against whom issue preclusion is asserted had a full and fair opportunity to litigate the issue in the prior action

VII. Appealability and Review

• Final Judgment Rule
• • Generally, only final judgments are appealable.
  • A final judgment is one that disposes of all claims and parties in the case.
• Exceptions to Final Judgment Rule
• • Interlocutory Appeals
  • • An interlocutory order is an order that is not a final judgment.
    • Certain interlocutory orders are immediately appealable, including:
    • • Orders granting, denying, continuing, modifying, dissolving, or refusing to dissolve injunctions
      • Orders appointing receivers
      • Orders determining the rights and liabilities of parties in admiralty cases
      • Orders granting or denying class certification
    • Interlocutory Appeals Act (28 U.S.C. § 1292(b)): Allows for discretionary interlocutory appeals of orders involving controlling questions of law when an immediate appeal would materially advance the ultimate termination of the litigation.
    • Collateral Order Doctrine: Allows for immediate appeal of orders that:
    • • Are collateral to the merits of the case
      • Conclusive resolve a particular issue
      • Effectively unreviewable on appeal from a final judgment
  • Partial Final Judgments (Rule 54(b))
  • • When an action involves multiple claims or parties, and the court has entered a final judgment as to fewer than all claims or parties, the court may certify that there is no just reason to delay an appeal.
• Standards of Review
• • Appellate courts review lower court decisions using different standards of review, depending on the type of decision being appealed.
  • Questions of law are reviewed de novo. This means the appellate court reviews the issue as if it were deciding it for the first time, giving no deference to the lower court's ruling.
  • Questions of fact are reviewed under the clearly erroneous standard for bench trials and the substantial evidence standard for jury trials. This means the appellate court will only overturn the factual findings if they are clearly wrong or not supported by substantial evidence.
  • Discretionary rulings are reviewed under the abuse of discretion standard. This is a highly deferential standard that gives trial court judges wide latitude in making decisions.
• Harmless Error Rule
• • An appellate court may affirm a judgment even if there was error below, if the error was harmless and did not affect the outcome of the case.
• Preservation of Error
• • To preserve an issue for appeal, a party must generally object to the error at the trial level.
  • The objection must be timely and specific.
  • Failure to properly object waives the issue on appeal.
  • Exception: Plain Error An appellate court may review a plain error that affects substantial rights, even if it was not properly preserved below. This is a narrow exception that is rarely applied.

Additional Considerations for the UBE:

• Erie Doctrine: In diversity cases, federal courts must apply state substantive law (including statutes and common law) and federal procedural law.
• Preclusion in Diversity Cases: The preclusive effect of a federal judgment in a diversity case is determined by federal law, which generally looks to the preclusion law of the state where the federal court sat.
• Removal: A defendant may be able to remove a case from state court to federal court if the federal court has subject-matter jurisdiction.
• Notice Pleading: Under the Federal Rules of Civil Procedure, a complaint must contain a short and plain statement of the claim showing that the pleader is entitled to relief. This is known as notice pleading and requires only enough information to give the defendant fair notice of the claim.
• Discovery: Parties may obtain information from each other through various discovery devices, including interrogatories, depositions, requests for production, and requests for admission. Discovery is broad in scope but is subject to certain limitations, such as privilege and work-product protection.
• Class Actions: A class action allows a representative plaintiff to sue on behalf of a large group of people who have similar claims. To proceed as a class action, the lawsuit must meet certain requirements, including numerosity, commonality, typicality, and adequacy of representation.

Conflicts of Law Outline

I. CHOICE OF LAW

• A. INTRODUCTION
• 1. Choice of Law issues arise when the laws of more than one jurisdiction arguably apply to a dispute.
• 2. Terminology
• Forum: The state in which the lawsuit is filed.
• Forum Law: The law of the state where the lawsuit is filed.
• Foreign Law: The law of a jurisdiction other than the forum state.
• 3. Choice of Law in Federal Court: In a federal case, apply the choice of law rules of the state where the court sits.
• This is known as the Klaxon Rule.
• Exception: If the case was transferred from a federal court in another state, apply the choice of law rules of the original court.
• B. GENERAL APPROACHES TO CHOICE OF LAW
• 1. Traditional Approach (First Restatement)
• Focus: Where the legally significant event that created the right occurred.
• Process:
• Identify the legally significant event.
• Determine where that event occurred.
• Apply the law of that place.
• Example: A car accident occurs in State A. A lawsuit is filed in State B. The traditional approach would apply the law of State A because that is where the accident occurred.
• 2. Governmental Interest Analysis
• Focus: Which state has the greatest interest in applying its law to the dispute.
• Process:
• Identify the policies behind the competing state laws.
• Determine which states have a legitimate interest in applying their laws.
• If only one state has an interest, apply that state's law. This is a "false conflict."
• If more than one state has an interest, this is a "true conflict." The court will usually apply the law of the forum state.
• If no state has an interest, apply the law of the forum state.
• Types of Laws:
• Conduct-Regulating Laws: Laws designed to regulate conduct.
• Loss-Shifting Laws: Laws that determine who can or cannot be liable.
• 3. Most Significant Relationship Test (Second Restatement)
• Focus: Which state has the most significant relationship to the issue.
• Process:
• Consider seven guiding principles to determine the state with the most significant relationship.
• Consider the connecting factors related to the specific legal issue.
• Apply the law of the state with the most significant relationship.
• Guiding Principles:
• Promoting the relevant policies of the forum and other interested states.
• Protecting justified expectations.
• Advancing certainty, uniformity, predictability, and simplicity.
• Tie Breaker: If no state has a more significant relationship, courts apply forum law.
• C. SPECIAL ISSUES
• 1. Depecage: The application of different states' laws to different issues in the same case.
• 2. Renvoi: When the court applies the whole law of another state, including that state's choice of law rules.
• Accepting the Renvoi: Applying the other state's choice of law rules.
• Rejecting the Renvoi: Ignoring the other state's choice of law rules and applying the other state's substantive law directly.
• Generally Rejected: Except for issues involving property rights in land, courts generally reject renvoi.
• D. DEFENSES AGAINST APPLICATION OF FOREIGN LAW
• 1. Procedural vs. Substantive: Forum law always governs procedural issues.
• Substantive Laws: Regulate behavior outside of court.
• Procedural Laws: Regulate behavior inside court.
• 2. Public Policy Exception: Courts may refuse to apply foreign law that violates the forum's strong public policy.
• Narrow Defense: Applies only to egregious violations.
• Not Applicable to Defenses: Can only be used to reject a foreign cause of action, not a foreign defense.
• 3. Penal Law Exception: Courts will not enforce the penal laws of another state.
• Penal Laws: Laws that punish an offense against the public.
• Tax Laws: Not considered penal laws.
• E. CONSTITUTIONAL LIMITATIONS
• 1. Due Process: Choice of law must not be arbitrary or fundamentally unfair.
• Requirement: The state must have significant contacts with the dispute to apply its law.
• 2. Full Faith and Credit: A state must recognize and enforce the judgments of other states.
• Limitations:
• Must be a final judgment.
• Must be on the merits.
• Rendering court must have had proper jurisdiction.
• No Public Policy Exception: States cannot refuse to enforce other states' judgments based on public policy.
• Last in Time Rule: If there are conflicting judgments, the most recent judgment prevails.
• 3. Privileges and Immunities Clause: Prevents states from discriminating against citizens of other states.

II. SPECIFIC AREAS OF LAW

• A. TORTS
• 1. Traditional Approach: Apply the law of the place where the injury occurred.
• 2. Governmental Interest Analysis: Apply the law of the state with the most significant interest in the outcome.
• 3. Second Restatement: Apply the law of the state with the most significant relationship to the occurrence and the parties.
• Consider these contacts:
• Place of injury.
• Place where the conduct causing injury occurred.
• Domicile, residence, or place of business of the parties.
• Place where the relationship between the parties is centered.
• Presumption: The law of the place of injury will usually be applied, but can be overcome.
• Multiple States: If the injury occurs in multiple states, apply the law of the plaintiff's domicile if the injury also occurred there.
• B. CONTRACTS
• 1. Choice of Law Clause: If the contract contains a valid and enforceable choice of law clause, that clause will govern.
• Exception: Validity of a contract cannot be resolved solely by the choice of law provision.
• 2. Validity of a Contract:
• Second Restatement: Parties can choose the law governing validity if:
• The chosen state has a substantial relationship to the parties or the transaction; or
• There is some other reasonable basis for the choice.
• Public Policy Exception: Courts may ignore the choice of law provision if it would violate a fundamental policy of the state with the most significant relationship to the issue.
• 3. Traditional Approach: The law of the place of contracting governs issues of contract formation, interpretation, and validity.
• Place of Contracting: Where the last act necessary to make the contract binding occurred.
• Performance Issues: Governed by the law of the place of performance.
• 4. Second Restatement: Determine the state with the most significant relationship to the contract.
• Consider these contacts:
• Place of contracting, negotiation, and performance.
• Location of the subject matter of the contract.
• Domicile, residence, place of incorporation, or place of business of the parties.
• Presumption: If the location of negotiation and performance are the same, the law of that state applies.
• C. PROPERTY
• 1. Types of Property
• Real Property (Immovables): Land and interests in land.
• Personal Property (Movables): All property other than land.
• Tangible: Property that can be touched (e.g., cars, furniture).
• Intangible: Property that cannot be touched (e.g., stocks, patents).
• 2. Real Property: All three approaches generally apply the law of the situs (where the property is located).
• Second Restatement: Still considers seven guiding principles, with a strong presumption in favor of the law of the situs.
• Land Incidental to a Contract: If the land is merely incidental to the contract, apply the contracts approach.
• 3. Personal Property:
• Tangible Property:
• UCC: Apply the UCC, which allows parties to choose the applicable law.
• No UCC: First and Second Restatement apply the law of the situs at the time of the transaction.
• Intangible Property:
• First Restatement: Law of the state where the property was created.
• Second Restatement: Considers the seven guiding factors.
• 4. Succession of Property at Death:
• Immovable Property: Law of the situs.
• Movable Property: Law of the decedent's domicile at the time of death.
• Choice of Law Clause: Many states will enforce a choice of law clause in a will or trust.
• Validity: If a will or trust is valid under the law where it was made, courts generally enforce it.
• D. CORPORATIONS
• 1. Internal Affairs: Governed by the law of the state of incorporation.
• 2. External Relations: Governed by the choice of law rules of the area of law involved.
• Second Restatement Contacts: Place of incorporation and principal place of business.
• E. FAMILY LAW
• 1. Marriage
• Traditional Approach: Valid where celebrated, unless it violates a strong public policy of the domicile of either party.
• First Restatement: Distinguishes between validity and incidents of marriage.
• Validity: Governed by the law of the place of celebration.
• Incidents: Determined by the law of the place where they are sought to be exercised.
• Second Restatement: Valid where celebrated, unless it violates the public policy of the state with the most significant relationship to the parties at the time of marriage.
• 2. Marital Property
• Immovable Property: Law of the situs.
• Movable Property: Law of the state where the couple was domiciled at the time of acquisition.
• 3. Divorce
• Jurisdiction Requirement: At least one spouse must be domiciled in the state granting the divorce.
• Bilateral Divorce: Personal jurisdiction over both spouses.
• Entitled to full faith and credit.
• Ex Parte Divorce: Personal jurisdiction over only one spouse.
• Entitled to full faith and credit for the divorce decree itself.
• Other orders (property, alimony, etc.) are valid only if the court had personal jurisdiction over both spouses.
• Estoppel: An interested party may challenge the validity of a divorce, except for parties, privies, those remarrying in reliance, or strangers with no standing.
• 4. Child Custody and Support
• UCCJEA: Governs jurisdiction and enforcement of child custody and support orders.
• Exclusive Jurisdiction: One state has exclusive jurisdiction to make initial custody decisions.
• Modification: Only possible if the original state no longer has jurisdiction or the new state meets the requirements for exclusive jurisdiction.
• 5. Foreign Country Judgments
• Not Subject to Full Faith and Credit: Enforced under comity.
• Comity: Recognition based on mutual respect among nations.
• Uniform Foreign Money Judgment Recognition Act:
• Enforces foreign money judgments in the same way as sister state judgments.
• Does not cover non-money judgments, but they may be enforced under comity.

III. IMPORTANT CONCEPTS TO KNOW FOR THE UBE

• Domicile
• Definition: The place where a person has their true, fixed, and permanent home, and to which they intend to return whenever absent.
• Importance: Determines which state's laws apply to certain issues, such as divorce and probate.
• Types:
• Domicile by Choice: Acquired by physical presence in a state and the intent to remain indefinitely.
• Proof of Intent: Owning real estate, voting, paying taxes, banking, vehicle registration.
• Domicile by Operation of Law: Applies to those lacking legal capacity (minors, incompetents).
• Minors: Domicile of custodial parent(s).
• Incompetents: Retain domicile from before incompetency.
• Corporations: Domiciled in the state of incorporation.
• Continuity: Presumed to continue until a new one is acquired.
• Change: Requires physical presence in a new place and intent to make it home.
• Substance vs. Procedure
• General Rule: Forum law governs procedural rules, foreign law governs substantive rules.
• Statute of Limitations: Generally procedural.
• Exception: If part of the right, not just the remedy, it's substantive.
• Rules of Evidence: Generally procedural.
• Exception: If outcome determinative, it's substantive.
• Burden of Proof: Generally procedural.
• Presumptions:
• Rebuttable: Procedural.
• Conclusive: Substantive.
• Parol Evidence Rule: Substantive.
• Statute of Frauds: Substantive.
• Damages:
• First Restatement: Procedural.
• Second Restatement: Governed by the law of the state with the most significant relationship.
• Full Faith and Credit
• Definition: Constitutional requirement that states must enforce the final judgments of other states.
• Requirements for Enforcement:
• Final judgment.
• On the merits.
• Rendering court had proper jurisdiction.
• Defenses:
• Lack of jurisdiction in rendering court.
• Judgment procured by fraud.
• Judgment not final.
• Judgment not on the merits.
• Comity
• Definition: The principle of recognizing and enforcing the laws and judicial decisions of other countries, based on mutual respect.

Application: Used to enforce judgments from foreign countries that are not subject to the Full Faith and Credit Clause.

Constitutional Law Outline

I. Organization of the Courts in the Federal System

A. The United States Supreme Court

1. Jurisdiction
• Article III, Section 2 grants the Supreme Court original jurisdiction in cases:
• Affecting ambassadors, other public ministers, and consuls.
• In which a state is a party.
• Congress cannot expand or restrict the Supreme Court’s original jurisdiction.
• Article III, Section 2 grants the Supreme Court appellate jurisdiction in all other cases mentioned in Article III. Congress can make exceptions and regulations to this appellate jurisdiction.
• The Supreme Court's power extends to:
• Determining the constitutionality of acts of the executive and legislative branches.
• Determining the constitutionality of state statutes.
• Reviewing state court decisions to ensure they comply with the U.S. Constitution and federal statutes.
• Deciding other state law questions.
• Federal law establishes two methods to invoke Supreme Court appellate jurisdiction:
• Appeal (mandatory jurisdiction)
• Certiorari (discretionary jurisdiction)
• The Supreme Court generally only hears cases by writ of certiorari.
• The Supreme Court may exercise discretion in selecting cases presented by writ of certiorari, granting it only if four justices vote to accept the appeal.
• The Supreme Court has mandatory jurisdiction in:
• Direct appeals from decisions of three-judge panels in federal district courts.
• Cases specified by federal law.
• Cases certified by federal circuit courts of appeal.
2. Judicial Review in Operation
• Article III, Section 2 limits federal court jurisdiction to "cases" and "controversies," meaning an actual dispute between litigants.
• This limitation prohibits federal courts from issuing advisory opinions, or opinions on hypothetical facts and abstract issues.
• The "case or controversy" requirement includes the doctrines of standing, ripeness, and mootness, which can be raised by the court or parties at any time.
• Standing:
• A plaintiff must show a "personal stake" in the case.
• A plaintiff must establish:
• Injury in fact: A concrete and particularized injury. This injury need not be physical or economic, but if the injury is in the future it must be actual and imminent.
• Causation: The injury was caused by the defendant's violation of a constitutional or federal right.
• Redressability: The plaintiff would benefit from the remedy sought in the litigation.
• Third-party standing:
• A party may have standing to enforce the rights of a third party if:
• There is a special relationship between the claimant and the third party.
• The third party is unable or unlikely to assert their own rights.
• Organizational standing:
• An organization has standing if:
• A member has standing.
• The member's injury is related to the purpose of the organization.
• Individual members are not required to participate in the lawsuit.
• Ripeness:
• Requires that a party has experienced actual harm or an imminent threat of harm.
• A claim based on contingent future events that may not occur is not ripe for adjudication.
• Mootness:
• A live controversy must exist at all stages of review.
• If events subsequent to filing end the plaintiff's injury, the case is moot.
• Exceptions:
• Voluntary cessation: If the defendant voluntarily ceases the challenged activity but can resume it at any time, the case is not moot.
• Capable of repetition, yet evading review: A case is not moot when the challenged action is too short in duration to be fully litigated and there is a reasonable expectation that the plaintiff will be subject to the same action again.
3. Political Questions and Justiciability
• Political question doctrine:
• Federal courts will not decide political questions.
• Political questions are issues:
• Constitutionally committed to another branch of government.
• Incapable of resolution and enforcement by the judicial process.
• To determine if an issue is a political question, courts will look at:
• If there is a textually demonstrable constitutional commitment of the issue to another branch.
• If there is a lack of judicially discoverable and manageable standards for resolving the issue.
• Examples of political questions:
• Challenges to the impeachment process.
• Challenges to the amendment ratification process.
• Challenges to the President's power to unilaterally terminate a treaty.
• Foreign affairs issues.
• Guaranty Clause issues under Article IV.
• Partisan gerrymandering.
4. Abstention
• Federal courts may abstain from deciding a case where there are strong policy reasons to allow state courts to resolve the matter.
• Federal courts may abstain in these situations:
• To avoid interfering with pending state proceedings (Younger abstention)
• To avoid duplicative litigation (Colorado River abstention)
• To allow state courts to clarify unclear state law.
5. Adequate and Independent State Grounds
• The Supreme Court cannot review a state court decision that rests on adequate and independent state law grounds, even if a federal question is involved.
• A state law ground is adequate and independent if it fully supports the state court ruling and is independent of federal law considerations.
• The Supreme Court will deny review if reversing the state court's federal law decision would not change the outcome of the case.
• Exceptions:
• The Supreme Court may review a state decision if:
• A state law incorporates a federal law by reference.
• Important federal interests are included with substantive state law.
• If the state court explicitly states its decision rests on state law interpretation, the Supreme Court will not review.
• If the state court's opinion is unclear whether it rests on state or federal law, the Supreme Court may:
• Obtain clarification from the state court.
• Presume the state court decision relied partly on federal law and review the case.

The Separation of Powers

I. The Powers of Congress

A. Legislative Power

1. Source and Scope:
• Article I, Section 1 vests all legislative power in Congress.
• Congress can exercise only those powers granted to it by the Constitution.
• Incidental to the power to make laws, Congress has the right to:
• Conduct investigations and hearings.
• Consider matters on which it may legislate.
• Do all things "necessary and proper" for enacting legislation.
2. Enumerated Powers:
• Article I, Section 8 enumerates specific powers of Congress, including:
• Commerce Clause: The power to regulate commerce among the states, with foreign nations, and with Indian tribes.
• Congress can regulate:
• The channels of interstate commerce (highways, waterways, and air traffic).
• The instrumentalities of interstate commerce (cars, trucks, ships, and airplanes).
• Activities that substantially affect interstate commerce.
• Limitations:
• Congress cannot regulate non-economic intrastate activity.
• Exception: Congress can regulate non-economic intrastate activity if the regulation is part of a comprehensive scheme.
• Taxing Power: The power to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defense and general welfare of the United States.
• A tax will be upheld if:
• It is reasonably related to revenue production.
• Congress has the power to regulate the activity taxed.
• The tax's dominant purpose is revenue generation.
• Limitations:
• Congress cannot tax exports.
• Spending Power: The power to pay the debts and provide for the common defense and general welfare of the United States.
• Congress can use its spending power to encourage states to adopt policies consistent with federal goals, even if Congress lacks the power to directly regulate in those areas.
• Congress can attach conditions to the receipt of federal funds by states, as long as the conditions:
• Are clearly stated.
• Relate to the purpose of the spending program.
• Do not violate the Constitution.
• War and Defense Powers:
• Congress has the power to declare war, raise and support armies, provide and maintain a navy, and make rules for the government and regulation of the land and naval forces.
• Congress can establish military courts and tribunals.
• Admiralty and Maritime Power:
• Congress has plenary power to fix and determine maritime laws throughout the country.
• Bankruptcy Power:
• Congress has the power to establish uniform laws on the subject of bankruptcies throughout the United States.
• Postal Power:
• Congress has the power to establish post offices and post roads.
• Immigration and Naturalization Power:
• Congress has plenary power to regulate immigration and naturalization.
• Power Over Federal Property:
• Congress has the power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.
• Necessary and Proper Clause:
• Congress has the power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof.
• This clause grants Congress implied powers to enact legislation that is reasonably related to carrying out its enumerated powers.
3. Congressional Limits on the Executive:
• Congress has the power to:
• Control the purse strings of the federal government through its appropriations power.
• Impeach and remove the President, Vice President, and all civil officers of the United States for treason, bribery, or other high crimes and misdemeanors.
• Investigate the activities of the executive branch.
• This power is implied from the Necessary and Proper Clause.
• Congress can use its investigative power to:
• Gather information to support legislation.
• Oversee executive branch activities.
• Expose wrongdoing.
• Confirm presidential appointments.
• Ratify treaties.

II. The Powers of the President

A. Executive Power

1. Source and Scope:
• Article II, Section 1 vests the executive power in the President.
• The President has a duty to faithfully execute the laws.
• The President has broad discretion in carrying out the laws, but cannot act without congressional authorization.
2. Express Powers:
• Article II grants the President specific powers, including:
• Commander in Chief: The power to command the armed forces.
• Treaty Power: The power to make treaties with the advice and consent of the Senate (two-thirds of Senators present must concur).
• Appointment Power: The power to appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States whose appointments are not otherwise provided for in the Constitution.
• Congress may vest the appointment of inferior officers in the President, the courts, or the heads of departments.
• Pardon Power: The power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.
• Veto Power: The power to veto legislation passed by Congress.
• Congress can override a veto with a two-thirds vote of both houses.
3. Implied Powers:
• The President has inherent powers not expressly granted in the Constitution, derived from:
• The Vesting Clause: "The executive Power shall be vested in a President of the United States of America."
• The Take Care Clause: The President "shall take Care that the Laws be faithfully executed."
• Examples of implied powers:
• Executive Privilege: The right to withhold information from Congress and the courts.
• Executive Orders: Directives issued by the President to executive branch officials, having the force of law.
• Executive Agreements: International agreements made by the President without Senate approval.
• These agreements do not have the same legal force as treaties, but are binding on the United States.

III. The Powers of the Judiciary

A. Judicial Power

1. Source and Scope:
• Article III, Section 1 vests the judicial power of the United States in one Supreme Court and in such inferior courts as Congress may from time to time ordain and establish.
• The federal judiciary has the power to:
• Interpret and apply the Constitution and federal laws.
• Adjudicate cases and controversies.
• Exercise judicial review to determine the constitutionality of acts of the other branches and the states.
2. Limitations:
• Federal courts are limited to deciding "cases" and "controversies."
• They cannot issue advisory opinions.
• They must meet the requirements of standing, ripeness, and mootness.
• They will not decide political questions.

IV. Interbranch Checks and Balances

The Constitution establishes a system of checks and balances to ensure no single branch of government becomes too powerful.

1. Examples:
• Congress can impeach and remove the President.
• The President can veto legislation passed by Congress.
• The Supreme Court can declare laws passed by Congress or actions taken by the President unconstitutional.
• Congress can control the funding of executive branch agencies.
• The Senate must confirm presidential appointments.
• The Senate must ratify treaties negotiated by the President.
2. Purpose:
• The system of checks and balances prevents tyranny and ensures accountability.
• It encourages cooperation and compromise among the branches.

V. Delegation Doctrine

1. General Rule:
• Congress cannot delegate its legislative power to the executive branch.
2. Exception:
• Congress can delegate rule-making authority to executive agencies if it provides:
• Intelligible Principles: Clear guidelines and standards to guide the agency's discretion.
3. Purpose:
• The delegation doctrine ensures that Congress retains ultimate legislative authority.

The Relation of Nation and States in a Federal System

1. Intergovernmental Immunities: The extent to which each government is immune from regulation and taxation by the other.
2. Authority Reserved to the States: The powers that remain with the states, including the Tenth Amendment and the Dormant Commerce Clause.
3. National Power to Override State Authority: Situations where federal law preempts state law, focusing on the Supremacy Clause and express and implied preemption.
4. Relations Among States: The obligations states owe to each other, including the Full Faith and Credit Clause and the Privileges and Immunities Clause.

I. Intergovernmental Immunities

A. Immunity of the Federal Government

1. Source: The Supremacy Clause (Article VI, Clause 2) establishes that the Constitution, federal laws made pursuant to it, and treaties are the "supreme Law of the Land," binding on state judges.
2. Scope:
• Immunity from State Regulation and Taxation: States generally cannot regulate or tax the federal government or its agencies. This immunity stems from the Supremacy Clause and the principle that a state cannot interfere with the operations of the federal government.
• Examples: States cannot require a federal contractor to obtain a state license to construct facilities at an Air Force base. States cannot impose environmental regulations on federal agencies operating within their borders.
• Exceptions: States may tax federal employees' income, as long as the tax is nondiscriminatory and applies to all similarly situated individuals.
• Immunity from Suit: The federal government enjoys sovereign immunity, meaning it cannot be sued without its consent. Congress has waived sovereign immunity in certain cases, such as tort claims under the Federal Tort Claims Act.
• Exceptions:
• Suits against federal officers for actions taken in their personal capacity.
• Suits seeking injunctive relief against federal officers for actions taken in their official capacity.

B. Immunity of State Governments

1. Source: The Tenth Amendment reserves powers not delegated to the federal government to the states. The Eleventh Amendment prohibits federal courts from hearing lawsuits against states brought by citizens of another state or foreign country.
2. Scope:
• Immunity from Federal Taxation: States are generally immune from federal taxation that would interfere with their essential governmental functions.
• Example: The federal government cannot tax state park land.
• Exception: States can be taxed on activities that are not essential governmental functions, such as operating a state-owned liquor store.
• Immunity from Suit in Federal Court: The Eleventh Amendment generally bars private individuals from suing states in federal court for money damages. This immunity extends to state agencies and officials acting in their official capacity.
• Exceptions:
• Suits brought by the federal government against a state.
• Suits brought by one state against another state.
• Suits against state officials for violations of federal law.
• Suits for prospective injunctive relief against state officials.
• Suits authorized by Congress under its powers to enforce the 13th, 14th, and 15th Amendments.
• Suits where the state has expressly waived its immunity.

II. The Authority Reserved to the States

A. The Tenth Amendment

1. Text: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
2. Scope: The Tenth Amendment reserves to the states all powers not expressly delegated to the federal government by the Constitution. This reservation of power is the foundation of state police power, which allows states to regulate for the health, safety, welfare, and morals of their citizens.
3. Limitations:
• Supremacy Clause: Federal law is supreme over state law, so any state law that conflicts with valid federal law is preempted.
• Enumerated Powers of Congress: The Constitution specifically grants certain powers to the federal government, such as the power to regulate interstate commerce.
• Anti-Commandeering Doctrine: The federal government cannot "commandeer" state governments by forcing them to enact or administer federal programs.
• Examples:
• New York v. United States (1992): The Supreme Court struck down a provision of the Low-Level Radioactive Waste Policy Amendments Act that required states to either take title to radioactive waste generated within their borders or regulate it according to federal standards. The Court held that this provision violated the Tenth Amendment by forcing states to choose between regulating according to federal dictates or taking ownership of radioactive waste, a task traditionally relegated to the federal government.
• Printz v. United States (1997): The Supreme Court invalidated a provision of the Brady Handgun Violence Prevention Act that required state and local law enforcement officers to conduct background checks on prospective handgun purchasers. The Court reasoned that this provision violated the Tenth Amendment by compelling state officials to execute a federal program.

B. The Dormant Commerce Clause

1. Concept: Even in the absence of federal legislation, the Commerce Clause (Article I, Section 8) implicitly restricts state and local laws that burden interstate commerce. This restriction is known as the "dormant" or "negative" Commerce Clause.
2. Purpose: The Dormant Commerce Clause ensures that states do not erect barriers to the free flow of goods and services across state lines. It prevents states from engaging in economic protectionism that favors their own citizens or businesses at the expense of those from other states.
3. Analysis:
• Discriminatory Laws: If a state or local law discriminates against interstate commerce on its face or in its purpose, the law is subject to strict scrutiny. The law will be upheld only if the state can demonstrate that it is necessary to achieve a compelling state interest and there is no less restrictive alternative.
• Example: A state law that prohibits the sale of out-of-state milk unless it is bottled in the state would be considered discriminatory.
• Nondiscriminatory Laws: If a state or local law is facially neutral but has a disproportionate adverse impact on interstate commerce, the law is subject to a balancing test. The court will weigh the burden on interstate commerce against the local benefits of the law. The law will be upheld if the local benefits outweigh the burden on interstate commerce.
• Example: A state law that requires all trucks passing through the state to have a certain type of mudflap, regardless of their origin, would be considered nondiscriminatory, even if it increases costs for out-of-state trucking companies.
4. Exceptions:
• Congressional Authorization: Congress can expressly authorize states to enact laws that would otherwise violate the Dormant Commerce Clause.
• Market Participant Exception: If a state acts as a market participant, rather than a regulator, it may favor its own citizens or businesses. This exception applies when the state is buying or selling goods or services, or providing subsidies.
• Example: A state-owned cement factory may give preferential treatment to in-state buyers.

III. National Power to Override or Extend State Authority

A. The Supremacy Clause

1. Source: Article VI, Clause 2 establishes that the Constitution, federal laws made pursuant to it, and treaties are the "supreme Law of the Land." This clause forms the basis for the doctrine of preemption, which dictates that federal law supersedes conflicting state law.

B. Express Preemption

1. Definition: Occurs when a federal law explicitly states that it preempts state or local law in a particular area.
2. Scope: Express preemption clauses must be narrowly construed. Federal law preempts state law only to the extent specified in the preemption clause.

C. Implied Preemption

1. Definition: Occurs when federal law implicitly preempts state or local law, even if the federal law does not expressly address preemption.
2. Types:
• Conflict Preemption: Arises when it is impossible to comply with both federal and state law.
• Example: If a federal law sets a minimum wage of $7.25 per hour and a state law sets a minimum wage of $15 per hour, the state law is preempted because it is impossible for an employer to comply with both laws.
• Obstacle Preemption: Arises when state law stands as an obstacle to the accomplishment of the purposes and objectives of Congress.
• Example: If a federal law requires airlines to provide passengers with certain safety information and a state law prohibits airlines from providing that information, the state law is preempted because it interferes with the federal objective of promoting air safety.
• Field Preemption: Arises when federal law so thoroughly occupies a field of regulation that it leaves no room for state regulation. This type of preemption occurs when Congress has evidenced an intent to occupy the field through a comprehensive regulatory scheme.
• Example: Federal law extensively regulates the labeling of food products. A state law that imposes additional labeling requirements on food products would likely be preempted under the field preemption doctrine.

D. Authorization of Otherwise Invalid State Action

1. Concept: Congress has the power to authorize states to enact laws that would otherwise be unconstitutional under the Dormant Commerce Clause or other constitutional provisions.
2. Scope: Congressional authorization must be clear and unambiguous.

IV. Relations Among States

A. Full Faith and Credit Clause

1. Source: Article IV, Section 1 requires states to give full faith and credit to the public acts, records, and judicial proceedings of every other state.
2. Scope: This clause requires states to:
• Recognize and enforce judgments of other states.
• Example: If a person obtains a judgment in a lawsuit in State A, that judgment is enforceable in State B.
• Give effect to the laws of other states, as long as those laws do not violate the public policy of the forum state.
• Example: If a couple is validly married in State A, that marriage is generally recognized in State B, even if State B has different marriage laws.
3. Limitations:
• Penal Judgments: A state is not required to enforce the criminal laws or penal judgments of another state.
• Public Policy Exception: A state may refuse to enforce the laws of another state if those laws violate its strong public policy.
• Lack of Jurisdiction: A state is not required to give full faith and credit to a judgment of another state if that state lacked jurisdiction to enter the judgment.

B. Privileges and Immunities Clause

1. Source: Article IV, Section 2 guarantees that "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States."
2. Scope: This clause prohibits states from discriminating against citizens of other states with respect to fundamental rights and essential activities. This clause aims to prevent states from treating their own residents more favorably than out-of-state residents.
3. Protected Rights and Activities: The Privileges and Immunities Clause protects a range of rights, including:
• The Right to Travel: Citizens have a fundamental right to travel freely among the states.
• The Right to Seek Employment: Citizens have a right to seek employment in any state.
• Exception: States may require residency for certain government jobs, such as police officers or teachers.
• The Right to Own Property: Citizens have a right to own property in any state.
• Access to Courts: Citizens have a right to access the courts of any state.
4. Analysis: To determine whether a state law violates the Privileges and Immunities Clause, courts consider:
• Whether the law discriminates against out-of-state citizens.
• Whether the discrimination burdens a fundamental right or an essential activity.
• Whether the state has a substantial justification for the discrimination.
• Whether there are less restrictive means to achieve the state's objective.
5. Exceptions: The Privileges and Immunities Clause does not prohibit discrimination against out-of-state residents:
• If the discrimination is related to protecting a legitimate state interest.
• If the state has a substantial reason for the difference in treatment.
• If the discrimination bears a substantial relationship to the state's objective.
• Example: In Supreme Court of New Hampshire v. Piper (1985), the Supreme Court invalidated a New Hampshire rule limiting bar admission to state residents. The Court found that the rule discriminated against out-of-state residents and did not bear a substantial relationship to the state's objective of ensuring the competency of its lawyers.

C. Interstate Compacts

1. Source: Article I, Section 10 permits states to enter into agreements or compacts with each other, but requires congressional consent if the compact increases state power in a way that could interfere with federal supremacy.
2. Purpose: Interstate compacts allow states to cooperate on matters of mutual concern, such as environmental protection, resource management, and law enforcement.

Individual Rights

I. Due Process

A. General Constitutional Basis

1. Fifth Amendment (Federal): No person shall be deprived of life, liberty, or property, without due process of law.
2. Fourteenth Amendment (State): Nor shall any State deprive any person of life, liberty, or property, without due process of law.
3. Selective Incorporation: Most provisions of the Bill of Rights apply to the states through the Fourteenth Amendment.

B. Procedural Due Process

1. Definition: The government must follow fair procedures before depriving a person of life, liberty, or property. This includes notice of the charges or proceedings and the opportunity to be heard.
2. Property: This includes interests that a person has a legitimate claim to, like public education or government employment (but not at-will employment).
3. What process is due? The amount of process due depends on the balancing test established in Matthews v. Eldridge:
• Importance of the interest to the person: More important interests require more process.
• Government interest/burden in efficiency: More burdensome procedures may result in less process.
• Value of procedural safeguards: Higher risk of erroneous deprivation necessitates more process.
4. Examples:
• A parolee must have an evidentiary hearing before parole revocation [Morrissey v. Brewer].
• An adult must have an adversary hearing before involuntary commitment to a mental institution.
• A minor child is entitled to a screening by a neutral fact-finder before commitment for medical treatment [Parham v. J.R.].
5. Waiver: Due process rights can be waived if done voluntarily and knowingly.

C. Substantive Due Process

1. Definition: Protects fundamental rights that are not explicitly listed in the Constitution.
2. Standards of Review:
• Strict Scrutiny: Applied to laws affecting fundamental rights. The burden is on the government to prove the law is necessary to achieve a compelling government interest.
• Examples: Privacy rights (MCSOFA: Marriage, Contraception, Sexual Conduct, Obscenity in the home, Family Relations, Abortion), right to vote, right to interstate travel, right to refuse medical treatment.
• Rational Basis: Applied to all other rights. The burden is on the plaintiff to show the law is not rationally related to a legitimate government interest.
• Examples: Right to education (not a fundamental right), welfare benefits, economic regulations.

D. Fundamental Rights under Substantive Due Process

1. Right to Privacy: Although not explicitly mentioned in the Constitution, this right encompasses various personal choices.
• Contraception: States cannot prohibit the distribution or use of contraceptives.
• Marriage: The right to marry is fundamental and protected by the Fourteenth Amendment.
• Same-sex Marriage: Restrictions on same-sex marriage have been struck down, even though the Court applied rational basis review.
• Abortion: Roe v. Wade established a trimester framework for abortion regulations. Planned Parenthood v. Casey replaced this with an "undue burden" standard. However, in Dobbs v. Jackson Women's Health Organization, the Supreme Court overturned Roe and Casey, holding that the Constitution does not confer a right to abortion.
• Family Relations: The government cannot dictate family living arrangements without a compelling reason [Moore v. East Cleveland].
• Parental Rights: Parents have a fundamental right to make decisions concerning their children's care, custody, and control.
• Termination of parental rights requires a high level of due process.
2. Right to Vote: Citizens over 18 have the right to vote in all federal, state, and local elections. Restrictions on this right face strict scrutiny.
• Ballot Access: Regulations of ballot access for candidates based on age, residency, or filing fees only require rational basis review.
• Voter ID Requirements: Generally upheld as reasonable exercises of state police power.
3. Right to Interstate Travel: Citizens can move between states without undue burdens. Restrictions on this right are subject to strict scrutiny.
• Durational residency requirements for receiving state benefits are generally unconstitutional [Shapiro v. Thompson].
4. Right to Refuse Medical Treatment: Individuals have a right to refuse unwanted medical treatment, but this right is not absolute and may be balanced against state interests.
5. Right to Bear Arms: The Second Amendment protects the right to keep and bear arms for self-defense in the home. This right applies to both federal and state governments [McDonald v. City of Chicago].

II. Equal Protection

A. Constitutional Basis

1. Fourteenth Amendment: No State shall deny to any person within its jurisdiction the equal protection of the laws.
2. Applies to the Federal Government: The Court has read equal protection principles into the Fifth Amendment's Due Process Clause, making it applicable to the federal government.

B. Standards of Review

1. Strict Scrutiny: Applied to laws classifying individuals based on suspect classifications (race, national origin, alienage) or affecting fundamental rights. The burden is on the government to show the law is necessary to achieve a compelling government interest.
2. Intermediate Scrutiny: Applied to classifications based on quasi-suspect classifications (gender, non-marital children). The burden is on the government to show the law is substantially related to an important government interest.
3. Rational Basis: Applied to all other classifications. The burden is on the plaintiff to show the law is not rationally related to a legitimate government interest.

C. Suspect Classifications

1. Race: Laws that discriminate based on race are subject to strict scrutiny.
• De Jure Discrimination: Intentional discrimination on its face or by application.
• De Facto Discrimination: A law that is racially neutral on its face but has a discriminatory impact. Proving discriminatory intent is required to trigger strict scrutiny.
• Affirmative Action: Programs designed to benefit historically disadvantaged racial minorities. These are also subject to strict scrutiny.
• Quotas and set-asides are generally prohibited unless there is a history of specific and identifiable discrimination [Richmond v. J.A. Croson Co.].
2. National Origin: Discrimination based on national origin also triggers strict scrutiny.
3. Alienage: Laws that discriminate against non-citizens are generally subject to strict scrutiny.
• Exception: State and local governments can discriminate in areas related to self-government and democratic process (e.g., voting, holding elected office, serving on a jury). These are subject to rational basis review.

D. Quasi-Suspect Classifications

1. Gender: Gender classifications are subject to intermediate scrutiny. The government must show an "exceedingly persuasive justification" for the discrimination [United States v. Virginia].
• Laws that perpetuate stereotypes about traditional gender roles are likely to be struck down.
2. Non-Marital Children: Classifications based on legitimacy (birth status) receive intermediate scrutiny. Laws that discriminate against non-marital children are generally unconstitutional.

E. Other Classifications

1. Wealth: Classifications based on wealth are subject to rational basis review.
2. Age: Age classifications also receive rational basis review.
3. Mental Disability: Classifications based on mental disability are subject to rational basis review.
4. Sexual Orientation: The Supreme Court has not designated sexual orientation as a suspect or quasi-suspect class, so these classifications are reviewed under rational basis. However, the Court has struck down laws that discriminate against LGBTQ individuals, even while applying this lower standard.

III. Individual Rights and State Action

A. State Action Doctrine

1. Generally: The Constitution's individual rights provisions only apply to actions by the government (state action). Private conduct is generally not subject to constitutional constraints.

B. Types of State Action

1. Traditional Government Function: When a private entity performs a function traditionally and exclusively reserved to the government (e.g., running an election).
2. Public Function: When a private entity exercises powers traditionally performed by the government and is significantly involved in public affairs.
3. Entanglement: When the government is significantly involved in private conduct, either through encouragement, endorsement, or entwinement.

C. Private Conduct and the Thirteenth Amendment

1. Exception: The Thirteenth Amendment, which prohibits slavery and involuntary servitude, can be used to reach private conduct that constitutes a "badge or incident of slavery".

IV. First Amendment Freedoms

A. Freedom of Speech and Expression

1. General Principles: The First Amendment protects individuals from government restrictions on speech and other forms of expression. It applies to the states through the Fourteenth Amendment.
2. Types of Restrictions:
• Content-Based: Restrictions based on the subject matter or viewpoint of the speech. These are subject to strict scrutiny.
• Exceptions: Unprotected speech categories like obscenity, defamation, fighting words, incitement to imminent lawless action, and true threats are not protected by the First Amendment.
• Content-Neutral: Restrictions that regulate the time, place, and manner of speech, but not its content. These are subject to intermediate scrutiny.

B. Unprotected Speech

1. Incitement to Imminent Lawless Action: Speech that is directed to inciting or producing imminent lawless action and is likely to incite such action [Brandenburg v. Ohio].
2. Fighting Words: Words that by their very utterance inflict injury or tend to incite an immediate breach of the peace.
3. True Threats: Statements meant to communicate a serious expression of intent to commit an act of unlawful violence to a particular individual or group of individuals.
4. Obscenity:
• Miller Test: To be considered obscene, the material must:
• Appeal to the prurient interest (applying contemporary community standards).
• Depict or describe sexual conduct in a patently offensive way (applying contemporary community standards).
• Lack serious literary, artistic, political, or scientific value (applying a national reasonable person standard).
• Child Pornography: Not protected by the First Amendment.
5. Defamation: False statements of fact that harm someone's reputation. Public figures and officials must prove actual malice (knowledge that the statement was false or reckless disregard for the truth) to recover damages.
6. Commercial Speech: Speech that proposes a commercial transaction. Receives less protection than other forms of speech.
• Central Hudson Test: Commercial speech restrictions must:
• Concern lawful activity and not be misleading.
• Serve a substantial government interest.
• Directly advance that interest.
• Not be more extensive than necessary to serve that interest.

C. Content-Neutral Restrictions: Time, Place, and Manner

1. Public Forums: Streets, sidewalks, parks, and other public places traditionally open to expressive activity. Content-neutral restrictions in these forums must meet intermediate scrutiny.
• Must be narrowly tailored to serve an important government interest.
• Must leave open alternative channels of communication.
2. Limited Public Forums: Places not traditionally open to public expression but opened by the government for a specific purpose (e.g., a school auditorium open for a debate).
3. Non-Public Forums: Government property not historically open to expressive activity (e.g., military bases, prisons). The government can regulate speech in these forums as long as the restrictions are reasonable and viewpoint neutral.
4. Permit Requirements: Can be imposed for activities like parades or protests as long as the criteria for issuance are content-neutral and there are clear standards to prevent arbitrary denials.

D. Prior Restraint

1. Definition: A government action that prevents speech from occurring. Generally presumed to be unconstitutional.
• Heavy Burden: The government bears a heavy burden to justify prior restraint. It must show a compelling interest and that the restraint is narrowly tailored.
2. Examples:
• Injunctions: Court orders prohibiting speech can constitute prior restraint. They must be narrowly drawn and specific.
• Licensing Schemes: Systems requiring pre-approval for speech can be prior restraints if they give officials unfettered discretion to deny permits.

E. Overbreadth

1. Definition: A law that prohibits a substantial amount of protected speech along with unprotected speech.
2. Substantial Overbreadth: The overbreadth must be substantial in relation to the law's legitimate sweep to be unconstitutional.
3. Standing: A person whose speech would be constitutionally protected can challenge an overbroad law, even if their own speech could be regulated.

F. Vagueness

1. Definition: A law that is so unclear that a reasonable person cannot tell what speech is prohibited and what is permitted.
2. Due Process Violation: Vague laws violate due process because they fail to provide fair notice of what conduct is forbidden.

G. Freedom of Association

1. Expressive Association: The right to join with others to express ideas and advocate for change. Subject to strict scrutiny if the government interferes with this right.
• Public Employment: Public employees have free speech rights, but the government has more leeway to regulate their speech when it relates to their official duties.
• Loyalty Oaths: Generally permissible for public employees, but they cannot be overbroad or vague.
2. Intimate Association: The right to form close personal relationships with others (e.g., family, friends). This right is protected under the Fourteenth Amendment's Due Process Clause.

H. Freedom of the Press

1. No Prior Restraint: The government cannot prevent the press from publishing information, except in very limited circumstances.
2. Libel and Privacy: The press can be held liable for publishing false information that harms someone's reputation (libel) or invades their privacy. Public figures have a higher burden to prove libel.

I. Freedom of Religion

1. Free Exercise Clause: Prohibits the government from interfering with the free exercise of religion.
• Strict Scrutiny: Laws that intentionally target religious practices or beliefs are subject to strict scrutiny.
• Neutral Laws of General Applicability: Generally do not violate the Free Exercise Clause, even if they incidentally burden religious practices [Employment Division v. Smith].
2. Establishment Clause: Prohibits the government from establishing a religion or favoring one religion over another.
• Lemon Test: A law must have a secular purpose, its primary effect must neither advance nor inhibit religion, and it must not foster excessive government entanglement with religion.
• Endorsement Test: The government cannot endorse or disapprove of religion.
• Coercion Test: The government cannot coerce individuals to participate in religious activities.
3. Examples:
• School prayer is generally unconstitutional, as it violates the Establishment Clause.
• Government funding of religious schools is permissible if the aid is neutral and goes to the students, not the school directly (e.g., vouchers) [Zelman v. Simmons-Harris].

Contracts Outline

I. Formation of Contracts

• Governing Law
• UCC governs contracts for the sale of goods (tangible, movable personal property). The UCC trumps any contrary common law rule.
• Common law governs contracts not involving the sale of goods.
• Hybrid contracts (involve both goods and services) are determined by the predominant purpose of the transaction.
• Elements of a Valid Contract
• Mutual Assent (Offer and Acceptance)
• Offer
• Requires intent to be bound to definite terms.
• Requires communication to the offeree.
• Must have a reasonably certain basis to provide a remedy.
• Must include words of promise, undertaking, or commitment.
• Essential terms (parties, subject matter, price, quantity) must be covered under the common law. Courts may supply missing terms if the parties intended to contract.
• Under the UCC, quantity is the only essential term.
• Exception: requirements and output contracts (UCC implies "good faith").
• UCC fills gaps if other terms are missing.
• Output and requirement contracts must be in good faith and not unreasonably disproportionate.
• Termination of Offer
• Lapse of time
• Revocation
• Rejection (includes counter-offer)
• Operation of law
• Advertisements are generally not offers, unless they are in the nature of a reward or addressed to a specific person.
• Auctions are generally invitations for offers (bids).
• "With reserve": seller can withdraw the goods anytime before the hammer falls
• "Without reserve": seller cannot withdraw the goods once bidding has started
• Acceptance
• Requires an objective manifestation of assent to the terms of the offer.
• Offeree must know of the offer.
• Must be communicated to the offeror.
• Mailbox rule: acceptance is effective upon dispatch, not receipt, unless the offer specifies otherwise or an unauthorized method of acceptance is used.
• If the offer specifies a particular manner of acceptance, then that method must be used.
• If the offeree sends both an acceptance and rejection, the first to arrive is effective.
• Mirror image rule: acceptance must be a "mirror image" of the offer (common law).
• Battle of the forms: acceptance can add or change terms (UCC).
• Acceptance is still valid even with different or additional terms, unless expressly made conditional on assent to those terms.
• For merchants, additional terms in the acceptance become part of the contract unless they materially alter the offer, the offer expressly limits acceptance to its terms, or the offeror objects within a reasonable time.
• For non-merchants, additional terms are treated as proposals for addition to the contract.
• Different (conflicting) terms are knocked out and replaced with UCC gap fillers.
• Certainty of Terms
• Terms must be sufficiently definite to determine the parties, whether a breach has occurred, and the remedy.
• Courts can supply reasonable terms if the parties intended to contract.
• UCC provides gap fillers for missing terms.
• Consideration
• Consideration is a benefit to the promisor or detriment to the promisee that is bargained for and given in exchange for the promise.
• Adequacy of consideration is generally not relevant.
• Exceptions: sham consideration or evidence of fraud or duress
• No past consideration is recognized.
• Pre-existing duty rule: performing a pre-existing duty is not consideration (common law).
• Exceptions: new or different performance is promised, unforeseen difficulties arise, a third party promises to pay, or there is a good faith modification under the UCC.
• Illusory promises are not consideration.
• A promise that is entirely optional on the part of the promisor is illusory.
• Requirements and output contracts are valid, even though one party has discretion in determining the quantity. The quantity must be determined in good faith.
• Alternatives to Consideration
• Promissory Estoppel
• A promise is enforceable even without consideration if the promisee reasonably relied on the promise to their detriment and injustice can only be avoided by enforcing the promise.
• Requires:
• A promise
• Reliance by the promisee that was reasonably foreseeable by the promisor
• Actual detriment to the promisee
• Enforcement is necessary to avoid injustice
• Quasi-Contract
• A legal obligation imposed by the court to prevent unjust enrichment.
• Requires:
• One party conferred a benefit on another
• The recipient of the benefit knew of the benefit and accepted it
• It would be unjust for the recipient to keep the benefit without paying for it
• Moral Obligation
• A promise made in response to a pre-existing moral obligation may be enforceable in some jurisdictions.
• Examples: debts barred by the statute of limitations, debts discharged in bankruptcy
• Statutory Substitutes
• Some statutes create enforceable obligations without consideration, such as the firm offer rule under the UCC.

II. Defenses to Enforceability

• Statute of Frauds
• Requires certain contracts to be in writing and signed by the party to be charged (the defendant).
• Contracts within the Statute of Frauds: "MY LEGS"
• Marriage: contracts in consideration of marriage
• Year: contracts that cannot be fully performed within one year
• Land: contracts for the sale of land or an interest in land
• Exception: part performance, such as improvements to the land or payment
• Executor: contracts by an executor to pay estate debts from personal funds
• Guarantee/Suretyship: contracts to guarantee the debt of another
• Sale of goods for $500 or more
• Writing requirements:
• Common law: must state the parties, subject matter, and essential terms
• UCC: must indicate that a contract has been made, identify the parties, contain a quantity term, and be signed by the party to be charged
• Need not include all essential terms or accurately state the terms, but the contract is only enforceable up to the quantity stated in the writing.
• Signature can be any symbol adopted with the intent to authenticate, including typed or electronic signatures.
• Exceptions to the Statute of Frauds:
• Specially manufactured goods: oral contracts are enforceable if the goods are specially manufactured for the buyer and not suitable for sale to others.
• Merchant's confirmation exception: if one merchant sends a written confirmation to another merchant within a reasonable time, the confirmation is enforceable against the receiving merchant even if they didn't sign it, unless they object within 10 days.
• Admission in court: if the party to be charged admits in court that a contract was made, it's enforceable even if not in writing.
• Performance: part performance can make an oral contract enforceable.
• UCC: enforceable up to the quantity of goods delivered and accepted or paid for
• Land: part performance, such as payment or improvements to the land, can make an oral contract enforceable
• Effect of a Writing that Satisfies the Statute of Frauds:
• Only enforceable up to the quantity of goods shown in the writing.
• Parol Evidence Rule
• Prevents the introduction of prior or contemporaneous oral or written evidence that contradicts the terms of a fully integrated written contract.
• Applies when there is a valid, final written agreement.
• Integration:
• Complete integration: the writing contains the entire agreement of the parties, and no parol evidence is admissible to supplement or contradict the terms.
• Partial integration: the writing contains some but not all of the terms of the agreement, and parol evidence is admissible to supplement but not contradict the terms.
• The intent of the parties determines whether the writing is integrated and whether it is completely or partially integrated.
• Merger clause: a clause in the contract stating that the writing is the entire agreement of the parties is strong evidence of complete integration.
• Exceptions to the Parol Evidence Rule:
• Evidence to explain or interpret the terms of the written contract is always admissible.
• Evidence to supplement the terms of a partially integrated written contract is admissible.
• UCC: evidence of trade usage, course of dealing, and course of performance can be used to supplement a written contract, even if it's fully integrated.
• Evidence to contradict the terms of the written contract is not admissible.
• Evidence to show that the written agreement is invalid or unenforceable is admissible.
• Examples: fraud, duress, mistake, lack of consideration, condition precedent
• Evidence to show a collateral agreement is admissible.
• A collateral agreement is a separate agreement that relates to the same subject matter as the written contract but does not contradict its terms.
• Evidence to show reformation is admissible.
• Reformation is a court-ordered correction of a written contract to reflect the true agreement of the parties.
• Requires clear and convincing evidence that the writing does not accurately reflect the agreement due to a mutual mistake or fraud.
• Lack of Capacity
• Infancy: contracts with minors are voidable at the option of the minor.
• Exceptions: contracts for necessaries, contracts ratified after reaching the age of majority, or contracts where the minor misrepresented their age.
• Mental Incompetence: contracts with mentally incompetent persons are voidable if the person was unable to understand the nature and consequences of the transaction.
• If a guardian has been appointed, the contract is void.
• Contracts can be ratified if the person regains competence.
• Intoxication: contracts with intoxicated persons are voidable if the person was so intoxicated that they were unable to understand the nature and consequences of the transaction.
• The other party must have known or had reason to know of the intoxication.
• The contract can be ratified once the person becomes sober.
• Defects in Mutual Assent
• Mutual Mistake: a contract is voidable if both parties made a mistake about a basic assumption of the contract that has a material effect on the agreement, and the adversely affected party did not bear the risk of the mistake.
• Unilateral Mistake: a contract is generally enforceable even if one party made a mistake, unless the other party knew or should have known of the mistake and it would be unconscionable to enforce the contract.
• Duress
• A contract is voidable if one party was forced to enter into the contract by an improper threat that left them with no reasonable alternative.
• The threat must be wrongful or unlawful.
• Undue Influence
• A contract is voidable if one party was induced to enter into the contract by unfair persuasion from a person in a position of trust or confidence.
• Requires a showing of:
• Susceptibility of the influenced party
• Opportunity to exercise undue influence
• Disposition to exercise undue influence
• Unnatural or suspicious transaction
• Unconscionability
• A contract is voidable if it is so unfair that it shocks the conscience of the court.
• Requires a showing of both:
• Procedural unconscionability: unfairness in the bargaining process (e.g., hidden terms, unequal bargaining power).
• Substantive unconscionability: unfairness in the terms of the contract (e.g., excessive price, one-sided terms).
• Rarely successful as a defense.
• Illegality
• Contracts with an illegal subject matter are void.
• Contracts that violate public policy are also unenforceable.

III. Contract Content and Meaning

• Interpretation
• Courts interpret contracts to give effect to the intent of the parties.
• Plain meaning rule: courts will enforce the plain meaning of the contract language.
• Exception: ambiguous terms
• Ambiguous terms are construed against the drafter.
• The expression of one thing excludes the other.
• UCC rules of interpretation:
• Express terms control, then course of performance, course of dealing, and trade usage.
• Course of performance: how the parties have acted under the current contract.
• Course of dealing: how the parties have acted in past contracts.
• Trade usage: the customs and practices of the industry.
• UCC provides gap fillers for missing terms.
• Examples: price, time for payment, delivery terms.
• Conditions
• A condition is an event that must occur before a party's duty to perform arises or is discharged.
• Types of conditions:
• Express conditions: clearly stated in the contract.
• Conditions precedent: must occur before a duty to perform arises.
• Conditions subsequent: occur after a duty to perform arises and discharge the duty.
• Implied conditions: implied by law or the circumstances.
• Constructive conditions: imposed by law to ensure fairness.
• Conditions of exchange: each party's performance is conditioned on the other party's performance.
• Material breach excuses the non-breaching party's duty to perform.
• Substantial performance does not excuse the other party's performance, but the non-breaching party can recover damages for any defects.
• Factors to consider in determining whether a breach is material: extent of deprivation of benefit, availability of compensation for the defect, forfeiture suffered by the breaching party, likelihood of cure, good faith of the breaching party.
• Independent covenants: each party's performance is not conditioned on the other party's performance, and a breach by one party does not excuse the other party's performance.
• Excuse of Conditions:
• Waiver: a party can voluntarily waive a condition.
• Election: a party can choose to treat a condition as satisfied even if it has not been met.
• Estoppel: a party can be estopped from asserting a condition if they have misled the other party into relying on the condition being waived.
• Prevention: a party cannot hinder or prevent the occurrence of a condition and then claim that the condition has not been met.
• Impossibility, Impracticability, and Frustration of Purpose:
• Impossibility: performance is excused if it becomes objectively impossible due to an unforeseen event.
• Impracticability: performance is excused if it becomes extremely and unreasonably difficult or expensive due to an unforeseen event.
• Frustration of purpose: performance is excused if the purpose of the contract is frustrated by an unforeseen event.
• Modification
• Common law: requires consideration.
• Pre-existing duty rule: performing a pre-existing duty is not consideration for a modification.
• Exceptions: new or different performance, unforeseen difficulties, third party promises to pay.
• Restatement: allows modification without consideration if fair and equitable under the circumstances.
• UCC: requires good faith but not consideration.
• "No oral modification" clauses are generally enforceable, but courts may refuse to enforce them if they would result in injustice.
• Warranties
• UCC: implied warranties are automatically included in contracts for the sale of goods, unless specifically disclaimed.
• Warranty of title: seller warrants that they have good title to the goods and the right to transfer them.
• Warranty of merchantability: seller warrants that the goods are fit for their ordinary purpose (merchants only).
• Disclaimer must be conspicuous and mention merchantability.
• Warranty of fitness for a particular purpose: seller warrants that the goods are fit for the buyer's particular purpose if the seller knows the purpose and the buyer relies on the seller's expertise.
• Disclaimer must be in writing and conspicuous.
• Express warranties are created by the seller's affirmations or promises about the goods.
• Disclaimer cannot be inconsistent with the express warranty.
• Disclaimers must be clear and conspicuous.
• Attempts to exclude liability for personal injury in consumer goods are prima facie unconscionable.
• Limited remedies restrict the buyer's remedies for breach.
• Examples: repair or replacement only.
• Exclusion of consequential damages is permitted unless unconscionable.
• Risk of Loss
• Determines which party bears the loss if the goods are damaged or destroyed before delivery.
• UCC rules:
• Shipment contract: risk of loss passes to the buyer when the goods are delivered to the carrier.
• Destination contract: risk of loss passes to the buyer when the goods are delivered to the buyer's destination.
• If the contract doesn't specify, it's presumed to be a shipment contract.
• Common law: risk of loss remains with the seller until delivery is complete.
• Exceptions: if the buyer breaches the contract or assumes the risk of loss.
• Performance and Breach
• Seller's obligations: transfer and deliver goods.
• Buyer's obligations: accept and pay for goods.
• Breach: failure to perform a contractual obligation.
• Material breach: excuses the non-breaching party's performance.
• Minor breach: does not excuse the non-breaching party's performance, but the non-breaching party can recover damages for the breach.
• UCC: perfect tender rule requires the seller to deliver goods that conform to the contract in every respect.
• Buyer has the right to reject non-conforming goods.
• Seller has the right to cure a defective tender before the time for performance expires.
• Installment contracts: buyer can reject an installment only if it substantially impairs the value of the installment and cannot be cured.
• Anticipatory Repudiation: one party clearly states that they will not perform their obligations under the contract before performance is due.
• Non-breaching party can:
• Sue immediately for breach
• Wait until performance is due and then sue
• Suspend their own performance
• Urge the breaching party to perform
• Repudiation can be retracted if the non-breaching party has not yet relied on it.
• Remedies
• Damages: monetary compensation for the loss caused by the breach.
• Expectation damages: put the non-breaching party in the position they would have been in if the contract had been performed.
• Calculated as the loss in value of the breaching party's performance plus incidental and consequential damages, minus any expenses saved as a result of the breach.
• Reliance damages: put the non-breaching party in the position they were in before the contract was made.
• Awarded when expectation damages are too speculative or uncertain.
• Consequential damages: foreseeable damages that result from the breach but are not directly caused by it.
• Must be foreseeable and certain.
• UCC: buyer can recover consequential damages that the seller had reason to know about and that could not be avoided by cover.
• Incidental damages: costs incurred as a result of the breach.
• Examples: costs of storage, transportation, inspection.
• Liquidated damages: a pre-determined amount of damages agreed to by the parties in the contract.
• Enforceable if reasonable and not a penalty.
• Restitution: prevents unjust enrichment by restoring to a party any benefit they conferred on the other party.
• Awarded when the contract is unenforceable, the plaintiff is the breaching party, or the defendant breached but the plaintiff is not entitled to damages.
• Specific Performance: a court order requiring the breaching party to perform their obligations under the contract.
• Awarded only when damages are inadequate.
• Not available for personal service contracts or contracts requiring ongoing cooperation.
• Exception: negative injunctions can prohibit a breaching party from performing services for a competitor.
• UCC: available if the goods are unique or if cover is not possible.
• Available in output and requirements contracts.
• Mitigation of Damages: the non-breaching party has a duty to mitigate their damages.
• Failure to mitigate reduces the amount of damages recoverable.
• Third-Party Beneficiaries
• A third party who benefits from a contract between two other parties.
• Intended beneficiaries: have the right to enforce the contract.
• Creditor beneficiaries: a promisee owes a debt to the third party, and the promisor promises to pay the debt.
• Donee beneficiaries: the promisee intends to make a gift to the third party.
• Incidental beneficiaries: do not have the right to enforce the contract.
• Defenses: any defenses the promisor would have against the promisee are also available against the third-party beneficiary.
• Assignment of Rights and Delegation of Duties
• Assignment: a transfer of rights under a contract to a third party.
• Generally permissible unless the contract prohibits it or the assignment would materially alter the obligor's duties.
• Delegation: a transfer of duties under a contract to a third party.
• Generally permissible unless the contract prohibits it, the duty involves personal skill or judgment, or the delegation would materially alter the obligee's expectations.
• Rights of the Assignee:
• The assignee steps into the shoes of the assignor and can enforce the contract against the obligor.
• The obligor can raise any defenses against the assignee that they would have had against the assignor.
• Liability of the Delegator:
• The delegator remains liable on the contract unless the obligee agrees to release them.
• The delegatee is also liable on the contract if they agree to perform the duties.

IV. Performance, Breach, and Discharge

• Parol Evidence Rule (PER): When parties have a final written agreement (completely integrated), evidence of prior or contemporaneous agreements is not admissible to vary or contradict the writing.
• A writing is "partially integrated" when it's a final expression but not complete; it can be supplemented with consistent additional terms.
• Exceptions to PER: formation defenses, interpretation, failure of condition precedent, clerical error, and later modifications.
• UCC Interpretation: Assumes a written contract is partially integrated, allowing outside terms.
• Breach is the failure to discharge an absolute duty.
• Material Breach vs. Substantial Performance
• Factors: benefit received, adequacy of damages, extent of performance, hardship to breaching party, negligence/willfulness.
• Common Law:
• Material breach lets the non-breaching party withhold performance and pursue remedies.
• Minor breach lets the non-breaching party pursue damages but they must still perform.
• UCC:
• Perfect Tender Rule: Goods and tender must match contract specifications.
• Seller's Breach: For non-conforming goods, the buyer may reject all, accept some and reject the rest, or accept all and sue.
• Buyer's Right to Inspect: Reasonable time, place, and manner; buyer pays unless goods are non-conforming and rejected.
• Material breach applies only to installment contracts or by stipulation.
• Excuse of Condition
• Wrongful Prevention
• Voluntary Disablement
• Anticipatory Repudiation
• Actual Material Breach
• Waiver & Estoppel
• Impossibility, Impracticability, or Frustration of Purpose
• Substantial Performance
• Discharge
• Impossibility: When performance is objectively impossible due to unforeseen events.
• Impracticability: Performance is extremely burdensome due to unforeseen events.
• Frustration of Purpose: The purpose of the contract becomes commercially valueless because of unforeseen events.
• Modification: Under common law, pre-existing duty rule applies. Under UCC, good faith is required.
• No Oral Modification Clause: May not be enforced if it leads to unjust enrichment.
• Agreement: Parties can agree to discharge duties.
• Waiver: A party can waive a condition or right.
• Anticipatory Repudiation: A party unequivocally states they won't perform.
• Non-breaching party can:
• Suspend performance
• Sue immediately
• Rescind the contract
• Retraction: Possible if the breaching party shows willingness and ability to perform.
• UCC:
• A party can demand assurances if there are reasonable grounds for insecurity about the other party's performance.
• Failure to provide adequate assurances within a reasonable time (max 30 days) is treated as repudiation.

V. Remedies

• Types of Damages:
• Expectation Damages: Put the non-breaching party in the position they'd be in if the contract was performed.
• Must be foreseeable at contract formation.
• Formula: Loss in value + other loss - cost avoided - loss avoided.
• Reliance Damages: Costs incurred in reliance on the contract, awarded when expectation damages are too speculative.
• Consequential Damages: Foreseeable losses resulting from the breach.
• Must be foreseeable by the breaching party at contract formation.
• UCC: Limited to those that couldn't be reasonably prevented by cover or otherwise.
• Exclusion of consequential damages for personal injury in consumer goods is prima facie unconscionable, but exclusion for other commercial damages is allowed.
• Incidental Damages: Costs incurred in dealing with the breach (e.g., storage, transportation).
• Liquidated Damages: Predetermined damages for breach, enforceable if they are a reasonable estimate and not a penalty.
• UCC: Expressly authorized.
• Nominal Damages: Awarded when there's no real loss.
• Restitution: Prevents unjust enrichment of the defendant.
• Available even if there's no contract (quasi-contract).
• May be awarded to the breaching party.
• UCC Remedies
• Buyer's Remedies for Seller's Breach:
• Cancellation: Available if the breach is of the whole contract or for installment contracts.
• Recovery of Payments: Upon cancellation, the buyer can recover payments made; on rejection or revocation of acceptance, the buyer gets a security interest in possessed goods.
• Damages: Market price minus contract price plus incidentals and consequentials.
• Cover: Buyer can buy substitute goods and recover the difference between the cover price and contract price.
• Specific Performance: Available when goods are unique or in other proper circumstances (e.g., requirements and output contracts).
• Seller's Remedies for Buyer's Breach:
• Right to Identify Goods: Seller can identify goods to the contract and resell them.
• Right to Complete Manufacture: Even if it's commercially unreasonable, the seller can finish making the goods and recover the contract price.
• Right to Scrap: If the goods are unfinished, the seller can scrap them and recover the difference between the contract price and the scrap value.
• Right to Stop Delivery: If the buyer is insolvent or breaches, the seller can stop delivery.
• Damages:
• If the buyer has the goods, the seller gets the contract price.
• If the seller has the goods, the seller gets the difference between the contract price and the market/resale price plus incidentals minus expenses saved.
• Lost Volume Seller: Gets lost profits plus incidentals. This applies when there's an unlimited supply of the product.
• Equitable Remedies
• Specific Performance: Compels a party to perform.
• Available when the legal remedy is inadequate.
• Usually granted for unique goods and land contracts.
• Not available for personal service contracts or those needing ongoing cooperation.
• UCC: Uniqueness requirement can be met by showing an inability to find reasonable substitutes; specific performance is allowed in output and requirements contracts.
• Rescission: Cancels the contract.
• Reformation: Corrects a mistake in the contract.
• Duty to Mitigate Damages: Applies to all contracts.
• Wrongfully discharged employees must make reasonable efforts to find comparable work.
• Sellers must resell goods in a commercially reasonable manner.
• Buyers must try to cover.

VI. Third-Party Rights

• Third-Party Beneficiaries: A contract where one party (promisor) must perform for a third party (beneficiary).
• Intended Beneficiaries: Have the right to sue.
• Must either:
• Receive performance directly
• Be expressly designated in the contract
• Have a relationship with the promisee implying intent to benefit
• Incidental Beneficiaries: Cannot sue.
• Vesting of Rights: Occurs when the beneficiary:
• Detrimentally relies on the rights
• Manifests assent at a party's request
• Sues to enforce the contract
• Promisor's Defenses: Can raise any defense they had against the original promisee.
• Assignments: Transfer of rights under a contract.
• Generally allowed unless it materially increases the duty or risk of the obligor or reduces their chance of getting performance.
• Clauses prohibiting "assignment of the contract" usually only bar delegation of duties, not assignment of rights.
• Delegations: Transfer of duties under a contract.
• Not allowed for duties involving personal skill or judgment.
• Generally valid even without an express promise to perform by the delegatee.

 

Criminal Law & Procedure Outline

I. HOMICIDE

A. INTENDED KILLINGS

1. Premeditation, Deliberation

• First-degree murder includes intent-to-kill murder committed with premeditation and deliberation.
• Premeditation can occur in a short amount of time. It is when a person has made a plan or scheme to kill another.
• Deliberation is the decision to kill in a cool and dispassionate manner.
• On the MBE, anything that indicates a plan or scheme to deliberately kill another is a good indication of premeditation and deliberation. For example: poisoning, torture, bombs, or lying in wait.
• Intoxication can mitigate murder from the first degree to the second degree.
• Example: A hates his coworker and wants to kill him. He learns the coworker will be at a neighbor's house, so he goes there with a gun, hoping to provoke his coworker into attacking him so that he has an excuse to shoot him. He insults the coworker, enraging him. The coworker grabs a knife and runs toward A. A shoots and kills the coworker. A is guilty of first-degree murder because he committed the killing willfully with premeditation and deliberation.

2. Provocation

• Voluntary manslaughter is an intentional killing that would otherwise be murder, but for the existence of adequate provocation.
• Adequate Provocation is provocation that would lead a reasonable person to lose self-control. Rage is hot.
• Example: The defendant finds his wife in bed with another man, or the defendant is punched in the face and is enraged by it.
• Mere words are not adequate provocation under the majority view.

B. UNINTENDED KILLINGS

1. Intent to Injure

• Malice aforethought for common law murder can be shown by a defendant's intent to inflict great bodily injury.
• Example: D struck V in the face with a baseball bat, intending to inflict serious injury. V died after three days in the hospital. Even though D only intended to injure V, he can be convicted of murder.

2. Reckless and Negligent Killings

• Involuntary manslaughter is the unintentional killing of a human being in a criminally reckless manner.
• Criminal Recklessness is consciously disregarding a substantial and unjustifiable risk resulting from the actor’s conduct.
• Depraved-heart murder occurs when a person is reckless and indifferent to an unjustifiably high risk to human life. This can also be called extreme negligence.
• Example: D, angered after losing his job, goes to his former workplace and fires shotgun rounds into the air. He did not intend to kill anyone but only wanted to frighten people. One of the bullets ricocheted and killed his best friend. D is guilty of depraved-heart murder because, even though he did not intend to kill, his conduct created a high risk of death.
• Another example: Defendant became intoxicated and drove away. Craving another drink, he stopped his car, broke the window of a liquor store, and reached for a bottle. When the night watchman arrived, the defendant struck and killed him with the bottle. The defendant is guilty of depraved-heart murder for the watchman's death because he acted recklessly.

3. Felony Murder

• Felony murder is an unintended and foreseeable killing proximately caused by and during the commission or attempted commission of an inherently dangerous felony.
• Inherently dangerous felonies are typically BARRK: Burglary, Arson, Rape, Robbery, and Kidnapping.
• First-degree felony murder is a killing proximately caused during the commission or attempt of an enumerated or inherently dangerous felony.
• Second-degree felony murder is where the felony is not BARRK.
• Felony murder is a strict liability crime.
• The death must be a foreseeable outgrowth of the felony.
• The death must be a result of injuries inflicted during the commission, attempt, or immediate flight from the felony.
• Example: Defendant was robbing a store when his accomplice accidentally shot and killed the store clerk. Defendant is guilty of felony murder because the killing occurred during the commission of an inherently dangerous felony.
• Another example: D, while committing a burglary, caused the death of a bystander. D is guilty of felony murder.
• Merger Doctrine: The underlying felony must be independent of the killing.
• Example: Manslaughter is a lesser-included offense of murder and has many of the same elements as murder, so it will merge into the murder offense if used as the underlying felony for felony murder.
• Agency Theory: The felon or his agent (co-felon) must cause the death.
• Proximate Cause Theory: The felon is liable so long as he "sets in motion" the acts that result in death.
• A majority of jurisdictions limit felony murder liability to killings committed by a co-felon.
• A large minority of jurisdictions allow an affirmative defense for nonviolent co-felons if they were unarmed, unaware that violence would occur, and did not encourage the violence.
• There is no flat prohibition against the death penalty for felony murder. The death penalty may be imposed on someone who was a major participant in the underlying felony and acted with reckless indifference to human life.

4. Misdemeanor Manslaughter

• Misdemeanor manslaughter (minority rule) is an unintentional killing that occurs during the commission or attempt of a misdemeanor or a non-BARRK felony.
• The misdemeanor must be malum in se.
• Example: Defendant was driving while intoxicated when he hit and killed a pedestrian. Defendant is guilty of misdemeanor manslaughter.

II. OTHER CRIMES

A. THEFT AND RECEIVING STOLEN GOODS

• Larceny is the trespassory taking and carrying away of personal property of another with intent to permanently deprive them of it. The defendant must use force or the victim must feel fear. The intent to steal must be present at the time of the taking.
• Example: D took and carried away a photocopy of an etching from a museum. This was personal property of the museum, and it was taken with the intent to steal it. D is guilty of larceny.
• Larceny by trick occurs when D intentionally makes a false representation of a material past or existing fact to obtain custody (but not title) of personal property of another. To determine if it's larceny by trick or false pretenses, look at what the victim intended to do when they handed over the property. If they handed it over and never intended to get it back, it's false pretenses. Otherwise, it is larceny by trick.
• Embezzlement occurs when the fraudulent conversion or misappropriation of property of another by one who is already in lawful possession of that property.
• False pretenses is the same as larceny by trick, except D obtains title to the property with the intent to defraud.
• Receiving stolen property is when the defendant receives stolen property knowing it was stolen with the intent to permanently deprive the owner of the property.

B. ROBBERY

• Robbery is larceny from the person or presence of the victim by force or intimidation.
• The force or threat of force must be used to gain possession of the property. If the victim is not afraid and no force is used, the defendant cannot be liable for robbery.
• Example: A homeless man intimidated a woman by telling her he had a gun in his pocket and demanded her purse. Although he did not actually have a gun, he is guilty of robbery because he used intimidation to take the purse.

C. BURGLARY

• Burglary is the breaking and entering the dwelling of another at night with the intent to commit a felony or larceny.
• The intent to commit a felony must be present at the time of the breaking and entering.
• Example: D entered a museum lawfully with the intent to commit a crime. He did not commit burglary because his entrance was lawful.

D. ASSAULT AND BATTERY

• Assault can be either an attempted battery or the intentional infliction of apprehension of imminent bodily harm. The victim does not need to be aware of the attempt.
• Battery is the unlawful application of force to another resulting in bodily injury or offensive touching.
• Mayhem is a common-law felony battery that causes the dismemberment or permanent disfigurement of a person.

E. RAPE; STATUTORY RAPE

• Rape is unlawful sexual intercourse without consent using force or threat of force.
• Statutory rape is sexual intercourse with a minor. It is a strict liability crime, so mistake of fact is not a defense.

F. KIDNAPPING

• Kidnapping is the unlawful confinement or restraint that involves moving or hiding the victim.

G. ARSON

• Arson is the malicious burning of the dwelling of another. It requires a reckless disregard for an obvious or high risk that the structure would burn.
• Malice is proven by showing a reckless disregard for an obvious or high risk that the structure would burn.
• The burning must be of the dwelling house of another.
• Example: D burglarized a jewelry store. As he entered, he short-circuited the store's burglar alarm system. The smoldering wires eventually caused a fire that destroyed the store. D is not guilty of arson because the burning was not obvious or foreseeable.

H. POSSESSION OFFENSES

• The defendant exercises dominion and control over a prohibited object or substance.
• Example: Possession of illegal drugs.

III. INCHOATE CRIMES; PARTIES

A. INCHOATE OFFENSES

1. Attempts

• Attempt is an act done with the intent to commit a crime where the act falls short of the full commission of the crime.
• The defendant must have the specific intent to complete the crime and take action that goes beyond mere preparation.
• Dangerous-Proximity Test: The defendant’s actions are dangerously close to completing the crime.
• Unequivocal Test: The defendant’s actions unequivocally or unquestionably show an intent to commit the crime.
• Substantial-Step Test: Requires a major step or action beyond mere preparatory steps.
• Example: A woman promised to pay a hit man to kill her neighbor. The hit man bought a gun and watched the neighbor's house for an opportunity to shoot him. The neighbor tripped, fell, and hit his head, dying immediately. The hit man, believing the neighbor was unconscious, shot him twice in the chest. The woman is guilty of attempted murder because she hired the hit man with the intent to murder her neighbor.

2. Conspiracy

• Conspiracy is an agreement between two or more people to commit an unlawful act or achieve a lawful goal by unlawful means.
• The defendants must have the specific intent to commit the unlawful act.
• The parties must agree on the essential objectives of the conspiracy.
• Example: Four men are charged with conspiracy to commit a series of bank robberies. The robbers wore masks and gloves and stole the bank surveillance tapes. There was circumstantial evidence that tied each man to the conspiracy. During cross-examination, a witness testified that one defendant was in jail during six of the robberies. This defendant is not entitled to an acquittal because a conspirator need not be present at the commission of each crime.
• Overt Act: At common law, an overt act in furtherance of the conspiracy was not required. Most states now require an overt act.
• Under the common law, a conspiracy requires a plurality of agreement. In other words, two or more people must actually agree to commit the crime. For example, a person cannot be guilty of conspiring with an undercover police officer or with someone who intends to report the crime to the police.
• Liability for Co-Conspirator Crimes: A conspirator is liable for the crimes of co-conspirators if: 1) the crimes were committed in furtherance of the objectives of the conspiracy and 2) the crimes were foreseeable.
• Withdrawal: A conspirator can withdraw from a conspiracy by performing an affirmative act that notifies all members of the conspiracy of their intent to withdraw. The withdrawal must be communicated in time for the co-conspirators to abandon their plans. Even if a withdrawal is effective, the conspirator is still liable for the conspiracy itself and any crimes committed in furtherance of the conspiracy prior to their withdrawal.

3. Solicitation

• Solicitation is inciting, counseling, advising, urging, or commanding another to commit a crime with the intent that the person solicited commit the crime.
• The crime of solicitation is complete when the solicitation is made. It does not matter if the person solicited agrees to commit the crime or if the crime is actually carried out.
• Example: A asks B to kill C. Even if B refuses, A is still guilty of solicitation.

B. PARTIES TO CRIME

• Accomplice liability is not a separate crime. It is a way to hold people liable for a crime when they assisted the principal in committing the crime.
• Principals are those who commit the actus reus of the crime.
• Principal in the first degree: The person who actually commits the crime.
• Example: A commands B to kill C. B kills C using a revolver. B is the principal in the first degree.
• Principal in the second degree: A person who is present at the crime and aids and abets in its commission, but does not take part in the actual commission of the crime.
• Example: A and B decide to rob a store. A waits outside as a lookout while B robs the store. A is a principal in the second degree.
• Accomplices: People who aid a principal in perpetrating a crime by conduct such as planning, participation, or evasion of apprehension. The accomplice must have intended to aid the principal and intended that the crime be committed.
• Example: A drives B to the bank, knowing that B plans to rob it. A waits outside and drives B away after the robbery. A is an accomplice to robbery.
• Accessories:
• Accessory before the fact: A person who aids, abets, counsels, or commands the principal in the commission of the crime, but is not present at the crime.
• Accessory after the fact: A person who, with knowledge that a felony has been committed, helps the principal or an accomplice avoid arrest or conviction.
• Mens Rea: The majority rule is that an accomplice must act with the purpose of promoting or facilitating the commission of the offense. The minority rule is that an accomplice is liable if he intentionally or knowingly aids or causes another person to commit an offense.
• Actus Reus: An accomplice must provide some assistance or encouragement to the principal. Mere presence at the scene of a crime is not enough to make someone an accomplice.
• Example: Nine gang members were charged with the murder of another gang member. The gang leader pleaded guilty. The gang leader announced a party, intending to kill the other gang member there, but he did not tell anyone about the plan. At the party, after everyone was intoxicated, the gang leader stabbed and killed the other gang member. The other eight gang members watched and did nothing. They are not guilty of murder because they took no affirmative act and were merely present at the scene.
• Natural and Probable Consequences Doctrine: An accomplice is liable for the natural and probable consequences of the principal's acts, even if the accomplice did not intend for those consequences to occur.
• Innocent Instrumentality Rule: If a person uses an innocent person to commit a crime, the person using the instrumentality is considered the principal.
• Example: A tells B to deliver a package to C. A knows that the package contains a bomb, but B does not. The bomb explodes, killing C. A is the principal and B is an innocent instrumentality.

IV. General Principles

A. Acts and Omissions

1. Actus Reus - A voluntary act or omission that causes a social harm.
• Voluntary Act: A physical and voluntary act. Unconscious acts, acts while asleep or under hypnosis are not voluntary.
• Omission (Failure to Act): A failure to act when there is a legal duty to do so. A legal duty exists when:
• A statute requires action.
• The relationship between the defendant and victim imposes a duty (e.g., parent-child, spouse-spouse).
• A contract obligates the defendant to act (e.g., a lifeguard).
• The defendant voluntarily assumes a duty and prevents others from helping.
• The defendant created the risk of harm.
• Moral Duty: A moral duty alone is not enough to create a legal duty to act.

B. State of Mind (Mens Rea)

1. Required Mental State - The mental state the defendant must have had at the time of the crime to be guilty of the offense.
• Common Law Mental States:
• Strict Liability: No mens rea is required. The act itself is enough for guilt.
• General Intent: An awareness of all factors constituting the crime. Generally, the intent to perform the act.
• Specific Intent: The intent to commit the criminal act and the intent to achieve a specific result.
• Malice: Acting intentionally or with reckless disregard of an obvious or known risk.
• Transferred Intent: Intent to harm one person is transferred to the person actually harmed.
• Model Penal Code (MPC) Mental States:
• Purposely: Conscious object to engage in conduct or cause a result.
• Knowingly: Aware that conduct is of a certain nature or that a result is practically certain to occur.
• Recklessly: Consciously disregarding a substantial and unjustifiable risk.
• Negligently: Should be aware of a substantial and unjustifiable risk.
2. Strict Liability - Crimes where no mens rea is required. The act itself is enough for guilt.
• Examples: Statutory rape, selling alcohol to minors.
3. Mistake of Fact or Law - A mistake that negates the required mens rea.
• Mistake of Fact:
• Specific Intent Crimes: Any mistake (reasonable or unreasonable) can be a defense.
• General Intent Crimes: Only a reasonable mistake is a defense.
• Strict Liability Crimes: Mistake of fact is not a defense.
• Mistake of Law: Generally, not a defense, even if relying on advice from a lawyer. Limited exceptions exist.

C. Responsibility

1. Mental Disorder (Insanity) - A legal defense based on the defendant's mental state at the time of the crime. The defendant has the burden of raising this defense.
• Tests for Insanity:
• M'Naghten Rule: Due to mental disease or defect, the defendant did not know the nature and quality of the act or did not know it was wrong.
• Irresistible Impulse Test: Due to mental disease or defect, the defendant could not control their actions.
• Durham Test (New Hampshire): The crime was the product of the defendant's mental disease or defect.
• MPC Test: Due to mental disease or defect, the defendant lacked substantial capacity to appreciate the wrongfulness of their conduct or conform their conduct to the law.
2. Intoxication - Can negate the mens rea for some crimes.
• Voluntary Intoxication: Only a defense to specific intent crimes if it negates the specific intent.
• Involuntary Intoxication: Treated like insanity and can be a defense to both specific and general intent crimes.

D. Causation

1. Actual Cause ("But-For" Causation): The defendant's conduct must be the cause-in-fact of the harm. The harm would not have occurred but for the defendant's conduct.
2. Proximate Cause (Legal Cause): The harm must be a foreseeable result of the defendant's conduct.
3. Intervening Actions: Can break the chain of causation if they are unforeseeable and supersede the defendant's conduct as the cause of the harm.

E. Justification and Excuse

• Justification: The defendant's conduct, while technically criminal, is justified under the circumstances.
• Self-Defense: Using force to protect oneself from imminent unlawful force.
• Reasonable Belief: The defendant must reasonably believe that force is necessary.
• Proportionality: The force used must be proportional to the threat faced.
• Duty to Retreat: In some jurisdictions, a duty to retreat before using deadly force, unless in one's own home.
• Defense of Others: Using force to protect another person from imminent unlawful force. Similar requirements to self-defense.
• Defense of Property: Using force to protect one's property. Generally, deadly force is not allowed.
• Necessity: Choosing to commit a crime to prevent a greater harm.
• Reasonable Belief: Defendant must reasonably believe that their conduct is necessary to prevent a greater harm.
• Not at Fault: Defendant must not be at fault in creating the situation that required the necessity.
• Excuse: The defendant is not morally blameworthy for their conduct.
• Duress: Being forced to commit a crime under threat of death or serious bodily injury.
• Imminent Threat: The threat must be imminent.
• No Escape: There must be no reasonable opportunity to escape.
• Not Applicable to Murder: Duress is not a defense to murder.
• Entrapment: Induced by law enforcement to commit a crime they were not predisposed to commit.
• Inducement: Government must induce the defendant to commit the crime.
• Predisposition: Defendant must not be predisposed to commit the crime.

F. Jurisdiction

• Jurisdiction is the power of a court to hear a case.
• Subject Matter Jurisdiction: The court must have the power to hear the type of case.
• Personal Jurisdiction: The court must have power over the defendant.
• Venue: The case must be brought in the proper geographic location.

V. Constitutional Protection of Accused Persons

A. Arrest, Search and Seizure

1. Fourth Amendment Protection: Protects against unreasonable searches and seizures. Evidence obtained in violation of the Fourth Amendment is excluded from trial.
• Government Conduct: The Fourth Amendment only applies to government actors, not private citizens.
• Search: A government intrusion into a place where a person has a reasonable expectation of privacy.
• Seizure: A meaningful interference with a person's possessory interest in property or liberty.
2. Warrant Requirement: Generally, a warrant is required for a search or seizure to be reasonable.
• Probable Cause: A warrant must be supported by probable cause, meaning there is a fair probability that contraband or evidence of a crime will be found in the place to be searched.
• Neutral and Detached Magistrate: A warrant must be issued by a neutral and detached magistrate.
• Particularity: A warrant must describe with particularity the place to be searched and the things to be seized.
3. Exceptions to the Warrant Requirement:
• Exigent Circumstances: A warrantless search is allowed if there is an immediate danger to life or property, or a risk of evidence being destroyed.
• Search Incident to Lawful Arrest: A warrantless search of a person and the area within their immediate control is allowed during a lawful arrest.
• Consent: A warrantless search is allowed if the person with authority over the place to be searched consents.
• Plain View: A warrantless seizure is allowed if the officer is lawfully present in a place and the contraband or evidence is in plain view.
• Automobile Exception: A warrantless search of a vehicle is allowed if there is probable cause to believe it contains contraband or evidence.
• Inventory Search: A warrantless search of an impounded vehicle is allowed for inventory purposes.
• Stop and Frisk (Terry Stop): A brief investigatory detention and pat-down for weapons is allowed if there is reasonable suspicion of criminal activity.
• Border Searches: Warrantless searches are allowed at borders.

B. Confessions and the Privilege Against Self-Incrimination

1. Fifth Amendment Privilege: Protects against compelled self-incrimination.
• Testimonial Evidence: Only applies to testimonial evidence, not physical evidence.
• Miranda Rights: Before custodial interrogation, suspects must be informed of their right to remain silent, their right to counsel, and that anything they say can be used against them.
• Custody: A person is in custody if they are not free to leave.
• Interrogation: Questioning or any words or actions by police that are reasonably likely to elicit an incriminating response.
• Waiver: A suspect can waive their Miranda rights, but the waiver must be knowing, intelligent, and voluntary.
• Invocation: A suspect can invoke their right to remain silent or their right to counsel. The invocation must be clear and unequivocal.
• Exclusionary Rule: Confessions obtained in violation of the Fifth Amendment are excluded from trial.
• Impeachment Exception: Confessions obtained in violation of Miranda can be used for impeachment purposes.
• Fruit of the Poisonous Tree: Evidence derived from a coerced confession is also inadmissible.
• Immunity: The government can compel testimony by granting immunity.
• Use Immunity: Testimony cannot be used against the witness.
• Transactional Immunity: Witness cannot be prosecuted for any crimes related to the transaction about which they testify.

C. Lineups and Other Forms of Identification

1. Sixth Amendment Right to Counsel: Applies to post-indictment lineups and show-ups.
2. Due Process: Applies to all identification procedures.
• Reliability: The identification procedure must be reliable.
• Suggestiveness: Suggestive procedures that create a substantial likelihood of misidentification violate due process.

D. Right to Counsel

1. Sixth Amendment Right to Counsel: Guarantees the right to counsel at all critical stages of a criminal proceeding.
• Critical Stages: Include custodial interrogations, post-indictment lineups, preliminary hearings, arraignments, felony trials, sentencing, and appeals as a matter of right.
• Waiver: The right to counsel can be waived, but the waiver must be knowing, intelligent, and voluntary.
2. Effective Assistance of Counsel: The Sixth Amendment guarantees the right to effective assistance of counsel.
• Strickland Test: To prove ineffective assistance of counsel, the defendant must show:
• Counsel's performance was deficient.
• The deficient performance prejudiced the defense.

E. Fair Trial and Guilty Pleas

1. Fair Trial: The Sixth Amendment guarantees the right to a fair trial.
• Impartial Jury: The right to a trial by an impartial jury.
• Jury Selection: Jurors must be selected from a fair cross-section of the community.
• Challenges for Cause: Jurors can be struck for cause if they are biased or otherwise unqualified.
• Peremptory Challenges: Jurors can be struck without cause, but not based on race, ethnicity, or gender.
• Speedy Trial: The right to a speedy trial.
• Public Trial: The right to a public trial.
• Confrontation Clause: The right to confront witnesses against the defendant.
• Compulsory Process: The right to compel witnesses to testify for the defendant.
• Proof Beyond a Reasonable Doubt: The prosecution must prove all elements of the crime beyond a reasonable doubt.
2. Guilty Pleas: A defendant can waive their right to a trial and plead guilty.
• Knowing, Intelligent, and Voluntary: The plea must be knowing, intelligent, and voluntary.
• Plea Colloquy: The judge must personally ensure the defendant understands the nature of the charges, the rights they are waiving, and the consequences of the plea.
• Factual Basis: There must be a factual basis for the plea.
• Withdrawal of Plea: A defendant may be able to withdraw a guilty plea under certain circumstances.

F. Double Jeopardy

1. Fifth Amendment Protection: Protects against being tried twice for the same offense.
• Attachment of Jeopardy: Jeopardy attaches when the jury is sworn in or, in a bench trial, when the first witness is sworn in.
• Same Offense: The Blockburger test is used to determine if two offenses are the same for double jeopardy purposes.
• Exceptions: Retrial is allowed if:
• The first trial ended in a hung jury.
• The defendant successfully appealed the conviction.
• The defendant breached a plea agreement.
• Dual Sovereignty Doctrine: A defendant can be tried for the same offense by both the state and federal governments.

G. Cruel and Unusual Punishment

1. Eighth Amendment Protection: Prohibits cruel and unusual punishment.
• Proportionality: The punishment must be proportionate to the crime.
• Death Penalty: Special considerations apply to the death penalty, including the requirement of individualized sentencing and consideration of mitigating factors.

H. Burdens of Proof and Persuasion

1. Burden of Proof: The obligation to prove a fact.
• Prosecution's Burden: The prosecution has the burden of proving all elements of the crime beyond a reasonable doubt.
• Defendant's Burden: The defendant may have the burden of proving an affirmative defense.
2. Burden of Persuasion: The obligation to convince the fact finder.

I. Appeal and Error

1. Preservation of Error: To appeal an issue, the defendant must have preserved the error by objecting at trial.
2. Plain Error: An error that affects the defendant's substantial rights may be reviewed even if not preserved.
3. Harmless Error: An error that does not affect the outcome of the trial will not result in reversal.
4. Standards of Review: Appellate courts apply different standards of review depending on the type of error.

Evidence Outline

I. Presentation of Evidence

A. Applicability of the Federal Rules of Evidence (FRE)

• The FRE apply to federal court proceedings, including civil and criminal trials, bankruptcy, and Court of Federal Claims cases.
• Exceptions: grand jury proceedings, preliminary hearings, warrant applications, bail, sentencing, probation, and summary contempt.
• Also excluded are preliminary questions of fact determined by the judge (e.g., witness competency).

B. Introduction of Evidence

1. Personal Knowledge: Witnesses must have personal knowledge of the subject matter.
2. Refreshing Recollection: If a witness's memory fails, a document can be used to refresh it. The witness cannot read from the document while testifying. The opposing party has the right to inspect the document, cross-examine the witness about it, and introduce relevant portions into evidence. Pretrial review of documents to refresh recollection is generally not discoverable, but the judge has discretion to order production.
3. Objections and Offers of Proof:
• Objections must be timely and specific to preserve the issue for appeal. A general objection ("I object") is insufficient.
• Offers of proof are required when evidence is excluded to explain its substance, relevance, and admissibility for appeal unless apparent from the context.
4. Lay Opinions: Lay witnesses can offer opinions based on their perceptions that are helpful to the jury and not based on scientific, technical, or specialized knowledge. This differs from the stricter common law rule.
5. Competency of Witnesses: Everyone is presumed competent. Grounds for impeachment, not competency, address witness credibility. State law governs competency in diversity cases. Judges and jurors are generally incompetent to testify in the same trial.
6. Judicial Notice: A court may take judicial notice of indisputable facts that are generally known or readily verifiable. The judge decides admissibility. The jury determines authentication and credibility.
7. Mode and Order: Cross-examination is limited to the scope of direct examination and credibility. Leading questions are generally allowed on cross and limited on direct. Courts control the mode and order of presenting evidence.
8. Exclusion of Witnesses: Upon request, the court must exclude witnesses so they cannot hear other testimony. Exceptions include natural person parties, representatives of non-natural persons, essential persons, and those statutorily permitted (e.g., victims).
9. Impeachment: Any party can impeach a witness, even their own. Impeachment can be through bias, prior inconsistent statements, or character for truthfulness (reputation or opinion). Specific instances of conduct are generally only allowed on cross-examination. Prior convictions involving dishonesty are always admissible, while felonies not involving dishonesty are subject to balancing and a 10-year limit.
10. Burdens of Proof: The plaintiff in civil cases and the prosecution in criminal cases have the burden of proof (persuasion). This involves burdens of production (establishing a prima facie case) and persuasion (convincing the trier of fact). Civil cases generally use a preponderance of the evidence standard, while criminal cases require proof beyond a reasonable doubt. Presumptions shift the burden of production.

II. Relevancy and Reasons for Excluding Relevant Evidence

A. General Considerations

1. Definition: Evidence is relevant if it makes a fact of consequence more or less probable. It must be both probative (tending to prove something) and material (related to a fact of consequence).
2. Direct vs. Circumstantial Evidence: Direct evidence proves a fact directly, while circumstantial evidence requires an inference. Both are admissible.
3. FRE 403 Balancing Test: Relevant evidence can be excluded if its probative value is substantially outweighed by:
• Unfair prejudice
• Confusing the issues
• Misleading the jury
• Undue delay
• Wasting time
• Needlessly presenting cumulative evidence
4. Conditional Relevance: Evidence whose relevance depends on another fact can be admitted conditionally, subject to later proof of the other fact.
5. Curative Admission: Inadmissible evidence can sometimes be admitted to rebut other inadmissible evidence, preventing unfair prejudice.
6. Rule of Completeness: If part of a writing or recorded statement is introduced, the adverse party can require the introduction of any other part that should be considered at the same time.

B. Specific Applications of Relevance Rules

1. Character Evidence:
• Generally inadmissible to prove conformity with character.
• Exceptions in criminal cases: defendant can offer evidence of their pertinent trait; prosecution can rebut. If defendant offers victim's character evidence, prosecution can offer defendant's same trait. In homicide cases, prosecution can offer victim's peacefulness if defendant claims self-defense.
• Methods of proving character: reputation or opinion. On cross-examination, specific instances can be inquired into.
• In civil cases, character evidence is generally inadmissible except when character is an essential element (e.g., defamation).
2. Habit Evidence: Evidence of a person's habit or an organization's routine practice is admissible to prove conduct in conformity with the habit. Look for words like "always," "automatically," "regularly," not "usually," "often," "frequently."
3. Prior Bad Acts (Other Crimes, Wrongs, or Acts): Generally inadmissible to prove character. Admissible for other purposes (MIMIC), such as motive, intent, absence of mistake, identity, or common plan. In sexual assault cases, evidence of prior sexual assaults is admissible.
4. Subsequent Remedial Measures: Inadmissible to prove negligence, culpable conduct, product defect, or need for warning. Admissible for other purposes, such as proving ownership, control, or feasibility of precaution if disputed.
5. Compromise Offers and Negotiations: Evidence of offers to compromise or statements made during negotiations is inadmissible to prove or disprove a disputed claim or impeach by prior inconsistent statement. May be admissible to show bias, prejudice, or other relevant facts not dealing with liability.
6. Payment of Medical and Similar Expenses: Offers to pay medical, hospital, or similar expenses are inadmissible to prove liability. Accompanying admissions of fact are admissible.
7. Plea Discussions and Related Statements: Inadmissible against the defendant who made the plea or participated in discussions.
8. Liability Insurance: Inadmissible to prove negligence or wrongful conduct. Admissible to show agency, ownership, control, or witness bias/prejudice.
9. Authentication and Identification: Evidence must be authenticated, meaning the proponent must show it is what they claim. Methods include testimony, distinctive characteristics, chain of custody, and self-authentication. Certain documents are self-authenticating. The jury decides ultimate authenticity.
10. Best Evidence Rule: Original documents must be used to prove content when content is at issue. Duplicates usually admissible, but not handwritten copies. Exceptions include when the original is unavailable through no fault of the proponent. Summaries allowed for voluminous records if originals made available.

III. Privileges

A. General Principles

• Privileges protect confidential communications from disclosure in court. The holder of the privilege can prevent disclosure and waive the privilege.
• Federal courts recognize several privileges: attorney-client, spousal, psychotherapist-patient, and clergy-penitent.
• Most states also recognize a physician-patient privilege, but this is not recognized under federal law.
• Privilege issues often arise in discovery disputes, as well as at trial.

B. Attorney-Client Privilege

1. Elements:
• Confidential communication: The communication must be intended to be confidential and not made in the presence of unnecessary third parties.
• Between an attorney and client (or their representatives): This includes prospective clients.
• For the purpose of seeking or providing legal advice.
2. Exceptions:
• Communications in furtherance of a future crime or fraud.
• Disputes between the attorney and client.
• Disputes among multiple clients who shared the same attorney.
• Wills contests involving communications with the attorney who drafted the will.

C. Spousal Privileges

1. Spousal Immunity (Testimonial Privilege):
• Applies only in criminal cases.
• Held by the witness-spouse, who can choose whether to testify against their spouse.
• Requires a valid marriage at the time of trial.
• Does not apply in cases of domestic violence or incest against family members.
2. Confidential Marital Communications Privilege:
• Applies in both civil and criminal cases.
• Held by both spouses.
• Protects confidential communications made during the marriage.
• Survives the termination of the marriage.

D. Psychotherapist-Patient Privilege

• Protects confidential communications between a patient and a psychotherapist for the purpose of diagnosis or treatment.
• Recognized in federal courts.

E. Clergy-Penitent Privilege

• Protects confidential communications made to a clergy member in a spiritual context.

F. Work Product Doctrine

1. Definition: Protects materials prepared by an attorney (or their representatives) in anticipation of litigation from discovery.
2. Types:
• Qualified Work Product: Discoverable upon a showing of substantial need and undue hardship.
• Absolute Work Product (Mental Impressions): Never discoverable, as it reflects the attorney's strategic thinking. This includes the attorney's thoughts, legal theories, opinions, and recollections of witness statements.

G. Waiver of Privilege

• Privileges can be waived by voluntary disclosure of the privileged information.
• Inadvertent disclosure may constitute a waiver if the privilege holder failed to take reasonable steps to prevent the disclosure or rectify the error.

IV. Other Policy Exclusions

These rules exclude certain types of evidence for policy reasons, even if relevant.

A. Subsequent Remedial Measures

• Rule: Evidence of measures taken after an injury or harm to prevent future harm is inadmissible to prove negligence, culpable conduct, product defect, or a need for a warning.
• Rationale: Encourage remedial measures to improve safety.
• Exceptions: Admissible to prove ownership, control, or the feasibility of a precaution if disputed.

B. Compromise Offers and Negotiations

• Rule: Evidence of offers to compromise or statements made during settlement negotiations is inadmissible to prove liability or the amount of a claim.
• Rationale: Encourage settlements.
• Exceptions: Admissible to prove bias, prejudice, or other issues besides liability.

C. Payment of Medical and Similar Expenses

• Rule: Evidence of offers to pay medical, hospital, or similar expenses is inadmissible to prove liability.
• Rationale: Encourage humanitarian gestures.
• Distinguish: Accompanying admissions of fact are admissible.

D. Plea Discussions and Related Statements

• Rule: Statements made during plea discussions are generally inadmissible against the defendant who made the plea or participated in the discussions.

E. Liability Insurance

• Rule: Evidence of liability insurance is inadmissible to prove negligence or wrongful conduct.
• Rationale: Prevent jury prejudice.
• Exceptions: Admissible to prove agency, ownership, control, or witness bias/prejudice.

V. Writings, Recordings, and Photographs

This section addresses the rules governing the admissibility of writings, recordings, and photographs.

A. Best Evidence Rule (Original Document Rule)

1. Purpose: To ensure the accuracy and reliability of evidence presented to prove the contents of a writing, recording, or photograph.
2. Rule: When seeking to prove the content of a writing, recording, or photograph, the original must be produced unless it is unavailable through no fault of the proponent.
3. Applicability: The rule applies when the content of the writing, recording, or photograph is at issue. Examples include contracts, wills, deeds, or when a witness relies on the content of a document to testify.
4. Duplicates: Duplicates are generally admissible to the same extent as originals, unless there is a question about the authenticity of the original or fairness requires the original. This includes photocopies, but not handwritten copies.
5. Exceptions (When Originals Are Not Required):
• Lost or destroyed originals (not in bad faith).
• Original unobtainable by judicial process.
• Opponent has the original and fails to produce it after notice.
• Content is not closely related to a controlling issue (collateral matter).
• Admission by a party opponent of the content.

B. Summaries

• Rule: Summaries of voluminous writings, recordings, or photographs are admissible if the originals or duplicates are made available to the other party.
• Requirements: The summary must accurately reflect the underlying evidence, and a witness familiar with both the evidence and the summary must testify to its accuracy.

C. Authentication

1. Requirement: All evidence must be authenticated, meaning the proponent must establish that it is what it is claimed to be.
2. Methods:
• Witness testimony with personal knowledge.
• Distinctive characteristics.
• Chain of custody.
• Self-authentication.
3. Photographs: Anyone with personal knowledge of the scene can authenticate a photograph.

D. Public Records

• Copies of public records are admissible if they are certified as correct or a witness testifies to their accuracy.

E. Learned Treatises

• Rule: Statements from learned treatises can be read into evidence if established as reliable authority by an expert witness or judicial notice.
• Limitations: The treatise itself cannot be admitted as an exhibit, only statements read into evidence.

F. Refreshing Recollection vs. Past Recollection Recorded

1. Refreshing Recollection: When a witness's memory fails, a document can be used to refresh it. The document is not evidence; the witness's refreshed testimony is.
2. Past Recollection Recorded: A record of a witness's past knowledge can be read into evidence if the witness has insufficient memory to testify, and the record meets specific requirements. The record itself is not admitted as an exhibit unless offered by the adverse party.

I. Hearsay: Definition and Rationale

A. Definition

Hearsay is defined as: (1) an out-of-court statement; (2) offered for the truth of the matter asserted. This seemingly simple definition is deceptively complex.

• "Statement": Any oral assertion, written assertion, or nonverbal conduct intended as an assertion. This includes texts, emails, gestures, and even silence if intended to communicate.
• "Out-of-Court": Made outside of the current trial or proceeding. Depositions from other cases are considered out-of-court statements.
• "Offered for Its Truth": Crucially, the statement is being used to prove what it asserts. If used for another purpose, it might not be hearsay.

B. Rationale for Exclusion

The hearsay rule seeks to ensure the reliability and trustworthiness of evidence admitted at trial. Hearsay statements lack traditional safeguards:

• Lack of Cross-Examination: The declarant is not subject to cross-examination, which is crucial for testing credibility and exposing inconsistencies.
• Lack of Oath: Out-of-court declarants are not under oath, which lessens the solemnity and encourages truthfulness.
• Lack of Demeanor Observation: The trier of fact cannot observe the declarant's demeanor, which can reveal sincerity or deception.

Because of these concerns, hearsay is generally inadmissible unless an exception or exemption applies.

II. Statements Not Considered Hearsay (Exemptions)

These statements fit the technical definition of hearsay but are specifically excluded from the rule.

A. Prior Statements by a Witness (FRE 801(d)(1))

A prior statement by a testifying witness who is subject to cross-examination is not considered hearsay if it falls into these categories:

1. Prior Inconsistent Statement Under Oath: A prior statement made under oath at a trial, hearing, or deposition that is inconsistent with the witness's current testimony is admissible for both impeachment and as substantive evidence.
2. Prior Consistent Statement Offered to Rebut: Admissible to rehabilitate a witness whose credibility has been attacked. This statement must have been made before the motive to fabricate arose.
3. Prior Statement of Identification: A statement identifying a person the witness perceived earlier is admissible.

B. Statements Attributable to a Party Opponent (FRE 801(d)(2))

These statements are offered against a party and are considered admissions:

1. Party's Own Statement: Any statement made by the party is admissible against them.
2. Adoptive Admission: A statement made by another that the party expressly or impliedly adopts as their own. Silence can be an adoptive admission if a reasonable person would have responded.
3. Statement by Authorized Person: A statement made by a person authorized by the party to speak on the subject is admissible.
4. Statement by Agent or Employee: A statement made within the scope of the agency or employment relationship is admissible.
5. Statement by Co-Conspirator: A statement made by a co-conspirator during and in furtherance of the conspiracy is admissible.

III. Exceptions to the Hearsay Rule

These statements are considered hearsay but are admissible because they fall under specific exceptions. There are two categories: exceptions where the declarant's availability is immaterial (FRE 803) and exceptions that require the declarant to be unavailable (FRE 804).

A. Exceptions Where Declarant's Availability Is Immaterial (FRE 803)

1. Present Sense Impression: A statement describing or explaining an event or condition made while or immediately after the declarant perceived it.
2. Excited Utterance: A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event. Look for exclamation points!
3. Statement of Then-Existing Mental, Emotional, or Physical Condition: Admissible to prove the declarant's state of mind at the time, but not to prove the truth of the matter asserted. Includes statements of intent, plan, motive, design, mental state (e.g., "I'm scared") or physical sensation (e.g., "My back hurts").
4. Statements for Medical Diagnosis or Treatment: Statements made for, and reasonably pertinent to, medical diagnosis or treatment are admissible. This includes statements about medical history, symptoms, pain, or the cause of the injury, even if made to a physician consulted solely for litigation purposes. Statements about fault are generally inadmissible.
5. Recorded Recollection: A record about a matter the witness once knew but now cannot recall well enough to testify fully and accurately. Requirements include: witness had firsthand knowledge, the record was made or adopted when the matter was fresh, the record accurately reflects the witness's knowledge, and the witness testifies to the record's accuracy.
• Distinguish: Unlike refreshing recollection, the record itself is read into evidence but not admitted as an exhibit unless offered by the adverse party.
6. Business Records: Records made at or near the time by a person with knowledge, if kept in the regular course of business, and it was the regular practice of the business to make the record.
7. Public Records and Reports: Similar to business records, but covers records and reports of public agencies or officials. Police reports are generally inadmissible in criminal cases.
8. Ancient Documents: Statements in documents at least 20 years old whose authenticity is established are admissible.
9. Learned Treatises: Statements from reliable treatises, periodicals, or pamphlets used in conjunction with expert testimony. They can be read into evidence but not admitted as exhibits.
10. Reputation Evidence: Admissible to prove reputation about character, familial relations, land boundaries, or community history, if reputation is directly at issue.
11. Judgment of Previous Conviction: Admissible to prove any fact essential to the judgment.
12. Other Exceptions: Various other specific exceptions exist for things like vital statistics records, records of religious organizations, family records, market reports, and commercial publications.

B. Exceptions Requiring Declarant Unavailability (FRE 804)

1. Definition of Unavailability: A declarant is unavailable if they are exempt from testifying due to privilege, refuse to testify despite a court order, testify to lack of memory, are dead or too ill, or are absent and the proponent cannot procure their attendance.
• Procuring Unavailability: If a party wrongfully caused the declarant's unavailability to prevent their testimony, the hearsay exceptions do not apply.
2. Former Testimony: Testimony given under oath at a prior trial, hearing, or deposition, offered against a party who had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. In civil cases, the party against whom the testimony is offered need not be identical, just a predecessor in interest.
3. Dying Declaration: A statement made under the belief of imminent death, concerning the cause or circumstances of what the declarant believed to be impending death. Admissible only in homicide prosecutions and civil actions.
4. Statement Against Interest: A statement so contrary to the declarant's pecuniary or proprietary interest, or subject them to civil or criminal liability, that a reasonable person would not have made it unless they believed it true.
5. Statement of Personal or Family History: A statement concerning the declarant's own birth, adoption, legitimacy, ancestry, marriage, etc., even if the declarant had no personal knowledge.
6. Forfeiture by Wrongdoing: If a party wrongfully caused the declarant's unavailability with the intent to prevent them from testifying, the hearsay rule does not apply to statements offered against that party.

C. Residual Exception (Catch-All Exception) (FRE 807)

Hearsay statements not covered by a specific exception may be admitted if:

1. The statement has equivalent circumstantial guarantees of trustworthiness.
2. It is offered as evidence of a material fact.
3. It is more probative on the point than any other evidence the proponent can reasonably obtain.
4. Admitting it will best serve the purposes of the rules and the interests of justice.

The proponent must give the opponent reasonable notice of their intent to offer the statement.

IV. Hearsay Within Hearsay (Multiple Hearsay)

When a hearsay statement contains another hearsay statement, each level of hearsay must have an exception or exemption for the entire statement to be admissible. For example, a business record containing an employee's statement about an accident would need both a business records exception for the record itself and another exception for the employee's statement.

V. Confrontation Clause Considerations

The Sixth Amendment Confrontation Clause gives criminal defendants the right to confront witnesses against them.

• Testimonial Statements: Out-of-court statements considered "testimonial" are inadmissible against a criminal defendant unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine them. Examples include statements made during police interrogations, grand jury testimony, and prior trial testimony.
• Non-Testimonial Statements: Statements made for purposes other than litigation, such as 911 calls or statements to medical personnel for treatment, are generally considered non-testimonial and may be admissible.

VI. Additional Considerations

• Judges determine the admissibility of evidence, including preliminary questions of fact related to hearsay exceptions.
• Hearsay evidence can be used for impeachment even if inadmissible for its truth.
• The Rule of Completeness (FRE 106) allows a party to introduce other portions of a written or recorded statement if fairness requires it to be considered in context.

Family Law Outline

Getting Married

A. Requirements for Marriage

1. Age: Both parties must be of a minimum age, usually 18, though often younger with parental or judicial approval.
2. Consanguinity and Affinity: The parties must not be too closely related.
3. Mental Capacity: Both parties must have the capacity to consent, meaning the ability to comprehend and voluntarily agree.
4. Prior Undissolved Marriage: Both parties must not have a prior undissolved marriage to a living spouse.

B. Procedural Requirements

1. License: Most states require a marriage license obtained from the designated licensing officer before solemnization.
• Medical Examination: Some states may require a medical examination before issuing a license.
• Waiting Period: Some states may impose a waiting period between obtaining the license and the ceremony.
2. Solemnization: A ceremony conducted by clergy, judges, or other authorized individuals.
• Completion and Filing of License: The officiant must complete and file the marriage license with the appropriate government office to create a public record.
• Proxy Marriages: Some states allow proxy marriages where one party is absent and authorizes a third party to act as their proxy.

C. State of Mind Requirements

1. Capacity to Consent: Each party must possess the ability to comprehend and voluntarily agree to the marriage.
2. Intent: Both parties must have the present intent to enter into a permanent, exclusive relationship with the expectation of children.
3. Marriage for a Limited Purpose: "Sham marriages" entered for a limited purpose (e.g., immigration) may be considered valid if they meet procedural requirements and the parties intended to assume usual marital obligations.

D. Common Law Marriage

1. Consent: Mutual consent to a permanent, exclusive relationship with the expectation of children, not merely cohabitation.
2. Capacity: Both parties must meet the capacity requirements for marriage.
3. Cohabitation: The parties must live together as spouses.
4. Holding Out Publicly as Married: The parties must present themselves to the public as married.
5. Abolished in Most States: While abolished in most states, valid common law marriages formed in permitting states are generally recognized in others.
6. Exceptions to Recognition: A state may not recognize a common law marriage if it violates a strong public policy of that state.
7. Residency Requirement: Some states require parties to reside in the permitting state for a certain period for the marriage to be recognized.

E. Premarital Contracts (Prenuptial Agreements)

1. Purpose: To alter the default legal distribution of assets upon divorce or death.
2. Consideration: Entering into the marriage is sufficient consideration for the contract.
3. Statute of Frauds: Must be in writing and signed by both parties.
4. Content: Can cover property rights, spousal support, estate planning, and other matters not violating public policy.
5. Enforceability: Generally enforceable if they meet certain requirements.
• Voluntariness: The agreement must be entered into freely without duress or coercion.
• Factors: Independent legal advice, time to review, party initiating the agreement.
• Full and Fair Disclosure: Both parties must disclose their financial worth.
• Fair and Reasonable Provisions: Economic provisions must be fair and reasonable.
• Unconscionability: May be evaluated at the time of signing or divorce depending on jurisdiction.
6. Uniform Premarital Agreement Act (UPAA): Adopted by a majority of states, it focuses on voluntariness and unconscionability for enforcement.
7. Choice of Law: Courts typically apply the law of the state with the most significant relationship to the agreement and marriage.
8. Limitations:
• Divorce: Provisions relating to divorce are generally enforceable.
• Terms of the Marriage: Agreements concerning daily aspects of marriage (e.g., sexual relations, religion) are usually unenforceable.
• Child Custody: Provisions regarding child custody are generally unenforceable as courts prioritize the best interest of the child.
• Child Support: Provisions limiting a parent's child support obligation are invalid as against public policy.
9. Invalidity: Must be proven by clear and convincing evidence.
10. Void Marriages: Enforceable only to the extent necessary to avoid an inequitable result.
11. Limitation of Actions: Tolled during the marriage, but equitable defenses like laches and estoppel apply.

Being Married

A. Rights and Responsibilities of Spouses

1. Property: Each spouse owns and controls their separate property, but agency principles and tenancy by the entirety may apply.
• Tenancy by the Entirety: In some states, joint ownership of real estate creates a tenancy by the entirety, including survivorship rights and prohibiting conveyance or encumbrance by one spouse.
• Marital Property: Courts have broad discretion in equitable distribution of property acquired during marriage upon dissolution.
2. Support: Spouses have a mutual obligation of support.
• Alimony/Spousal Support: A spouse may petition for alimony during separation or divorce proceedings, and in some states, at any time.
3. Evidentiary Privileges:
• Spousal Immunity: Protects a spouse from being compelled to testify against their spouse in criminal proceedings.
• Confidential Marital Communications: Protects confidential communications made between spouses during a valid marriage.
4. Family Privacy:
• Common Law Doctrine: Protects certain aspects of family life from outside interference.
• Constitutional Privacy: Provides fundamental rights to marriage, reproductive choices, family rights, and parental rights to care, custody, and control of children.
5. Torts and the Family:
• Interspousal Immunity: Largely abolished, previously prevented spouses from suing each other in tort.
• Parent-Child Immunity: Limited, previously prevented children from suing their parents in tort.
• Interference with Marital Relationship: Includes actions like alienation of affections.
• Alienation of Affections: Requires proof of love and affection, defendant's actions causing loss of affection, actual damages, and causation.
• Damages: Highly subjective, can include mental distress and punitive damages.
• Interference with Parent-Child Relationship: Can involve tortious injury or interference with custody.

B. Marital Agreements (Postnuptial Agreements)

1. Purpose: To alter or confirm marital rights or obligations during the marriage or upon separation, dissolution, or death.
2. Uniform Premarital and Marital Agreements Act (UPMAA): Adopted in a few states, it governs premarital and marital agreements under similar principles.
3. Enforceability: Similar requirements to premarital agreements, including full disclosure, fairness, voluntariness, and writing.

Separation, Divorce, Dissolution, and Annulment

A. Annulment

1. Definition: A legal declaration that a marriage is invalid due to an impediment at the time of the marriage, treating the parties as if they were never married.
2. Types:
• Void Marriage: A marriage that never legally existed, subject to collateral attack and does not require a court order for separation.
• Removal of Impediment: In some states, cohabitation after removal of the impediment validates the marriage.
• Voidable Marriage: A valid marriage until a judicial decree declares it void, only the aggrieved party can seek annulment.
3. Grounds:
• Bigamy/Polygamy: A prior undissolved marriage to a living spouse.
• Presumption of Latest Marriage: A strong presumption exists that the latest marriage is valid.
• Consanguinity: Parties too closely related.
• Nonage: Marriage below the statutory age without parental/judicial consent.
• Incurable Physical Impotence: Inability to consummate the marriage.
• Mental Incompetence: Lack of understanding due to mental infirmity.
• Lack of Assent: Lack of mutual consent to the marriage.
• Duress: Entering the marriage under threat or coercion.
• Fraud: Misrepresentation going to the essentials of marriage (e.g., ability to have sexual relations or bear children).
4. Defenses:
• Void Marriages: Only defense is to deny the impediment.
• Voidable Marriages: Equitable defenses like unclean hands, laches, and estoppel apply.
5. Consequences:
• Children: Generally treated as marital children with rights to child support and custody.
• Spousal Support: Some states allow for spousal support in annulment cases, even if not explicitly provided by statute.
• Temporary support may be awarded during the proceedings.
6. Putative Spouse Doctrine: Allows a party who entered a marriage in good faith but later discovered it was invalid to claim legal spousal rights, such as alimony and property division.
7. Jurisdiction:
• State of Domicile: Either party's state of domicile has jurisdiction.
• State of Marriage Celebration: Many states also grant jurisdiction to the state where the marriage took place.
8. Recognition of Decree: Annulment decrees rendered with proper jurisdiction are recognized by other states under the Full Faith and Credit Clause.

B. Divorce and Separation

1. Divorce: A legal decree terminating the marriage relationship.
• Residency Requirement: Most states require one party to be a resident for a specified period before filing.
• Grounds:
• No-Fault Divorce: Based on irretrievable breakdown of the marriage, often demonstrated by separation, incompatibility, or irreconcilable differences.
• Fault-Based Divorce: Requires proof of marital fault by one party.
• Grounds: Adultery, desertion, cruelty, drug/alcohol addiction, mental illness.
• Adultery: Requires proof of voluntary sexual intercourse with someone other than the spouse.
• Desertion: Requires willful abandonment of the marital home for a specified period with no intent to return.
• Cruelty: Can be physical or mental, requiring more than a single incident.
• Habitual Drunkenness: Frequent intoxication causing disruption in the marriage.
• Bigamy: Knowingly entering a second legal marriage while still married.
• Imprisonment: Imprisonment for a specified period.
• Defenses: Collusion, connivance, condonation, recrimination, justification.
• Collusion: Agreement between spouses to fabricate grounds for divorce.
• Connivance: Consent by one spouse to the other's misconduct.
• Condonation: Forgiveness of marital offenses with full knowledge.
• Recrimination: Both spouses are guilty of fault grounds.
• Justification: Leaving the home due to the other spouse's misconduct.
2. Legal Separation: A court order allowing spouses to live apart while remaining legally married, addressing issues like property, support, and custody.
• Reasons: Religious beliefs, retaining spousal benefits.
• Conversion to Absolute Divorce: Possible in some states after a specified period.
3. Jurisdiction and Recognition of Decrees:
• Residency: One party must be domiciled in the jurisdiction.
• In Rem Action: Plaintiff's domicile alone can grant jurisdiction for divorce, allowing constructive service on the defendant.
• Personal Jurisdiction: Needed for property division and spousal support orders.
• Ex Parte Divorce: Can grant a divorce but not property or support orders without personal jurisdiction over the defendant.
• Exception: In rem jurisdiction over marital property located within the state may exist.
• Full Faith and Credit: Valid divorce decrees from one state are recognized in other states if the granting court had jurisdiction over the subject matter and the parties.
• Collateral Attack: Only the domicile of the petitioner can be challenged in another state.
• Foreign Divorces: Recognition may be granted based on comity and reciprocity, particularly if one party was domiciled in the foreign country.
4. Preliminary/Interlocutory Decrees and Final Orders: Some states use interlocutory decrees that become final after a specified time, restricting remarriage and affecting inheritance during the interim period.
5. Division of Property: Three main approaches - community property, equitable division of all property, and equitable distribution of marital property.
• Equitable Distribution of Marital Property: Most common approach, separates separate property and equitably divides property acquired during the marriage.
• Separate Property: Owned before marriage, acquired by gift/inheritance, or acquired with proceeds of separate property.
• Professional License/Degree: Generally considered separate property, but may affect alimony.
• Marital Property: All property acquired during the marriage, except for separate property and exclusions by agreement.
• Pensions: Considered marital property if acquired during the marriage.
• Personal Injury Awards: Allocation depends on jurisdiction and nature of damages.
• Stock Options: Marital property even if not exercisable until after divorce.
• Mixed Property: Separate property commingled with marital property, transmutation of separate property into marital property, or improvement of separate property with marital funds.
• Factors for Equitable Distribution: Duration of marriage, prior marriages, economic circumstances, contributions, misconduct, and other relevant factors.
• Fault: Generally not considered in property division except in some states and under the UMDA.
• Community Property: All property acquired during marriage is owned equally, separate property remains separate.
6. Spousal Support (Alimony):
• Purpose: To provide financial assistance to a spouse after divorce, considering factors like need, ability to pay, duration of marriage, lifestyle, and contributions.
• Types:
• Lump Sum: A fixed, non-modifiable amount paid at once.
• Periodic: Ongoing payments for an indefinite period, modifiable based on changed circumstances.
• Rehabilitative: Temporary support to help a spouse become self-supporting.
• Reimbursement: Compensates a spouse for supporting the other's education or career development.
• Factors for Awarding: Economic circumstances, duration of marriage, contributions, fault in some jurisdictions.
• Tax Consequences: Deductible by the payer and taxable income for the recipient.
• Modification: Generally modifiable based on substantial changes in circumstances.
• Lump sum: Not modifiable unless fraud is shown.
7. Child Support: See information in Child Custody section below.
8. Mediation:
• Role: A neutral third party facilitates communication and negotiation between spouses.
• Ethical Standards: Mediators must be impartial, disclose conflicts, ensure informed decision-making, and address power imbalances.
• Mediator Misconduct: Grounds for setting aside a separation agreement.
• Confidentiality: Generally confidential, except in cases of abuse or threats.
• Agreements: Enforceable as contracts.
9. Other Forms of ADR:
• Arbitration: A third-party makes a binding decision.
• Finality: Decisions are generally final unless fraud or partiality is shown.
10. Separation Agreements:
• Purpose: To resolve economic and custody issues during separation or before divorce.
• Content: Can address property division, spousal support, child support, custody, and visitation.
• Requirements: Full disclosure, fairness, voluntariness.
• Enforceability: Governed by contract principles.
• Merger into Divorce Decree: Often merged, making enforcement a matter of enforcing the court order.
• No Merger: Enforced as a contract.
• Modification: Child support and custody provisions can be modified if in the best interest of the child.

I. Child Custody

A. Jurisdiction

1. Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA): The UCCJEA, adopted in all states, aims to minimize jurisdictional disputes between states regarding child custody and visitation, promoting interstate cooperation, and facilitating the enforcement of custody and visitation orders across state lines.

a. Initial Custody Determination: * The home state holds jurisdiction, meaning where the child has lived with a parent for at least six months before the custody proceeding, or from birth if the child is younger than six months old. * If no home state exists, a state with significant connections to the child and at least one parent, and substantial evidence concerning the child's care, protection, training, and personal relationships can exercise jurisdiction. * A court can assert jurisdiction if all states with potential jurisdiction under the home state or significant connection tests decline, deeming the current state a more suitable forum. * In situations where no state meets the criteria above, a court can exercise default jurisdiction.

b. Exclusive Continuing Jurisdiction: * The court that initially determined custody maintains exclusive jurisdiction until it decides that: (i) neither the child nor their parents reside in the state; or (ii) the child lacks a significant connection with the state, and substantial evidence concerning their care, protection, etc. is unavailable.

c. Temporary Emergency Jurisdiction: * A court can exercise temporary emergency jurisdiction if: (i) the child is in danger; and (ii) the child requires immediate protection. * If an existing custody order exists, the court must allow time for parties to return to the original court to argue. If no prior order exists, the emergency order remains until the home state court modifies it.

d. Enforcement of Another State's Order: * A court can enforce another state’s custody or visitation order using any remedy available to enforce its own orders. The UCCJEA offers additional remedies: * Registration of Order: A custody or visitation order can be registered in a new state. Once registered and unchallenged, the court can grant any relief for enforcement. * Expedited Enforcement: The UCCJEA provides a process similar to habeas corpus. If a petition is filed, the court orders the respondent to appear at a hearing on the next judicial day after service. The petitioner will be granted immediate physical possession of the child unless the respondent demonstrates specific conditions outlined in the UCCJEA. * Warrant to Take Physical Custody: Upon petitioning for enforcement, the petitioner can request a warrant for physical custody. The court will grant it if there's imminent likelihood of serious harm to the child or their removal from the state.

2. Parental Kidnapping Prevention Act (PKPA):
• While mostly replaced by the UCCJEA, the PKPA focuses on interstate modification of custody decrees, granting full faith and credit to another state’s custody or visitation order, subject to similar jurisdictional conditions as the UCCJEA.
3. Enforcement:
• Habeas Corpus: Primarily used to determine who has legal right to the child, but some states might reopen the best interest question. Enforceable via contempt proceedings.
• Suit in Equity: Requests the court to prevent conduct violating the custody order. Broader than habeas corpus and has largely superseded it.
• Out-of-State Decrees: Enforceable if a certified copy is filed with the court clerk. The issuing court usually retains jurisdiction for modifications, but another court can modify if: (i) the original court declines jurisdiction; and (ii) the out-of-state party receives proper notice.
• Sanctions: Include compensatory visitation, attorney fees, court costs, fines, and jail time.

B. Standards for Decision

1. Best Interest and Welfare of the Child:
• The primary standard for custody decisions, prioritizing the child's well-being.
• Considers various factors, including the child’s preference (especially if older than 12), primary caregiver status, stability, and parental fitness.
• Race and religion are not relevant factors.
• Parental sexual conduct is generally not considered unless it directly impacts the child.
• Courts prioritize keeping siblings together unless it’s detrimental to their well-being.
• Domestic violence is a crucial factor, often creating a presumption in favor of the non-abusive parent.
2. Tender Years Presumption:
• Obsolete and constitutionally dubious, this presumption favored mothers for custody of young children unless proven unfit. Largely abandoned.
3. Primary Caretaker:
• While gender and financial ability aren’t decisive, the primary caregiver during the marriage and separation is often favored, promoting stability and recognizing established bonds.
4. Third-Party Rights:
• Parents have a fundamental right to raise their children unless deemed unfit or it's detrimental to the child.
• Non-parents seeking custody or visitation require significant justification, usually involving parental unfitness or potential harm to the child.
• A fit parent's decision regarding non-parent visitation carries "special weight."

C. Types of Custody

1. Legal Custody:
• The right to make major decisions regarding the child's upbringing, including health, education, and religion. Can be shared (joint legal custody).
2. Physical Custody:
• The right to have the child live with a parent or guardian, with the responsibility for daily care. Can be shared (joint physical custody).
3. Joint Custody:
• Involves shared legal and/or physical custody. Requires parental cooperation and can be challenging if significant hostility exists. Factors considered include parental agreement, ability to communicate, child's needs, and geographic proximity.
• Mediation can be particularly effective in resolving joint custody disputes.

D. Visitation (Parenting Time)

1. Noncustodial Parent Rights:
• Generally entitled to reasonable visitation, also termed "parenting time." Denial requires extreme circumstances where visitation would harm the child.
2. Third-Party Visitation:
• Stepparents, grandparents, and non-biological co-parents may seek visitation.
• Often granted if the individual acted in loco parentis before the divorce.
• A fit parent's decision against third-party visitation holds significant weight.
• Grandparent visitation statutes exist in most states, but none guarantee it. Courts consider the parent's decision, the grandparent-child relationship, and the child's best interest.
• Unwed biological fathers have visitation rights if they demonstrate commitment to parenting responsibilities. State intervention may occur if the mother is married and refuses paternity action.
3. Limitations and Restrictions:
• Courts can limit visitation based on parental conduct that could harm the child.
• Restrictions may involve supervised visitation or overnight stays.
• A parent's sexual relationship or cohabitation is generally not a basis for restricting visitation.

E. Modification

1. Standard:
• Requires demonstrating a substantial and material change in circumstances since the prior decree, and that modification serves the child's best interest.
• The need for stability and continuity in the child's life must be weighed against the changed circumstances.
• Common grounds include parental relocation, change in child's needs, parental misconduct, and remarriage or cohabitation.
2. Jurisdiction:
• The court issuing the original custody order typically retains exclusive continuing jurisdiction.
• Another state can modify the order if the original court declines jurisdiction and the out-of-state party receives sufficient notice.
3. Relocation:
• Moving the child out of state can be a modification issue, often addressed in the original custody order.
• Courts may permit relocation if it benefits the custodial parent and isn’t solely intended to frustrate visitation rights.
• A custodial parent should seek modification before relocating.
4. Nonmarital Cohabitation:
• Generally, a parent’s cohabitation alone isn't sufficient to modify a custody order.

F. Child’s Representation

1. Counsel for the Child:
• Courts can appoint an attorney or guardian ad litem for the child, especially in highly contested custody disputes.
• The attorney advocates for the child's best interest, potentially representing their preferences if the child is mature enough.
• May conduct investigations and provide recommendations to the court. Fees are typically paid by parents.
2. Approaches to Representation:
• Advocating for the child's wishes.
• Making an independent assessment of the child's best interest.
• A hybrid approach considering both the child’s wishes and best interest.

II. Rights of Unmarried Cohabitants

A. Contracts Between Unmarried Cohabitants

1. Enforceability:
• Contracts between unmarried partners are generally enforceable if supported by valid consideration beyond sexual relations.
2. Types of Contracts:
• Express Contracts: Clearly stated agreements, whether written or oral.
• Implied Contracts: Inferred from the parties’ conduct and circumstances.

B. Division of Property

1. Equitable Distribution:
• Courts may apply equitable principles to divide property acquired during cohabitation, aiming to avoid unjust enrichment.
• Legal theories used include resulting trust, constructive trust, and quantum meruit.
2. Factors Considered:
• Contributions to the acquisition of property.
• Length of the relationship.
• Intent of the parties.
3. Distinction from Marital Property:
• Property division for unmarried partners is typically based on equitable principles rather than the marital property laws applied to divorcing spouses.

III. Parent, Child, and State

A. Parental Rights and Responsibilities

1. Fundamental Right to Raise Children:
• Parents have a fundamental right to care, custody, and control of their children, protected by due process.
2. Limitations:
• Parental authority is not absolute and can be limited by state interests, including child abuse and neglect laws, compulsory education, and emancipation.

B. Parental Liability for Child’s Actions

1. Common Law:
• Parents generally aren't liable for their child’s actions unless they authorized or encouraged the behavior, or failed to adequately supervise.
2. Statutory Liability:
• Some states have statutes imposing parental liability for specific acts of their children, such as vandalism or truancy.

C. Children's Rights

1. Right to Support:
• Children have a right to financial support from both parents, which cannot be bargained away.
2. Right to Education:
• Parents have the right to educate their children, including choosing private or home schooling, subject to state regulations ensuring educational standards.

D. Termination of Parental Rights

1. Grounds:
• Termination requires clear and convincing evidence of severe parental deficiencies, such as:
• Abandonment: Failure to provide care or maintain contact.
• Abuse or neglect.
• Incapacity: Physical or mental inability to parent.
• Termination of rights over a sibling.
2. Due Process:
• Parents have a fundamental right to raise their children, requiring due process before termination. This usually involves notice, a hearing, and the right to counsel.

E. Emancipation

1. Definition:
• Emancipation grants a minor the legal status and responsibilities of an adulthood, ending parental control and support obligations.
2. Grounds:
• Marriage.
• Military service.
• Financial independence and living apart from parents.
3. Procedure:
• A minor can petition the court for emancipation, demonstrating self-sufficiency and independence.

IV. Adoption

A. Definition and Types

1. Definition:
• A legal process terminating the biological parents' rights and creating a new parent-child relationship with the adoptive parents.
2. Types:
• Agency Placements: Licensed agencies facilitate adoptions, conducting background checks and overseeing the process.
• Private or Independent Adoption: Natural parents directly contract with adoptive parents. Legal in some states, often requiring a home study and court approval.

B. Jurisdiction and Venue

1. Jurisdiction:
• The UCCJEA generally excludes adoption, leaving jurisdiction to individual state laws, which often follow the Uniform Adoption Act (UAA) or incorporate adoption into the UCCJEA.
• The UAA grants jurisdiction to a state where: (i) the child lived for six months prior to the proceeding; (ii) the prospective adoptive parent resided for six months prior; (iii) the agency placing the child is located; (iv) the child and prospective parent are present, and the child has been abandoned or endangered; or (v) no other state has jurisdiction or declines in favor of the current state.
2. Venue:
• Typically determined by the petitioner's residency, the child’s residency, or the location of the placement agency.

C. Procedural Considerations

1. Consent:
• Biological parents' consent is generally required.
• Exceptions include:
• Prior termination of parental rights.
• Unreasonable withholding of consent against the child’s best interest, such as in cases of abandonment.
2. Unmarried Fathers:
• The father’s consent may not be necessary depending on state law and his level of involvement with the child.
• An unwed father has a right to opportunity to develop a relationship with the child, especially newborns, and his consent might be required unless he hasn’t demonstrated parental responsibility.
3. Withdrawal of Consent:
• Possible before the adoption decree if it's in the child's best interest. After the decree, withdrawal is generally prohibited.
4. Investigation and Court Approval:
• Thorough investigation of the prospective adoptive parents is usually required, focusing on their suitability and home environment. Sometimes waived for close family adoptions.
5. Payment Prohibition:
• Direct payments for adoption are generally illegal. Allowable expenses include medical costs for the birth mother and legal fees.
6. Confidentiality:
• Adoption proceedings and records are typically sealed to protect the parties' privacy.

D. Legal Effects

1. New Parent-Child Relationship:
• Adoption creates a legal parent-child relationship, granting the adoptive parents all rights and responsibilities, and the child all rights of a biological child.
2. Termination of Biological Parents’ Rights:
• In most jurisdictions, adoption severs the biological parents' legal rights and obligations.
3. Visitation:
• Post-adoption visitation between the adoptee and biological parents is generally prohibited. Stepparent visitation may be allowed depending on their prior relationship with the child.
4. Dissolution:
• Adoptions are typically permanent and difficult to dissolve. Exceptions may exist for undisclosed severe illness or significant harm to the child.

V. Alternatives to Adoption

A. Assisted Reproduction

1. Uniform Parentage Act (UPA):
• Governs parentage in assisted reproduction cases, aiming to clarify legal relationships when third parties are involved.
• Adopted in nine states, with varying approaches in other jurisdictions.
2. Types:
• Artificial insemination.
• In vitro fertilization.
• Embryo transplantation.
• Gestational agreements (surrogacy).
3. Maternity:
• The woman giving birth is the legal mother, except in valid gestational agreements.
4. Paternity:
• For married couples using assisted reproduction, the husband is the legal father, regardless of the biological source of sperm or egg.
• Sperm donors generally don't have parental rights unless agreed in writing by the donor and recipient.
5. Gestational Agreements:
• Involve a woman (gestational mother) carrying a child for intended parents.
• Require a written agreement where the gestational mother relinquishes parental rights, and the intended parents assume parentage.
• Need court approval before conception, with strict requirements for validation, including home studies, counseling, and legal representation.
• If not approved by the court, the agreement is unenforceable, and the gestational mother retains parental rights.
• Not permitted in some states due to ethical concerns about commodifying children.

B. Ownership of Fertilized Ovum

1. Legal Status:
• Fertilized ova outside the body (in vitro) have a unique legal status, often treated as property. Disputes can arise regarding ownership and disposition, especially in cases of divorce or death.

C. Child Support

1. Assisted Conception Cases:
• Courts can order child support in assisted conception cases, considering the legal parentage established through the UPA or other applicable laws.

D. Other Alternatives

1. Co-Parenting Agreements:
• Unmarried individuals intending to raise a child together can create co-parenting agreements outlining their roles, responsibilities, and decision-making authority.
• Enforceability varies by jurisdiction.

Key Considerations for UBE

• Always analyze the facts in light of the specific state law provided in the exam question.
• Recognize the constitutional dimensions of family law issues, particularly due process and equal protection concerns.
• Understand the interaction between state and federal laws, including the UCCJEA, PKPA, and UIFSA.
• Articulate the competing interests involved, such as the rights of parents, the welfare of children, and the state’s interest in protecting vulnerable parties.

Real Property Outline

Ownership of Real Property

I. Present Possessory Estates

A present possessory estate gives the holder a present right of possession and right to use and enjoy the property.

A. Freehold Estates

A freehold estate gives the owner title to or a right to hold the property.

1. Fee Simple Absolute

This is the largest possible estate, giving the holder all possible rights, including the right to sell or convey all or part of the property and the right to devise the property. A fee simple absolute may last in perpetuity. If the owner dies intestate, the property passes to the owner’s heirs.

a. Creation

The traditional words used to create a fee simple absolute are “to A and his heirs.” Modern law assumes a fee simple absolute if the language is ambiguous, so a conveyance of "to B" would be sufficient.

b. Rights of Possession and Use

The grantee of a fee simple absolute has the exclusive rights of possession and use.

2. Defeasible Fees

Defeasible fees are estates that may be cut short upon the occurrence of a specified event. They are alienable, devisable, and descendible.

a. Fee Simple Determinable

A fee simple determinable is an estate that ends automatically when a certain event or condition occurs, specified in the conveyance. The interest will automatically revert back to the grantor or the grantor's heirs.

i. Creation

A fee simple determinable is created using durational language such as "so long as," "during," "while," and "until." The grantor holds the possibility of reverter.

b. Fee Simple Subject to a Condition Subsequent

A fee simple subject to a condition subsequent is a defeasible fee estate that does not end automatically upon the occurrence of the condition specified in the conveyance. The grantor must expressly provide language containing a right of reentry upon the happening of the specified event. The language must expressly state that if the grantee does not use the parcel as designated, the grantor may reenter and occupy the parcel.

i. Creation

The language used to create this interest would include: "to Grantee, but if Grantee sells alcohol, Grantor has the right of reentry."

3. Life Estates

A life estate is an interest in real property that lasts for the duration of a person’s lifetime. The holder has the right to possess the property during their lifetime, but the ownership interest terminates upon their death.

a. Creation

A life estate is created by language such as “To A for life” or “To A for the life of B.”

b. Rights and Duties

The life tenant is entitled to all the ordinary uses and profits of the land. A life tenant must not commit waste. The future interest following a life estate can be a reversion in the grantor or a remainder in a third party.

B. Non-Freehold Estates

A non-freehold estate gives mere possession, such as in the case of a leasehold.

1. Leasehold Estates

In a leasehold estate, the tenant enjoys all rights attendant with possession for the term of the lease.

a. Types of Leasehold Estates

i. Estate for Years

An estate for years (also known as a tenancy for years) is an estate that lasts for a fixed period of time. It has a definite beginning and end date and automatically expires at the end of the term.

ii. Periodic Tenancy

A periodic tenancy (also known as a tenancy from period to period) is a leasehold estate that is automatically renewed for successive periods until one of the parties gives proper notice to terminate it. Examples include month-to-month or year-to-year tenancies.

iii. Tenancy at Will

A tenancy at will is a leasehold estate that has no fixed duration and can be terminated by either the landlord or the tenant at any time. However, reasonable notice is typically required to terminate a tenancy at will.

iv. Tenancy at Sufferance

A tenancy at sufferance occurs when a tenant wrongfully remains in possession of the property after the lease has expired. It arises by operation of law and is not a true leasehold estate.

II. Future Interests

A future interest is a present non-possessory estate or interest in real property that may become a possessory interest at some time in the future. A future interest follows a qualified estate and may be created in a grantee or in a grantor.

A. Reversions

A reversion is a future interest that arises when a grantor conveys a lesser estate than the grantor possesses and does not specify a third party to receive the remaining interest upon the termination of the lesser estate. In this situation, the interest automatically reverts back to the grantor.

B. Remainders

A remainder is a future interest that is created in a third party and becomes possessory upon the natural termination of the prior estate. Remainders typically follow life estates or estates for a term of years.

1. Vested Remainders

A vested remainder is a remainder that is: (1) given to an ascertained grantee; and (2) not subject to a condition precedent.

a. Indefeasibly Vested Remainder

An indefeasibly vested remainder is a remainder that is certain to become possessory in the future and cannot be divested or defeated by any condition subsequent.

b. Vested Remainder Subject to Complete Defeasance/Divestment

A vested remainder subject to complete defeasance (or divestment) is a remainder that may be completely divested or defeated upon the occurrence of a condition subsequent.

c. Vested Remainder Subject to Open

A vested remainder subject to open is a remainder that is given to a class of persons, but the class is still open to the possibility of additional members being added in the future. For example, a grant "to A for life, then to A's children" would create a vested remainder subject to open if A already has children, as the class of A's children is not closed.

2. Contingent Remainders

A contingent remainder is a remainder that is either given to an unascertained person or subject to a condition precedent.

C. Executory Interests

An executory interest is a future interest created in a third party (transferee) that divests or cuts short a prior estate.

1. Shifting Executory Interest

A shifting executory interest divests a prior estate created in a third party.

2. Springing Executory Interest

A springing executory interest divests the grantor’s interest.

D. Rules that Limit Future Interests

1. Rule Against Perpetuities

The Rule Against Perpetuities prevents remote vesting of property interests. The traditional rule states that "no interest is good unless it must vest, if at all, no later than 21 years after some life in being at the creation of the interest." In simpler terms, it means that a future interest must become certain to vest or fail to vest within a specific time frame (21 years after the death of someone alive when the interest was created).

a. Interests Subject to the Rule

The Rule Against Perpetuities applies to a broad array of contingent interests in real property, such as contingent remainders, executory interests, vested remainders that are subject to open, and, in many states, options to purchase or repurchase property. The rule also applies to powers of appointment under a will.

b. Interests NOT Subject to the Rule

The rule does not apply to reversions, possibilities of reverter, and rights of entry.

III. Co-tenancy

Co-tenancy exists when two or more people hold an interest in the same property.

A. Tenancy in Common

Each co-tenant owns an undivided interest in the whole of the property. Each tenant has a right to possess the whole.

1. Creation

Unity of possession is required; each tenant has the right to possess the whole.

2. No Right of Survivorship

There is no right of survivorship in a tenancy in common. If one co-tenant dies, their interest passes to their heirs or devisees.

B. Joint Tenancy

Each joint tenant owns an undivided interest in the whole of the property, but there is a right of survivorship. If one joint tenant dies, the surviving joint tenant(s) automatically inherit the deceased tenant’s interest.

1. Creation

Requires four unities: (1) possession, (2) interest, (3) title, and (4) time. All joint tenants must acquire their interests at the same time, from the same instrument, with identical interests, and with equal rights of possession.

2. Right of Survivorship

The surviving joint tenant(s) automatically inherit the deceased tenant’s interest.

C. Tenancy by the Entirety

Tenancy by the entirety is a form of joint tenancy available only to married couples. It provides special protections for the couple’s ownership interests.

1. Creation

Requires the four unities of a joint tenancy, plus marriage.

2. Rights of Possession and Use

Both spouses have an equal right to possess and use the entire property.

3. Right of Survivorship

If one spouse dies, the surviving spouse automatically inherits the entire interest.

Rights in Real Property

This section covers non-possessory interests in land, which are rights to use the land of another in a manner that would otherwise be a trespass.

I. Covenants at Law and Equity

Covenants are agreements or promises that concern the use of land and benefit and burden both the original parties to the promise and their successors. They can be affirmative (requiring the burdened party to do something) or negative (restricting how land may be used).

A. Real Covenants

Real covenants are enforced by an action at law for money damages.

1. Requirements for the Burden to Run with the Land

a. Written Document

There must be a writing that complies with the Statute of Frauds.

b. Intent

The original parties must have intended for the covenant to run with the land.

c. Horizontal Privity

Horizontal privity exists when there is a shared interest in the property at the time the covenant is created (e.g., grantor-grantee, landlord-tenant, mortgagor-mortgagee).

d. Vertical Privity

Vertical privity exists if the original party transferred their entire interest to the subsequent owner.

e. Touches and Concerns the Land

The covenant must relate to the use and enjoyment of the land.

2. Requirements for the Benefit to Run with the Land

a. Written Document

There must be a writing that complies with the Statute of Frauds.

b. Intent

The original parties must have intended for the covenant to run with the land.

c. Vertical Privity

Vertical privity exists if the original party transferred the entire estate or any lesser estate to the subsequent owner.

d. Touches and Concerns the Land

The covenant must relate to the use and enjoyment of the land.

B. Equitable Servitudes

Equitable servitudes are identical to real covenants, except that they are enforced in equity by an injunction. No privity is required.

1. Requirements for an Equitable Servitude

a. Written Document

A writing is generally required, but there is an exception for implied reciprocal servitudes.

b. Intent

The original parties must have intended for the restriction to run to future landowners.

c. Notice

The current owner of the servient estate took with notice of the servitude.

d. Touches and Concerns the Land

The covenant must relate to the use and enjoyment of the land.

2. Implied Reciprocal Servitudes

Implied reciprocal servitudes (also called reciprocal negative easements) may be enforced even if they do not appear in the chain of title. They arise when a common grantor develops land and intends to create a common scheme or plan of development. For example, if a developer sells lots with a restriction requiring single-family dwellings, even if the restriction is not explicitly included in subsequent deeds, the restriction may be implied.

a. Elements

i. Common Scheme or Plan

The restriction is part of a common scheme or plan for development.

ii. Notice

The current owner of the servient estate took with notice of the restriction.

b. Factors to Show Common Scheme

• A large percentage of lots expressly burdened.
• Oral representations to buyers.
• Statements in advertisements to buyers.
• Recorded plot maps or other declarations.

3. Terminating a Covenant or Equitable Servitude

a. Written Release

The parties may agree to terminate the covenant in writing.

b. Merger of the Dominant and Servient Estates

If the owner of the benefited property acquires the burdened property, the covenant or servitude terminates.

c. Abandonment

If the benefited party abandons the covenant or servitude, it terminates.

d. Estoppel

If the benefited party acts in a way that leads the burdened party to believe that the covenant is no longer in effect, the benefited party may be estopped from enforcing it.

e. Changed Circumstances

If the circumstances surrounding the covenant have changed so much that the reason for the restriction is no longer valid, the covenant may be terminated.

II. Easements

An easement is a non-possessory property interest that confers a right to use another’s land.

A. Easement Appurtenant

An easement appurtenant benefits a specific parcel of land (the dominant estate) and burdens another parcel of land (the servient estate).

1. Creation

a. Express Grant

Created by a written agreement between the landowners that satisfies the Statute of Frauds.

b. Implied by Prior Use

Arises when a landowner subdivides land, and there was a common apparent use that existed prior to the subdivision.

c. Implied by Necessity

Arises when a parcel of land becomes landlocked and the easement is necessary to access a public road. An easement by necessity ends when the necessity ends.

d. Prescription

Created when someone uses the land of another openly, notoriously, continuously, and without permission for the statutory period of time (typically 20 years).

2. Transfer

The burden of the easement passes automatically with the servient land, unless the new owner is a bona fide purchaser with no notice of the easement. The benefit of the easement passes automatically with the dominant estate.

3. Scope

Reasonable development of the easement is permitted, but the easement must be used for its original purpose.

4. Termination

a. Release

The holder of the easement releases the easement in writing.

b. Merger

The dominant and servient estates come under common ownership.

c. Abandonment

The holder of the easement demonstrates by physical action an intent to abandon the easement.

d. Estoppel

The servient estate owner detrimentally relies on the holder's conduct indicating an intent to abandon the easement.

e. Prescription

The servient estate owner interferes with the easement for the statutory period.

f. End of Necessity

An easement by necessity terminates when the necessity ends.

B. Easement in Gross

An easement in gross benefits a person or entity rather than a specific parcel of land. There is no dominant estate. For example, utility easements are typically easements in gross.

1. Creation

Easements in gross may be created by operation of law or by an express written or verbal agreement.

2. Transfer

Easements in gross are not transferable unless the parties intend for them to be.

III. Profits

A profit is a non-possessory interest in land that allows the holder to enter the land of another and remove something from it (e.g., minerals, timber, oil, gas). Profits are similar to easements, but they involve the right to take something from the land. Profits are created and terminated in the same way as easements.

IV. Licenses

A license is a revocable privilege to enter the land of another for a specific purpose. It is not an interest in land, and it does not run with the land.

A. Creation

Licenses can be created orally or in writing.

B. Revocation

Generally, a license is revocable at will by the licensor. However, a license coupled with an interest is not revocable. Additionally, if a licensee spends money or labor in reliance on the license, the license is irrevocable until the person gets value out of the expenditure.

C. Transferability

Licenses are not transferable unless the licensor so intends.

D. Termination

A license terminates on the death of the licensor or the conveyance of the servient estate.

V. Fixtures

Fixtures are items of personal property that have been attached to real property in such a way that they are considered part of the real property. Whether an item is a fixture depends on the intent of the person who attached it.

A. Elements of a Fixture

• Annexation: The item must be physically attached to the real property.
• Adaptation: The item must be adapted to the use of the real property.
• Intent: The intent of the person who attached the item must have been to make it a permanent part of the real property.

B. Trade Fixtures

Trade fixtures are items of personal property that are attached to real property for the purpose of carrying on a trade or business. They are generally considered to be personal property of the tenant and can be removed at the end of the lease, as long as the tenant restores the premises to their original condition.

VI. Zoning

Zoning is the government’s power to regulate the use of land for the health, safety, and welfare of the public.

A. Types of Zoning

• Residential: Restricts land use to residential purposes.
• Commercial: Allows for businesses and commercial activities.
• Industrial: Permits manufacturing and industrial uses.
• Agricultural: Limits land use to farming and agricultural activities.

B. Nonconforming Uses

A nonconforming use is a use of land that was lawful when it began but is now prohibited by zoning regulations. A grandfather provision may allow the pre-existing, nonconforming use to continue.

C. Variances

A variance is an exception to zoning regulations that allows a property owner to use their land in a way that is otherwise prohibited.

D. Special Use Permits

A special use permit allows a property owner to use their land for a specific purpose that is not otherwise permitted in the zoning district, but that is considered beneficial to the community.

VII. Support Rights

A. Lateral Support

Lateral support refers to the support that a parcel of land receives from the adjacent land. Landowners have a right to lateral support for their land in its natural state.

1. Strict Liability

If a landowner’s excavation causes adjacent land to subside in its natural state, the excavating landowner is strictly liable for damages.

2. Negligence

If the adjacent land has been improved, the excavating landowner is liable only if they acted negligently.

B. Subjacent Support

Subjacent support refers to the support that the surface of land receives from the underlying strata. If a landowner removes minerals or other substances from beneath the surface, they may be liable for damages if the surface subsides.

VIII. Water Rights

A. Riparian Rights

Riparian rights are the rights of landowners who border a watercourse (e.g., river, stream, lake). They have the right to reasonable use of the water for domestic purposes and other beneficial uses.

B. Prior Appropriation

The prior appropriation doctrine gives the right to use water to the first person to divert it for a beneficial use. This doctrine is often used in arid western states.

IX. Other Important Real Property Concepts

A. Marketable Title

Marketable title is a title that is free from reasonable doubt as to its validity and that a reasonable purchaser would accept. It is a title that is free from encumbrances (e.g., mortgages, liens, easements) unless they are explicitly identified in the contract. In a contract for the sale of real property, the seller has an implied obligation to convey marketable title to the buyer.

B. Equitable Conversion

The doctrine of equitable conversion states that once a valid and enforceable contract for the sale of real property has been executed, the buyer is treated as the equitable owner of the property and the seller is treated as the equitable owner of the purchase price. This doctrine has significant implications for risk of loss during the executory period of the contract.

C. Recording Acts

Recording acts are state statutes that establish a system for recording documents affecting real property, such as deeds, mortgages, and easements. These acts are designed to protect purchasers of real property from unrecorded interests.

1. Types of Recording Acts

a. Race Statute

Under a race statute, the first person to record their interest prevails, regardless of whether they had notice of prior unrecorded interests.

b. Notice Statute

Under a notice statute, a subsequent bona fide purchaser (BFP) without notice of prior unrecorded interests prevails over a prior unrecorded interest, even if the prior interest is recorded later.

c. Race-Notice Statute

Under a race-notice statute, a subsequent BFP who records first and has no notice of prior unrecorded interests prevails.

2. Types of Notice

a. Actual Notice

Actual notice exists when a party has direct knowledge of a prior interest.

b. Constructive Notice

Constructive notice exists when a document is properly recorded and appears in the chain of title, meaning that a reasonable title search would reveal it.

c. Inquiry Notice

Inquiry notice exists when a party has knowledge of facts that would lead a reasonable person to investigate further and would reveal a prior interest.

D. Deeds

A deed is a written instrument that conveys title to real property.

1. Requirements for a Valid Deed

a. Writing

The deed must be in writing and signed by the grantor.

b. Description of the Property

The deed must contain an adequate legal description of the property being conveyed. The deed must be definite enough to allow a court to fashion a remedy in the case of a dispute.

c. Identification of the Parties

The deed must clearly identify the grantor and the grantee.

d. Words of Conveyance

The deed must contain words indicating the grantor’s intent to transfer the property.

e. Delivery

The deed must be delivered to the grantee with the present intent to transfer ownership.

2. Types of Deeds

a. General Warranty Deed

A general warranty deed provides the greatest protection to the grantee because the grantor makes several covenants or promises regarding the title. These covenants include present covenants (covenant of seisin, right to convey, covenant against encumbrances) and future covenants (covenant of warranty, quiet enjoyment, further assurances).

b. Special Warranty Deed

A special warranty deed limits the grantor’s warranties to defects that arose during the grantor’s ownership of the property.

c. Quitclaim Deed

A quitclaim deed contains no warranties of title whatsoever. The grantee receives whatever interest the grantor has, which may be nothing.

E. Mortgages

A mortgage is a security interest in real property that is given by a borrower (mortgagor) to a lender (mortgagee) to secure the repayment of a loan.

1. Creation

A mortgage is created by a written instrument that meets the requirements of the Statute of Frauds.

2. Types of Mortgages

a. Purchase-Money Mortgage

A purchase-money mortgage is a mortgage that is given to a lender to secure a loan used to purchase the property.

b. Future Advance Mortgage

A future advance mortgage secures future loans that the lender may make to the borrower.

3. Rights and Obligations of the Parties

a. Mortgagor's Rights

The mortgagor (borrower) has the right to possess and use the property, subject to the terms of the mortgage.

b. Mortgagee's Rights

The mortgagee (lender) has the right to foreclose on the property if the mortgagor defaults on the loan.

4. Foreclosure

Foreclosure is a legal process by which a mortgagee can sell the mortgaged property to satisfy the debt owed by the mortgagor.

5. Redemption

Redemption is the mortgagor’s right to reclaim the property after default but before foreclosure by paying the outstanding debt and any associated costs.

6. Priority of Mortgages

Multiple mortgages on the same property are prioritized based on the time of recording. The first mortgage to be recorded (senior mortgage) has priority over subsequent mortgages (junior mortgages). However, there are exceptions to this general rule, such as purchase-money mortgages.

Real Estate Contracts

I. Contracts to Sell and Buy

• A marketing contract reflects the terms and conditions of an agreement between a buyer and a seller of real property.
• This contract may exist separate and distinct from any documents regarding financing of the real property interest or a conveyance.
• The parties may also refer to the contract as a sell and buy contract.

A. Statute of Frauds

• To be enforceable, a real estate contract must satisfy the Statute of Frauds.
• The contract must:
• be in writing
• be signed by the party against whom enforcement is sought
• contain the essential terms of the agreement

1. Part Performance Exception

• An oral contract for the sale of land may be enforced if the buyer has partially performed the contract.
• Partial performance may include:
• payment of all or part of the purchase price
• taking possession of the property
• making improvements to the property
• The buyer's actions must unequivocally indicate that a contract for the sale of land exists.

B. Essential Terms

• A valid real estate contract must include the following essential terms:
• names and addresses of the parties
• accurate legal description of the land
• signature of the party to be bound
• language indicating an intention to buy and sell the land
• selling price of the land
• recital of earnest money and consideration for the purchase

C. Marketable Title

• A seller of real property has an implied duty to convey marketable title to the buyer.
• Marketable title is title that is free from reasonable doubt as to its validity.
• A title that is subject to an unreasonable risk of litigation is not marketable.

1. When Title is Not Marketable

• The following are examples of title defects that may render title unmarketable:
• outstanding mortgage or lien on the property
• defect in the chain of title
• encroachment on the property
• zoning violation
• A property in violation of building codes is not considered to have an encumbrance and the title is marketable.

2. Curing Title Defects

• A seller has a reasonable time before closing to cure any defects in the title.

3. Insurable Title

• A real estate contract may include a clause requiring the seller to convey insurable title.
• Insurable title is title that a title insurance company is willing to insure.
• The standard for insurable title may be lower than the standard for marketable title.

D. Remedies for Breach

1. Seller’s Remedies

• Specific performance: A seller may seek specific performance of a real estate contract, compelling the buyer to purchase the property.
• Specific performance is available because real property is considered unique and money damages may not be an adequate remedy for the seller.
• Damages: A seller may seek damages for the buyer’s breach of contract, typically measured by the difference between the contract price and the fair market value of the property.

2. Buyer’s Remedies

• Specific performance: A buyer may seek specific performance of a real estate contract, compelling the seller to convey the property.
• Damages: A buyer may seek damages for the seller’s breach of contract.
• If the seller intentionally breached the contract, the buyer may recover the difference between the market value of the property and the contract price.
• If the breach was not intentional, the buyer may only recover out-of-pocket expenses, such as the cost of a title search and inspection.

E. Equitable Conversion

• The doctrine of equitable conversion provides that once a contract for the sale of land is signed, the buyer is treated as the equitable owner of the property and bears the risk of loss.
• The seller retains legal title to the property until closing.
• This doctrine is a majority rule, but some states have adopted statutes that place the risk of loss on the seller.

F. Time is of the Essence

• If a contract specifies that “time is of the essence”, then the parties must perform their obligations by the date specified in the contract.
• If a party fails to perform by the deadline, the other party may be entitled to rescind the contract.

G. Fitness and Suitability

• Generally, a seller does not warrant the fitness or suitability of the property.
• The common law doctrine of caveat emptor (buyer beware) applies to real estate contracts.
• However, a seller has a duty to disclose any known material latent defects that are not readily observable by the buyer.
• Some states have adopted statutes that require sellers to disclose certain defects.

Mortgages/Security Devices

I. Types of Security Devices

A. Mortgages

• A mortgage is a security interest in real property that secures the repayment of a debt.
• A mortgage is typically evidenced by two documents:
• Mortgage deed: a document that conveys an interest in real property to secure the performance of a debt.
• Promissory note: a written promise to repay a debt.

1. Parties

• Mortgagor: The borrower who grants the mortgage to the lender.
• Mortgagee: The lender who receives the mortgage as security for the loan.

2. Creation

• A mortgage must satisfy the Statute of Frauds, meaning it must be in writing, signed by the mortgagor, and contain essential terms, including:
• identity of the parties
• description of the property
• amount of the debt
• interest rate
• maturity date

3. Types of Mortgages

• Purchase-money mortgage: A mortgage given to the seller of real property as part of the purchase price.
• A purchase-money mortgage typically has priority over other liens on the property.
• Future-advance mortgage: A mortgage that secures future advances of funds from the lender to the borrower.
• The priority of a future-advance mortgage depends on whether the future advances are obligatory or optional.
• Equitable mortgage: A mortgage that arises by operation of law rather than by express agreement.
• An equitable mortgage may occur when a deed absolute on its face is given as security for a debt.

4. Mortgage Theories

• Lien theory (majority rule): The mortgagee only has a lien on the property, and the mortgagor retains legal title.
• Title theory (minority rule): Legal title to the property is transferred to the mortgagee until the debt is repaid.
• Intermediate theory: A hybrid approach that combines elements of both the lien and title theories.

5. Transfers

a. By Mortgagor

• A mortgagor may transfer their interest in the property subject to the mortgage.
• Transfer “subject to” the mortgage: The transferee takes the property subject to the mortgage but does not assume personal liability for the debt.
• The original mortgagor remains personally liable on the mortgage.
• Transfer “assuming” the mortgage: The transferee assumes personal liability for the mortgage debt.
• Both the original mortgagor and the transferee are liable on the mortgage.
• Novation: A new contract between the mortgagee and the transferee that releases the original mortgagor from liability.
• Only the transferee is liable on the mortgage.
• Due-on-sale clause: A clause in a mortgage that allows the lender to accelerate the debt and demand full payment if the property is transferred without the lender’s consent.

b. By Mortgagee

• A mortgagee may transfer their interest in the mortgage to a third party.
• The mortgage and the promissory note are typically transferred together.

6. Discharge of Mortgage

• Payment: Full payment of the debt discharges the mortgage.
• Deed in lieu of foreclosure: The mortgagor conveys the property to the mortgagee in satisfaction of the debt.
• Foreclosure: The legal process by which a mortgagee sells the property to satisfy the debt.

a. Foreclosure Process

• Default: The mortgagor fails to make payments as required by the mortgage.
• Notice of default: The mortgagee notifies the mortgagor of the default and the lender's intent to foreclose.
• Foreclosure sale: The property is sold at a public auction.
• Proceeds from the sale are used to satisfy the mortgage debt, and any surplus funds are paid to the mortgagor.
• Deficiency judgment: If the proceeds from the foreclosure sale are insufficient to satisfy the debt, the mortgagee may obtain a deficiency judgment against the mortgagor for the remaining balance.

b. Equity of Redemption

• Equity of redemption: The mortgagor’s right to redeem the property by paying the outstanding debt before the foreclosure sale.
• This right cannot be waived in the mortgage.

c. Statutory Right of Redemption

• Statutory right of redemption: A right granted by some states that allows the mortgagor to redeem the property after the foreclosure sale by paying the full purchase price within a specified period.

B. Installment Land Contracts

• An installment land contract is a contract for the sale of real property in which the buyer makes payments to the seller over time and receives title to the property upon full payment.
• The seller retains legal title to the property until the buyer makes all payments.
• Installment land contracts are subject to the Statute of Frauds.

C. Absolute Deeds as Security

• An absolute deed is a deed that appears to convey absolute title to the grantee but is actually intended to be security for a debt.
• Parol evidence is admissible to prove the parties’ intent that the deed was intended as security.

Titles

I. Deeds

• A deed is a written instrument that conveys an interest in real property from the grantor to the grantee.

A. Requirements

• Writing: A deed must be in writing to satisfy the Statute of Frauds.
• Execution: The deed must be signed by the grantor.
• Delivery: The deed must be delivered to the grantee with the intent to transfer title.
• Delivery is typically presumed if the deed is recorded or if the grantee is in possession of the deed.
• Acceptance: The grantee must accept the deed.
• Description of the property: The deed must contain an adequate description of the property being conveyed.
• Identification of the parties: The deed must clearly identify the grantor and the grantee.

B. Types of Deeds

• Quitclaim deed: Conveys only the grantor’s interest in the property, without any warranties of title.
• Special warranty deed: Conveys the property with warranties that the grantor has not encumbered the property during their ownership but does not warrant against defects in title prior to their ownership.
• General warranty deed: Conveys the property with warranties that the title is free from all defects, regardless of when they arose.

1. Covenants of Title

• A general warranty deed typically includes the following covenants of title:

a. Present Covenants

• Covenant of seisin: The grantor warrants that they own the property being conveyed.
• Covenant of right to convey: The grantor warrants that they have the right to convey the property.
• Covenant against encumbrances: The grantor warrants that there are no undisclosed encumbrances on the property.

b. Future Covenants

• Covenant of warranty: The grantor warrants that they will defend the grantee’s title against any lawful claims.
• Covenant of quiet enjoyment: The grantor warrants that the grantee will not be disturbed in their possession of the property by a lawful claim of title.
• Covenant of further assurances: The grantor promises to perform any acts necessary to perfect the grantee’s title.

C. Merger

• The doctrine of merger provides that once a deed is delivered and accepted, the contract for the sale of the property merges into the deed.
• After merger, the buyer can only sue on the deed, not the contract.

II. Title Assurance System

• The title assurance system is a system of public records and private insurance that helps buyers and lenders determine the state of title to real property.

A. Recording Acts

• Recording acts are statutes that establish a system for recording documents affecting title to real property.
• The purpose of recording acts is to provide notice to the public of interests in real property and to protect bona fide purchasers from unrecorded interests.

1. Types of Recording Acts

• Race statute: The first party to record their deed prevails, regardless of whether they had notice of any prior unrecorded interests.
• Notice statute: A subsequent bona fide purchaser (BFP) prevails over a prior unrecorded interest if the BFP took without notice of the prior interest.
• Race-notice statute: A subsequent BFP prevails over a prior unrecorded interest only if the BFP took without notice of the prior interest and recorded their deed first.

2. Types of Notice

• Actual notice: A party has actual notice of a fact if they have actual knowledge of it.
• Constructive notice: A party has constructive notice of a fact if it is recorded in the public records.
• Inquiry notice: A party has inquiry notice of a fact if they are aware of facts that would lead a reasonable person to inquire further and that inquiry would reveal the fact.

3. Bona Fide Purchaser

• A bona fide purchaser (BFP) is a party who:
• purchases real property for value
• takes without notice of any prior unrecorded interests

B. Title Insurance

• Title insurance is a form of insurance that protects the insured against losses arising from defects in title to real property.

1. Title Search

• Before issuing a title insurance policy, the title company conducts a title search to examine the public records for any defects in title.

2. Title Insurance Policy

• The title insurance policy describes the property insured, the insured party, and the scope of coverage.
• The policy typically covers:
• defects in title that are discovered after the closing
• liens and encumbrances that were not disclosed in the title search
• forgery and fraud in the chain of title
• The policy does not cover:
• zoning violations
• environmental contamination
• boundary disputes

3. Title Insurance Premium

• The insured pays a one-time premium for the title insurance policy.

III. Special Problems

• After-acquired title: If a grantor conveys property that they do not own and later acquires title to the property, the title automatically vests in the grantee under the doctrine of estoppel by deed.
• Deeds recorded too early: A deed that is recorded before the grantor acquires title to the property may not be discovered in a standard title search and may not provide constructive notice to subsequent purchasers.
• Wild deeds: A deed that is recorded outside the chain of title and cannot be found through a standard title search.
• Improperly indexed deeds: A deed that is incorrectly indexed in the public records may not be discovered in a title search.

 

Secured Transactions Outline

I. General UCC Principles

A. Rules of Construction and Application (UCC § 1-101 et seq.)

• The UCC governs the sale of goods, displacing common law rules where there is a conflict. Goods are defined as movable items, excluding intangibles, money, legal claims, services, and real property.
• In hybrid contracts involving both goods and services, the predominant purpose test determines whether the UCC or common law governs.
• UCC provisions often contain special rules for merchants, defined as those with special knowledge or skill regarding the goods or practices involved. A person can be a merchant even if they only have knowledge of the goods or the practices, not necessarily both.

B. General Definitions and Principles of Interpretation (UCC § 1-201 et seq.)

• "Agreement": Under the UCC, the terms of an agreement include express terms, course of performance, course of dealing, and trade usage.
• Course of Dealing: A sequence of conduct concerning previous transactions between parties that establishes a common basis for interpreting their expressions and conduct. Course of dealing is admissible to explain or supplement a final written agreement, even if it is complete and exclusive.
• Trade Usage: Any practice or method of dealing observed so regularly in a place or trade that it justifies an expectation it will be observed in the transaction.

C. General Rules (UCC § 1-301 et seq.)

• Good Faith: Every contract or duty within the UCC imposes an obligation of good faith in its performance and enforcement. For merchants, good faith means "honesty in fact and the observance of reasonable commercial standards of fair dealing in the trade."
• Modification: UCC Article 2 states that good faith contract modifications do not require consideration.

II. Applicability and Definitions (UCC § 9-101 et seq.)

A. Subject Matter of Article 9 (UCC § 9-109)

• Article 9 governs transactions intended to create a security interest in personal property or fixtures, regardless of the transaction's form. It also covers certain non-security interests, including consignments exceeding $1,000, and sales of accounts, promissory notes, healthcare receivables, and commercial tort claims. Security interests in fixtures arise when goods become so related to real estate that an interest arises under real property law.
• Article 9 governs the creation, perfection, and enforcement of security interests, as well as priority disputes. A consignment is when a consignee sells property for a consignor.

B. Perfection of Security Interests in Multiple State Transactions (UCC § 9-301)

• Perfection puts the world on notice of the security interest. The location of the debtor generally dictates where to file for perfection. Filing a financing statement is generally how a security interest is perfected. Perfection makes secured parties’ rights fully enforceable.

C. Excluded Transactions (UCC § 9-109)

• Article 9 excludes landlord's liens, statutory liens, and wage assignments.

D. Definitions (UCC §§ 9-102 through 9-107)

• Account: Any right to payment for goods sold or leased or for services rendered. Upon default, the secured party can collect from the account debtor.
• Purchase Money Security Interest (PMSI): A security interest held by the seller to secure all or part of the purchase price, or by a lender who gives value to the debtor to acquire the collateral. A PMSI in consumer goods is perfected upon attachment.
• Control refers to having the right to sell or cash in an asset.

E. Classification of Goods (UCC § 9-102)

• Goods: All things movable when a security interest attaches.
• Consumer Goods: Used primarily for personal, family, or household purposes.
• Inventory: Goods held for sale or lease. The classification of goods depends on 1) the debtor's intent at the time of purchase and 2) the actual use of the goods, with some disagreement on which should govern.

F. Sufficiency of Description (UCC § 9-108)

• A security agreement must reasonably identify the collateral. Description by category is sufficient (e.g., "equipment"), but not super-generic descriptions like "all assets."

G. Security Interests Arising Under Article 2 (UCC § 9-110)

H. Priority of Consignments (UCC §§ 9-103, 9-324)

• The consignee is treated as having the consignor's rights and title to the consigned goods to protect the consignee's creditors. The consignor retains title to the consigned goods.

III. Validity of Security Agreements and Rights of Parties (UCC § 9-201 et seq.)

A. Title to Collateral Immaterial (UCC § 9-202)

• A security interest is enforceable regardless of whether the secured party or the debtor has title to the collateral.

B. Enforceability of a Security Interest (UCC § 9-203)

• A security interest attaches when it becomes enforceable.
• Attachment requires:
• A valid security agreement: The debtor must authenticate (sign) a security agreement that describes the collateral.
• Possession or control of collateral by the secured party can substitute for authentication in certain situations.
• The collateral description must reasonably identify the property. Specific listing or UCC type is sufficient, but super-generic descriptions like "all assets" are not.
• The debtor has rights in the collateral: The debtor must have more than mere possession; they must have a legal interest in the collateral.
• Value has been given by the secured party: This can be consideration, extending credit, accepting delivery, or satisfying a pre-existing claim.
• Future advances can be secured if explicitly included in the agreement.

C. After-Acquired Property and Future Advances (UCC § 9-204)

• A security interest can cover after-acquired property if the agreement explicitly states so.
• Exception: An after-acquired property clause is not effective for consumer goods unless acquired within 10 days of the secured party giving value or for commercial tort claims.

D. Use or Disposition of Collateral by Debtor (UCC § 9-205)

• A security agreement is not invalid just because the debtor can use or dispose of the collateral.

E. Collateral in Secured Party's Possession (UCC §§ 9-207, 9-208)

• A secured party in possession of the collateral must use reasonable care to preserve it.
• The secured party can charge the debtor for reasonable expenses incurred in caring for the collateral.
• The risk of loss or damage to the collateral remains with the debtor, even when the secured party possesses it.

F. Request for Accounting (UCC § 9-210)

• The debtor can request an accounting from the secured party, which must include information about the debt and the collateral.
• The secured party must respond within 14 days of receiving the request.
• The debtor is entitled to one free accounting every six months.

IV. Rights of Third Parties; Perfected and Unperfected Security Interests; Rules of Priority (UCC § 9-301 et seq.)

A. Priority over Unperfected Security Interests (UCC § 9-317)

• A perfected security interest has priority over an unperfected security interest.
• A lien creditor generally has priority over an unperfected security interest.

B. Requirement of Filing and Steps for Perfection (UCC §§ 9-308 through 9-316, 9-501 et seq.)

• Perfection generally requires filing a financing statement in the appropriate jurisdiction.
• The financing statement must contain the debtor's name, the secured party's name, a description of the collateral, and the filing fee.
• The debtor's signature is not required, but the filing must be authorized by the debtor.
• Perfection occurs when both attachment and the required perfection steps (e.g., filing) have been completed.
• Assignment of Security Interest (UCC §§ 9-514, 9-519)
• A secured party can assign its security interest to another party.
• The assignee steps into the shoes of the assignor and takes the assigned interest subject to all defenses the debtor could assert against the original secured party.

C. Protection of Buyers of Goods and Chattel Paper (UCC §§ 9-320, 9-330)

• Certain buyers take the collateral free of a security interest, even if it is perfected. These include:
• Buyers in the ordinary course of business: A person who buys goods in good faith, without knowledge that the sale violates a security interest, and from a seller in the business of selling goods of that kind.
• Buyers of consumer goods from other consumers: A person who buys consumer goods for value, without knowledge of the security interest, primarily for personal use, and before a financing statement covering the goods is filed.
• Protection of Holders and Purchasers of Negotiable Instruments (UCC § 9-331)
• Holders in due course and purchasers of negotiable instruments generally take the instrument free of any security interest. Information on negotiable instruments is not included in the sources.

D. Priority of Liens Arising by Law (UCC § 9-333)

• Liens arising by operation of law (e.g., statutory liens) may have priority over security interests, even perfected ones. The specific rules depend on the type of lien and the applicable state law.

E. Alienability of Debtor's Rights (UCC § 9-401)

• Generally, a debtor can transfer its rights in the collateral, subject to the existing security interest.

F. Priority among Conflicting Security Interests (UCC §§ 9-322 through 9-329)

• General Rule: The first to file or perfect has priority. This applies even if the first to file perfects later.
• Example: Bank A files a financing statement on January 1st but doesn't perfect until January 15th. Bank B files and perfects on January 6th. Bank A has priority because it filed first.
• Exceptions:
• PMSI in inventory: A PMSI in inventory has priority over a conflicting security interest if it is perfected when the debtor receives possession and notice is given to prior secured parties.
• PMSI in non-inventory: A PMSI in collateral other than inventory has priority over a conflicting security interest if it is perfected when the debtor receives possession or within 20 days after.
• Control over Collateral: A secured party with control over the collateral (e.g., a bank holding a deposit account) has priority over a secured party who only filed or perfected by another method.

G. Fixtures (UCC § 9-334)

• Fixtures are goods so attached to real estate that they become part of the real property.
• Perfection: A security interest in fixtures can be perfected by filing under Article 9 or by recording a fixture filing under real estate law.
• Priority: A security interest in fixtures is generally subordinate to a conflicting interest in the real property (e.g., a mortgage).
• Exceptions:
• PMSI in fixtures: A PMSI in fixtures generally prevails over prior real estate interests if perfected within 20 days of the goods becoming fixtures.
• Construction mortgages: A construction mortgage generally has priority over a fixture security interest that is perfected after the goods become fixtures but before construction is complete.

H. Accessions and Commingling (UCC §§ 9-335, 9-336)

• Accession: Goods physically united with other goods, but retaining a separate identity (e.g., a new engine installed in a car).
• Commingled goods: Goods that lose their separate identity when mixed with other goods (e.g., grain mixed in a silo).
• Priority: Generally, a security interest in an accession or commingled goods is subject to any existing perfected security interest in the whole. Special rules apply to determine priority among multiple security interests in accessions.

I. Subordination (UCC § 9-339)

• A secured party can agree to subordinate its priority to another secured party.

J. Defenses against Assignee; Modification of Contract (UCC §§ 9-404 through 9-406)

• An assignee of a security interest takes the interest subject to all defenses the debtor could raise against the assignor.
• A modification of the underlying contract between the debtor and the original secured party is effective against the assignee.

K. Termination Statement (UCC § 9-513); Release of Collateral (UCC § 9-512)

• Upon satisfaction of the debt, the secured party must file a termination statement to remove the financing statement from the public record.
• A secured party can release its security interest in all or part of the collateral.

V. Default (UCC § 9-601 et seq.)

A. Rights and Remedies on Default (UCC §§ 9-601 through 9-606)

• Upon the debtor's default, the secured party can:
• Seek possession of the collateral and sell it (disposition) or retain it (strict foreclosure).
• Sue for a judgment on the underlying debt.
• These remedies are cumulative, meaning the secured party can pursue any or all of them.
• Collection Rights (UCC § 9-607): The secured party can collect directly from the account debtor upon the debtor's default.
• Right to Take Possession and Dispose of Collateral (UCC §§ 9-608 through 9-624)
• The secured party can repossess the collateral without judicial process if it can be done without a breach of the peace.
• The secured party must provide reasonable notice to the debtor and other interested parties before disposing of the collateral.
• The notice must state the time and place of any public sale and must be given in time for the parties to protect their interests.
• The collateral can be disposed of by public or private sale, but the sale must be commercially reasonable.
• Strict foreclosure: The secured party can purchase the collateral at a public sale or, in limited circumstances, by private sale.
• Strict foreclosure requires the debtor's consent, either explicitly given after default or implied by failing to object to the secured party's proposal.
• Right of Redemption (UCC § 9-623): The debtor can redeem the collateral before the sale by paying the full debt plus reasonable expenses.
• The right of redemption cannot be waived before default.

B. Debtor's Rights (UCC §§ 9-625 through 9-628)

• The debtor has the right to receive notice of the disposition of the collateral.
• The debtor can redeem the collateral before the sale.
• The debtor can sue the secured party for damages if the secured party fails to comply with Article 9's requirements.
• The debtor may be entitled to statutory damages or actual damages for the secured party's non-compliance.
• A court may order the secured party to dispose of the collateral or refrain from disposing of it if the secured party is not complying with Article 9.

 

Torts Outline

Intentional Torts

I. General Requirements

To prove an intentional tort, the plaintiff must prove three elements:

1. Voluntary act: A conscious or willed act as opposed to a purely reflexive one.
2. Intent: Can be shown in one of two ways: a. The actor acts with the purpose of causing the consequence; or b. The actor acts knowing that the consequence is substantially certain to follow. c. Note that the tortfeasor does not have to intend to harm or injure, only to bring about the tortious result.
3. Causation: Defendant's conduct must have actually caused the harm.

II. Damages

1. General Damages: Except as noted, proof of actual damages is not required to succeed in an action for most intentional torts. Plaintiff may recover at least nominal damages.
2. Punitive Damages: If the plaintiff can demonstrate that the defendant acted maliciously, the plaintiff may seek punitive damages.
3. Injunctive Relief: The plaintiff may seek an injunction to prevent a repetitive trespass.

III. Transferred Intent

If the defendant acts with the necessary intent to inflict certain intentional torts, but causes injury to a different victim than intended, then the defendant's intent is transferred to the actual victim. This doctrine applies to:

1. Battery
2. Assault
3. False Imprisonment
4. Trespass to Land
5. Trespass to Chattels

IV. Types of Intentional Torts

1. Battery: a. Elements: i. The defendant acts with the intent to cause contact with the plaintiff's body. ii. The contact is offensive or harmful to an ordinary reasonable person. iii. Contact is offensive if the plaintiff did not permit it. iv. The defendant's contact with the plaintiff results in injury or harm. b. "Single-intent rule" (majority rule): Defendant may be liable if the defendant (i) intends to bring about the contact; the defendant need not intend (ii) that the contact is harmful or offensive.
2. Assault: a. Elements: i. The defendant intentionally places a person in reasonable apprehension of. ii. An imminent. iii. Harmful or offensive contact. b. Apprehension must be reasonable. c. Words alone are not enough, but words coupled with conduct can be sufficient.
3. False Imprisonment: a. Elements: i. The defendant intends to confine or restrain another within fixed boundaries. ii. The actions directly or indirectly result in confinement. iii. The plaintiff is conscious of the confinement or harmed by it. b. Shopkeeper's privilege: A shopkeeper is not liable for false imprisonment if the shopkeeper has a reasonable belief that the plaintiff has shoplifted and detains the plaintiff in a reasonable manner for a reasonable time to investigate. c. The plaintiff must be aware of the confinement or be harmed by it.
4. Intentional Infliction of Emotional Distress (IIED): a. Elements: i. The defendant intentionally or recklessly engages in. ii. Extreme and outrageous conduct. iii. That causes the plaintiff severe emotional distress. b. Intent: The defendant must intend to cause severe emotional distress or act with recklessness as to the risk of causing severe emotional distress. c. Extreme and outrageous conduct: Conduct that exceeds all bounds of decency tolerated in a civilized society.
5. Trespass to Land: a. Elements: i. Defendant intentionally causes a physical invasion of the land of another. ii. The defendant need not intend to trespass, only to enter the land. Mistake is not a defense. b. Trespass may be direct or indirect. i. Direct trespass: With the accused’s body. ii. Indirect trespass: When the accused causes an item or another person to enter upon the property. c. Trespass usually is considered a tort under civil law, but it may be a criminal offense under statutory law. However, it is not a crime in all jurisdictions.
6. Trespass to Chattels: a. Elements: i. The defendant intentionally interferes with the plaintiff’s right of possession of personal property. ii. The interference may be by dispossession (depriving the plaintiff of his lawful right of possession of the chattel) or by damage to the chattel. iii. The plaintiff must prove actual damages. b. Dispossession: A defendant is liable if he: i. Takes a chattel from the possession of another without the other's consent or ii. Otherwise interferes with the chattel for a substantial time. c. Damage: A defendant is liable if he: i. Harms a chattel while it is in the possession of another or ii. Interferes with another’s use or enjoyment of a chattel.
7. Conversion: a. Elements: i. The defendant intentionally exercises dominion or control over a chattel and ii. So seriously interferes with the right of another to control it that the defendant may justly be required to pay the other the full value of the chattel. iii. It is a serious and substantial interference with or destruction of another’s personal property. The substantial interference justifies the defendant paying the full value of the personal property. b. Factors considered when determining the seriousness of interference: i. The extent and duration of the defendant's exercise of dominion or control ii. The defendant's intent to assert a right in relation to the chattel iii. The defendant's good faith iv. The extent and duration of the resulting interference with the other’s right to control the chattel v. The harm done to the chattel vi. The inconvenience and expense caused to the other c. Remedies: The plaintiff may recover damages for the fair market value of the chattel at the time and place of the conversion or replevin.

Negligence

I. General Considerations

Negligence is conduct which falls below the standard of care established by law for the protection of others from an unreasonable risk of harm. Unlike intentional torts, negligence does not require a mental state. Negligence focuses on what the defendant should have known and done under the circumstances rather than what they actually knew or intended.

II. Elements

The elements of a negligence cause of action are:

1. Duty: A legal obligation to protect another against an unreasonable risk of injury. This duty is owed to all foreseeable persons who may be injured by the defendant's failure to meet a reasonable standard of care. Foreseeability of harm to another is sufficient to create a general duty to act with reasonable care. a. There can be no negligence unless there is a foreseeable risk of harm of sufficient magnitude that it should have been foreseen and guarded against.
2. Breach: The failure to meet that obligation. a. The defendant's conduct is compared to the standard of care of a reasonably prudent person under similar circumstances.
3. Causation: The close causal connection between the action and the injury. This involves two aspects: a. Actual cause: "But-for" test. The plaintiff must show that the injury would not have occurred "but for" the defendant's negligence. b. Proximate cause: The injury must be a foreseeable result of the breach. i. The "foreseeable plaintiff" requirement: A defendant is only liable to plaintiffs who were within the zone of danger created by the defendant's negligence. ii. The "foreseeable harm" requirement: The defendant is only liable for the types of harm that were foreseeable.
4. Damages: The loss suffered. The plaintiff must prove actual injury (personal injury or property damage). Nominal damages and attorney's fees are not permitted in negligence actions. a. The extent of damages need not be foreseeable.

III. Affirmative Duty to Act

Generally, a person does not have an affirmative duty to act to prevent harm to another.

Exceptions:

1. Special relationship: A duty to rescue or to control a third party's conduct exists if the defendant has a special relationship with either: a. The third party who committed the harm, or b. The injured party. c. Examples of special relationships: parent/child, employer/employee, custodial, property owner, psychotherapist/patient.
2. Defendant created the peril: If the defendant caused the danger, they have a duty to try to help.
3. Statutory duty: Some statutes impose a duty to act.
4. Contractual duty: A duty may arise from a contract.
5. Voluntary Undertaking: A defendant who voluntarily undertakes to aid or rescue another owes a duty of reasonable care in performing the rescue.
6. Good Samaritan Laws: These laws protect rescuers from liability for ordinary negligence.

IV. Standards of Care

1. Reasonable Prudent Person Standard: The defendant's conduct is measured against the conduct of a reasonably prudent person under the same or similar circumstances. a. Objective standard: Not based on the defendant's subjective mental state or capabilities, but what a reasonable person would have known and done in the same situation. b. Physical disabilities: The standard is adjusted for physical disabilities. The defendant is held to the standard of a reasonably prudent person with the same disability. c. Mental disabilities: Generally, the standard is not adjusted for mental disabilities. However, a sudden and unforeseeable incapacity can be a defense. d. Children: Children are held to a lower standard of care, that of a reasonable child of the same age, intelligence, maturity, training, and experience. This is a subjective standard. e. Professionals: Professionals are held to the standard of care of an ordinary member of the profession in good standing. i. Specialists: Specialists are held to a higher standard of care. f. Common carriers: Common carriers are held to a higher standard of care, that of the utmost care and vigilance.
2. Statutory Standard of Care (Negligence Per Se) a. Definition: A method of establishing negligence (i.e., that a defendant breached a duty of care) by showing that the defendant violated the law in some manner. b. Elements: i. A criminal or regulatory statute imposes a specific duty for the protection of others. ii. The defendant neglected to perform the duty. iii. The defendant is liable to anyone in the class of people intended to be protected by the statute. iv. The harm suffered is of the type the statute was intended to protect against. c. Causation: Once the elements of negligence per se are established, the defendant is liable for injuries that were proximately caused by the defendant's violation. d. Defenses: i. Compliance with the statute was impossible or more dangerous than noncompliance. ii. The violation was reasonable under the circumstances. iii. The defendant was unaware of the factual circumstances that made the statute applicable. e. In most jurisdictions, negligence per se allows the case to go to the jury and avoids a directed verdict in favor of the defendant (allows the plaintiff to make a prima facie case of negligence without direct evidence of negligence). The jury can infer negligence, but they need not.
3. Custom: Custom is evidence of the standard of care, but it is not conclusive. a. In professional malpractice cases, custom is generally conclusive evidence of the standard of care.
4. Res Ipsa Loquitur a. Definition: A doctrine that allows the factfinder to infer negligence based on circumstantial evidence when the plaintiff cannot prove the specific act of negligence that caused the injury. b. Traditional elements: i. The accident was of a kind that does not ordinarily occur in the absence of negligence. ii. It was caused by an agent or instrumentality within the exclusive control of the defendant. iii. The plaintiff did not contribute to the injury. c. Third Restatement approach: i. The accident is a type of accident that ordinarily happens as a result of negligence of a class of actors; and ii. The defendant is a member of that class. d. Procedural effect: Res ipsa loquitur allows the plaintiff to survive a motion for directed verdict and get the case to the jury. The jury can infer negligence but they are not required to.

V. Duty of Land Possessors

A land possessor's duty of care to people on their property depends on the status of the entrant.

1. Trespassers: A person who enters or remains on land without permission. a. Duty owed: Landowners have a duty to refrain from willful or wanton misconduct that would injure a trespasser. b. Unknown trespasser: No duty is owed except to refrain from intentional harm. c. Known trespasser (discovered or anticipated trespasser): Landowners have a duty to warn of or make safe known conditions if they are: i. Artificial ii. Highly dangerous iii. Concealed, and iv. The landowner knew of the condition. d. Attractive nuisance doctrine: Landowners owe a higher duty to child trespassers. If a landowner knows or has reason to know that children are likely to trespass and there is an artificial condition on the land that poses an unreasonable risk of death or serious bodily injury to children, the landowner must exercise reasonable care to eliminate the danger or otherwise protect the children.
2. Licensees: A person who enters land with the express or implied permission of the land possessor, but not for a business purpose. This includes social guests and those who enter for their own purposes. a. Duty owed: A duty to warn of known dangerous conditions that are concealed and not likely to be discovered by the licensee. No duty to inspect or repair.
3. Invitees: A person who enters land with the express or implied permission of the land possessor for a purpose connected with the business of the land possessor or as a member of the public for a purpose for which the land is held open to the public. a. Duty owed: A duty to exercise reasonable care in the maintenance of the property. This includes a duty to inspect the property, discover unreasonably dangerous conditions, and warn of or repair those conditions. The duty extends to conditions that the landowner should have discovered through reasonable inspection.

VI. Damages

1. Actual Damages: The plaintiff must prove actual injury (personal injury or property damage), not just economic loss. a. Nominal damages and attorney's fees are not permitted in negligence actions. b. The extent of damages need not be foreseeable.
2. Compensatory Damages: Damages intended to make the victim whole. This includes economic damages (e.g., medical expenses, lost wages) and noneconomic damages (e.g., pain and suffering, loss of consortium).
3. Parasitic damages: If a tort caused physical harm, emotional distress damages can be added (e.g., NIED claims).
4. Punitive Damages: Punitive damages are rarely awarded in negligence cases. To recover punitive damages, the plaintiff must prove that the defendant acted willfully, wantonly, recklessly, or with malice.
5. Duty to mitigate: The plaintiff has a duty to take reasonable steps to mitigate their damages, such as seeking medical treatment. a. This is not a duty owed to the defendant, but a failure to mitigate can reduce the plaintiff's recovery.
6. Collateral Source Rule: Total damages are not reduced by benefits received from other sources, such as insurance. However, other defendants can reduce their liability by the amounts paid by other sources.

VII. Defenses

1. Contributory Negligence: a. A complete bar to recovery in a minority of jurisdictions. If the plaintiff's negligence contributed to their injury, even slightly, they cannot recover damages from the defendant. b. Last clear chance doctrine: Allows the plaintiff to recover even if they were contributorily negligent if the defendant had the last clear chance to avoid the accident but failed to do so.
2. Comparative Negligence: a. The plaintiff's negligence reduces their recovery, but it does not bar recovery entirely unless their fault exceeds a certain threshold. b. Pure comparative negligence: The plaintiff's recovery is reduced by the percentage of their own fault. This is the majority rule on the MBE unless otherwise stated. c. Modified comparative negligence: The plaintiff can recover only if their fault is less than the defendant's fault (or in some jurisdictions, no more than the defendant's fault). If the plaintiff's fault meets or exceeds the threshold, they are barred from recovery.
3. Assumption of the Risk: a. Express assumption of risk: The plaintiff expressly agrees to assume the risk of harm from the defendant's negligence, usually in a contract. To be valid, the agreement must be: i. Clear and unambiguous ii. Voluntary, and iii. Not against public policy. b. Implied assumption of risk: The plaintiff's conduct implies that they knew of the risk and voluntarily proceeded in the face of the risk.
4. Superseding Cause a. An unforeseeable intervening cause that breaks the chain of causation between the defendant's negligent act and the plaintiff's injury, relieving the original tortfeasor of liability for lack of proximate cause. b. Examples: "Acts of God," criminal acts of third parties, intentional torts of third parties.

Strict Liability and Products Liability

I. Strict Liability

A. General

• Under strict liability, the defendant is liable for injuring the plaintiff regardless of whether the defendant exercised due care.
• This means the plaintiff does not have to show proof of fault.
• The plaintiff must prove duty (which is absolute), causation, and harm.

B. Categories of Strict Liability

• Abnormally dangerous activities:
• An abnormally dangerous activity is one that creates a foreseeable risk of serious harm even when reasonable care is exercised, and the activity is not a matter of common usage in the community.
• Examples: blasting, mining, explosives.
• Possession of animals:
• Wild animals: A defendant is strictly liable for foreseeable harms caused by wild animals.
• Examples of wild animals include: skunks, bears, monkeys.
• Strict liability is not available to a trespasser; the trespasser can sue under a theory of negligence but not strict liability.
• Domestic animals: Negligence must be shown if the harm is caused by a domestic animal (i.e., a pet or farm animal).
• Examples: dogs, cats, sheep, honey bees, rabbits, horses, cows.
• An owner of a domestic animal is strictly liable for injuries caused by the animal only if the owner knows or has reason to know of the animal’s dangerous propensities.
• Products Liability
• Elements:
• The defendant must be a merchant.
• The product must be defective at the time it left the defendant’s hands.
• The defect caused the plaintiff's injury.
• The product was being used in a reasonably foreseeable way.
• Types of Defects:
• Manufacturing defect: The product departs from its intended design and is more dangerous than expected.
• Design defect: The product is manufactured as intended but there is an alternative design that is safer, practical, and cost-effective. The plaintiff will not prevail if the defendant can show that the benefits of the design outweigh the risks and the feasibility of a safer design.
• Failure to warn: The manufacturer knew or reasonably should have known of a danger presented by the product and failed to adequately warn of that danger.
• Liability: Everyone in the chain of distribution is liable under a strict products liability theory. This includes the commercial seller, distributor, retailer, or seller.
• Damages:
• Personal injury and property damage are available.
• Pure economic loss is generally not permissible under a strict liability theory. These must be brought under a breach of warranty claim.
• Defenses:
• Assumption of the risk
• Comparative negligence
• Unforeseeable misuse of the product
• Contributory negligence (in contributory negligence jurisdictions)
• The product was materially altered before the injury occurred

C. Defenses to Strict Liability

• Comparative negligence: A plaintiff’s own negligence will reduce his recovery in a strict liability action.
• Contributory negligence: A complete bar to recovery in some jurisdictions. In most comparative fault jurisdictions, it has been merged into the comparative fault analysis and merely reduces recovery.
• Assumption of risk: The plaintiff’s assumption of the risk is a complete bar to recovery in contributory negligence jurisdictions. In most comparative fault jurisdictions, assumption of risk only reduces recovery. A plaintiff assumes the risk of injury if they expressly or impliedly consent to undergo the risk created by the defendant’s conduct.
• Duty to mitigate damages: The plaintiff has a duty to take reasonable steps to mitigate damages after the injury occurs. This is not a duty to the defendant but it may reduce the plaintiff's recovery.

Other Torts

I. Defamation

A. Generally

• Definition: Defamation is a tort that protects a person’s reputation. It involves a statement that adversely affects one’s reputation. It occurs when the defendant publishes defamatory material concerning the plaintiff that caused reputational harm.
• Elements:
• A defamatory statement about the plaintiff
• An unprivileged publication of the statement to a third party
• Fault (at least negligence)
• Damages
• Types of Defamation:
• Libel: A written, printed, or recorded statement. This includes TV and radio broadcasts, emails, and electronic communications. Damages are presumed.
• Slander: A defamatory statement that is spoken. The plaintiff must prove special damages (economic loss) unless it is slander per se.
• Slander per se: Damages are presumed if the slander falls into one of these four categories:
• Committing a crime of moral turpitude
• Suffering from a loathsome disease
• Unchastity if the plaintiff is a woman
• Something that reflects badly on the plaintiff’s business or profession

B. Defenses to Defamation

• Truth: An absolute defense to defamation.
• Absolute Privilege: Protects statements made:
• During judicial proceedings
• During legislative proceedings
• In executive communications
• Between spouses
• Qualified Privilege: This privilege protects statements made:
• When the speaker has an interest to protect
• When a third party’s interest is being protected
• When there is a common interest between the speaker and the recipient
• When there is a public interest in the statement being made

II. Intentional Infliction of Emotional Distress (IIED)

A. Definition

• IIED is a tort that allows a person to recover for severe emotional distress caused by another person’s outrageous conduct.
• Unlike negligent infliction of emotional distress (NIED), a plaintiff does not have to show physical harm to recover under IIED.

B. Elements

• The defendant’s conduct was extreme and outrageous
• The defendant acted intentionally or recklessly
• The defendant’s conduct caused the plaintiff severe emotional distress

III. Nuisance

A. Types of Nuisance

• Private nuisance:
• Definition: An activity that substantially and unreasonably interferes with another’s use and enjoyment of land.
• Elements:
• The defendant’s conduct substantially interferes with the plaintiff's use and enjoyment of their property
• The defendant’s conduct is unreasonable. This means the conduct must be annoying to an ordinary reasonable person. Someone who is hypersensitive may not have a cause of action. Someone who is not actually bothered may still have a cause of action for nuisance.
• Public nuisance:
• Definition: An unreasonable interference with a right common to the general public. This could be the public health, safety, or morals of the community.

B. Defenses to Nuisance

• Contributory negligence:
• Only a defense when the nuisance arises from the defendant’s negligence.
• Not a defense if the defendant's conduct is intentional or reckless.
• Only a defense if the plaintiff voluntarily and unreasonably subjected themselves to the risk of harm when the nuisance is caused by an abnormally dangerous activity.
• “Coming to the nuisance”: This is not a complete defense but it is a factor that may be considered in determining whether the defendant’s conduct was unreasonable or whether to grant an injunction.

IV. Trespass

A. Types of Trespass

• Trespass to land: Occurs when a person intentionally enters or causes something to enter the land of another without permission.
• Trespass to chattels: Occurs when a person intentionally interferes with another person's personal property.
• Interference: The defendant uses or borrows the chattel without authorization.
• Conversion: The defendant exercises dominion or control over the chattel and seriously interferes with the owner’s right to possess it. The defendant is liable for the full value of the property.

V. Misrepresentation

A. Intentional Misrepresentation (Fraud)

• Elements:
• False representation
• Must be about a material fact
• Can involve deceptive or misleading statements
• Can arise through concealing a material fact
• Generally, no duty to disclose material facts to other parties (may be an exception for fiduciary relationships)
• Scienter: Defendant knows or should know the statement is false and the plaintiff would consider it true. Defendant may be liable if the statement is made recklessly.
• Intent to induce reliance: Defendant makes the representation with the intent to induce reliance by the plaintiff.
• Causation: The misrepresentation must cause the plaintiff to act or refrain from acting.
• Justifiable reliance: Plaintiff’s reliance on the misrepresentation was justifiable.
• Damages: The plaintiff suffered actual economic loss.

B. Negligent Misrepresentation

• Elements:
• Business Capacity: Defendant makes a representation in the course of their business or in a transaction where the defendant has a pecuniary interest.
• Breach of Duty: The defendant owed a duty to a foreseeable plaintiff and did not exercise reasonable care or competence in obtaining or communicating information.
• Causing Damages: A plaintiff suffers a pecuniary loss by justifiably and actually relying on the representation.

C. Defenses to Misrepresentation

• Negligence defenses cannot be raised against intentional misrepresentation.
• Contributory or comparative negligence is a valid defense to negligent misrepresentation.

VI. Invasion of Privacy

A. Types of Invasion of Privacy Claims:

• Appropriation of name or likeness: Use of a person’s name or likeness without their consent for commercial purposes (e.g., for advertising or to endorse a product or service).
• Intrusion upon seclusion: An intentional intrusion into a person’s private affairs that would be highly offensive to a reasonable person (e.g., eavesdropping, spying, or taking photos in someone's home without permission).
• False light: Publicizing false information about a person that would be highly offensive to a reasonable person.
• Public disclosure of private true facts: Disclosing true facts about a person that would be highly offensive to a reasonable person and are not newsworthy.

B. Defenses to Invasion of Privacy

• Consent: Applicable to invasion of privacy torts.
• Qualified and absolute privilege: Applicable to “false light” and “public disclosure” claims.
• Truth: NOT a defense to invasion of privacy torts (unlike defamation).

VII. Interference with Business Relations

A. Intentional Interference with a Contract

• Elements:
• A valid contract existed between the plaintiff and a third party
• The defendant knew of the contractual relationship
• The defendant intentionally interfered with the contract
• The defendant’s interference caused a breach
• The plaintiff suffered damages

B. Intentional Interference with Prospective Contractual Relations

• Elements:
• The plaintiff had a reasonable expectation of economic advantage
• The defendant knew of the plaintiff’s expectation
• The defendant intentionally interfered with the plaintiff’s expectation
• The defendant’s interference was wrongful by some measure beyond the fact of the interference itself (e.g., by independently tortious means, or by threats or violence)
• The defendant’s interference caused the plaintiff’s damages

 

Trust, Wills, & Estates Outline

I. Intestate Succession

A. General Principles

• Intestate succession governs the distribution of property when an individual dies without a valid will.
• It also applies when a will fails to dispose of all property (partial intestacy).
• Rules of intestacy are determined by state statutes, often based on the Uniform Probate Code (UPC).
• Intestate succession rules apply to determine heirs when a will references "heirs".

B. Share of the Surviving Spouse

1. Decedent Not Survived by Descendants or Parents
• Surviving spouse inherits the entire estate.
2. Decedent Survived by Descendants
• Under many state statutes, the surviving spouse inherits one-half or one-third of the estate.
• The UPC provides variations depending on whether the descendants are also children of the surviving spouse and if the surviving spouse has other children.
• California: surviving spouse gets 100% of CP and at least 1/3 of SP depending on surviving kindred or issue.
3. Decedent Survived by Parents
• In some jurisdictions, a surviving parent is entitled to a nominal amount of the estate exceeding a certain value (e.g., $200,000).
• California: If decedent is survived by parents, surviving spouse gets ½ of SP, remainder to parents.

C. Share of Children and Remote Descendants

1. Surviving Spouse
• Descendants take the portion of the estate not passing to the surviving spouse.
2. No Surviving Spouse
• Estate is distributed to the decedent's descendants.
• Living children share equally.
• California: If no surviving spouse, SP passes to issue, then to parents, then to parent's issue, then to grandparents or their issue, then to predeceased spouse’s issue.
3. Child Predeceases Intestate Decedent
• Distribution methods address how to handle the share of a deceased child:
• Strict Per Stirpes: Estate is divided at the children's generation, with each line taking an equal share, regardless of living members.
• Modern Per Stirpes/Per Capita with Representation: Estate is divided at the closest generation with living descendants, with shares of deceased members passing to their descendants.
• Per Capita at Each Generation (UPC): Similar to Modern Per Stirpes, but shares are pooled at each generation and divided equally among representatives at the next level.
4. Adopted Children
• Generally treated the same as biological children for inheritance purposes.
• Equitable adoption may apply in some situations where formal adoption did not occur.
• California: Adopted person dies intestate - property is distributed among those who would have been kindred.
5. Children Born Out of Wedlock
• Inheritance through the mother is permitted in all states.
• Inheritance through the father requires proof of paternity.
• Uniform Parentage Act establishes paternity through acknowledgment, adjudication, or adoption.
• California: Natural parent may not inherit from the child unless they acknowledged the child.
6. Half-Blood Children
• Treated equally as whole-blood children in most states.

D. Share of Ancestors and Collaterals

1. Surviving Descendants or Spouse
• Ancestors and collaterals generally inherit nothing.
2. Surviving Parents, Siblings, or Descendants of Siblings
• Parents and siblings take in equal shares if there are no surviving spouse or descendants.
• Surviving parent takes a double share.
• Descendants of deceased siblings take per stirpes.
3. Descendants of Grandparents
• Inherit if there are no surviving descendants, spouse, parents, or siblings.
• Divided equally between maternal and paternal lines.
4. Descendants of Great-Grandparents
• Allowed to inherit in a minority of jurisdictions.
5. Escheat
• Property passes to the state if there are no heirs.

E. Advancements

• Lifetime gifts to heirs are considered advancements only if:
• The decedent declared the intent in a contemporaneous writing, OR
• The heir acknowledged the transfer as an advancement in writing.
• California: Inter vivos property given to heirs during decedent's lifetime is treated as an advancement only if the decedent declares it in writing, or the heir acknowledges it in writing.

F. Simultaneous Death

• Original USDA: Property passes as if each person survived the other if there is no sufficient evidence of who died first.
• Revised USDA and UPC: Requires clear and convincing evidence of survival by 120 hours to inherit.

II. Wills

A. General Principles

• A will allows individuals to control the distribution of their property after death.
• Courts strive to honor the testator's intent.
• Will must comply with specific legal requirements to be valid.

B. Execution Requirements

1. Governing Law
• The law of the decedent's domicile at death governs personal property distribution.
• Law of the jurisdiction where real property is located governs its distribution.
• California: Law where will was executed or where testator is domiciled governs validity.
2. Compliance with Law
• Will must comply with the law of the domicile at the time of execution or the law where it was executed.
3. Formal Requirements
• Writing: Will must be in writing.
• Signature: Testator must sign the will.
• Location of the signature can impact validity.
• Signature on the testator's behalf is allowed in some circumstances.
• Witnesses: Two or more witnesses are generally required.
• Witness requirements vary by state.
• Interested witnesses may be allowed under modern statutes.
4. Testamentary Capacity
• Testator must be 18 years old and of sound mind at the time of execution.
• Capacity requires understanding of:
• Nature and extent of property.
• Natural objects of bounty.
• Disposition being made.
• Testamentary plan.
5. Testamentary Intent
• Testator must intend the document to be their will.
• Must understand they are creating a document with legal effect after death.
• Generally must know and approve the contents of the will.

C. Types of Wills

1. Attested Will
• Meets the formal requirements of writing, signature, and witnesses.
2. Holographic Will
• Handwritten will.
• Material provisions must be in the testator's handwriting.
• Signed by the testator.
• Witnesses are not required.
• Some states require a date.
3. Nuncupative (Oral) Will
• Not permitted in most states, including those adopting the UPC.
• May be valid in some states for limited personal property dispositions made in contemplation of death.
4. Conditional Will
• Validity is conditioned upon an event.
• Courts may construe excess language as an explanation rather than a condition to uphold validity.

D. Components of a Will

1. Integration
• All pages present at execution and intended to be part of the will constitute the complete document.
2. Codicil
• A supplement or addition to a will.
• Must be executed with the same formalities as a will.
• Republishes the will as of the date the codicil is executed.
• May validate an invalid will.
3. Incorporation by Reference
• Allows incorporation of an existing document into the will if:
• It existed at the time of will execution.
• The will shows the intent to incorporate it.
• It is described with sufficient certainty for identification.
4. Acts of Independent Significance
• Permits designation of a beneficiary or disposition based on an act or event outside the will if it has significance apart from the will.
5. Personal Property List (UPC)
• Allows a separate list disposing of personal property (not money).
• Must describe beneficiaries and property with reasonable certainty.
• Can be created after the will is executed.
6. Dispositions to an Inter Vivos Trust
• Allows gifts to trusts in existence at death, even if created after the will.

E. Revocation

1. Methods of Revocation
• Subsequent Instrument: A later will or codicil can revoke a prior will in whole or in part.
• Physical Act: Burning, tearing, canceling, obliterating, or destroying the will with the intent to revoke.
• Requirements for revocation by physical act vary by jurisdiction.
• Operation of Law: Certain events, such as divorce or homicide, can revoke provisions.
2. Dependent Relative Revocation
• Allows a court to revive a revoked will if the testator revoked it based on a mistaken belief about the law or facts.
3. Revival
• Republication by Codicil: Executing a codicil to a revoked will can revive it.
• Intention to Revive: Some jurisdictions consider the testator's intent when reviving a previously revoked will.
4. Lost Wills
• If a will is lost, its proponent must prove its contents by clear and convincing evidence.

F. Contractual Wills

1. Requirements
• Must be in writing and signed by the party against whom enforcement is sought.
• May be established through:
• Provisions in the will.
• Express reference to a contract and extrinsic evidence.
• A signed writing evidencing the contract.
2. Joint Wills
• A single instrument serving as the will of multiple people.
• Does not create a presumption of a contract not to revoke.
3. Reciprocal Wills
• Separate wills with identical or reciprocal provisions.
• Does not create a presumption of a contract not to revoke.
4. Enforceability
• Enforceable only against the party who signed the contract.
• No remedy for breach while the testator is alive.

G. Will Contests

1. Grounds for Contest
• Lack of Testamentary Capacity: Testator lacked the mental capacity to execute the will.
• Undue Influence: Testator was coerced into making the will.
• Fraud: Testator was deceived into making the will.
• Mistake: Error in the will's execution or content.
2. Standing to Contest
• Only directly interested parties who stand to benefit financially can contest.
3. No-Contest Clauses
• Designed to deter contests by forfeiting the beneficiary's share if they challenge the will.
• Enforceability varies by jurisdiction.
• California: Enforceable unless the contest was based on forgery, revocation, improper execution, or fraud/undue influence.

H. Construction Problems

1. Lapsed Legacies
• A gift fails if the beneficiary predeceases the testator.
• Anti-lapse statutes may substitute beneficiaries, typically descendants of the deceased beneficiary.
• California: Anti-lapse statute applies unless the will states otherwise. Gift passes to issue of the intended beneficiary.
2. Ademption by Extinction
• Applies only to specific bequests.
• Gift fails if the property is no longer in the testator's estate at death.
• Traditional Approach (Identity Theory): Focuses on whether the specific property is in the estate.
• UPC Approach (Intent Theory): Considers the testator's intent.
3. Ademption by Satisfaction
• A gift may be satisfied by an inter vivos transfer if that was the testator's intent.
• UPC: Requires an express writing to presume satisfaction.
4. Abatement
• Occurs when the estate's assets are insufficient to satisfy all gifts.
• Gifts are reduced in a specific order to cover debts and expenses.
• California: Abatement follows the order of intestate property, residuary devises, general devises, demonstrative devises, and specific devises.
5. Ambiguities and Mistakes
• Extrinsic evidence is generally admissible to resolve ambiguities but not to correct mistakes.
• Courts may consider surrounding circumstances to determine the testator's intent.
6. Exoneration of Liens
• Common Law: Beneficiary of encumbered property could have the lien paid from the estate.
• Most states (UPC): Beneficiary takes subject to the lien.
7. Gifts to Classes
• A gift to a group of people described collectively.
• Class remains open until the named person dies or the gift becomes possessory.
• Common Law: Deceased member's share passes to their estate.
• UPC: Deceased member's share may pass to their issue.

I. Non-Probate Transfers

1. Will Substitutes
• Methods of transferring property outside of probate.
2. Revocable Trusts
• Allow the settlor to retain control over assets during their lifetime.
• Assets pass to beneficiaries outside of probate upon the settlor's death.
3. Pour-Over Wills
• A devise of property to a trust created during the testator's lifetime.
• Property passes according to the trust's terms.
4. Other Will Substitutes
• Bank accounts and securities registered in beneficiary form.
• Payable-on-death clauses in contracts.
• Life insurance proceeds payable to a named beneficiary.
• Joint tenancy with right of survivorship.
• Tentative (Totten) Trusts.

III. Family Protection

A. Spouse's Forced or Elective Share

1. Purpose
• Protects a surviving spouse from disinheritance.
2. Elective Share
• Allows the spouse to choose between taking under the will or taking a statutory share of the estate.
3. Waiver
• Spouse can waive the elective share in writing after fair disclosure.
• California: Omitted spouse receives their share of CP and up to ½ share of SP unless:
• Omission was intentional
• Decedent provided a substitute transfer outside the will
• Waiver agreement exists.
4. Augmented Estate
• The elective share is calculated based on an augmented estate, including certain non-probate assets.
• California: No augmented estate. Spouse gets 100% of CP and a share of SP depending on survivors.

B. Share of After-Born or Pretermitted Child

1. Omitted Child
• A child born or adopted after the will's execution who is not provided for in the will.
• California: Pretermitted child gets an intestate share unless:
• Omission was intentional
• Decedent provided a substitute transfer outside the will
• Decedent had other children and left the estate to the omitted child's other parent.
2. Intestate Share
• Omitted child is generally entitled to an intestate share unless the omission was intentional or other provisions were made.
• California: Omitted child receives intestate share, unless the omission was intentional, the decedent provided for the child outside of the will, or the decedent had other children and left the estate to the omitted child's other parent.

C. Homestead Allowance and Exempt Property

1. Homestead Allowance
• Allows the surviving spouse and minor children to live in the family home for a certain period.
2. Exempt Property
• Permits the surviving spouse to claim specific personal property of the decedent up to a certain value.

D. Limitations on Charitable Bequests

• Mortmain laws, which historically limited charitable bequests, have been largely abolished.

IV. Living Wills and Durable Health Care Powers

A. Purpose

• Allow individuals to express their wishes regarding medical treatment if they become incapacitated.

B. Living Will

1. Instructions for Medical Treatment
• Specifies life-prolonging measures to be taken or withheld if terminally ill or incapacitated.
2. Requirements
• Must be in writing, signed, and witnessed.

C. Durable Health Care Power of Attorney

1. Appointment of Agent
• Designates an agent to make healthcare decisions on the individual's behalf.
2. Scope of Authority
• Agent can make any healthcare decision the principal could make if they had capacity.
3. Requirements
• Must be in writing, signed, and may require witnessing.

D. Revocation

• Advance health care directives can be revoked by the principal at any time.

E. Agent's Authority

1. Executed Power of Attorney
• Agent must act in accordance with the durable health care power of attorney.
2. Family Consent Laws
• May allow family members to make decisions if no agent is designated or the power of attorney is unclear.
3. Effective Period
• Continues until the principal's death or revocation, even if the principal becomes incapacitated.

F. General Considerations

• Advance healthcare directives must comply with state laws.
• Consultation with an attorney is recommended to ensure proper execution and compliance with legal requirements.

Trusts & Estates Outline

I. Trusts

A. What is a Trust?

• A trust is a fiduciary relationship in which a trustee holds legal title to property for the benefit of beneficiaries.
• Bifurcated transfer: A trust involves a split of legal and equitable title to property.
• The trustee holds legal title and manages the property.
• The beneficiary holds equitable title and is entitled to the benefits of the property.

B. Types of Trusts

1. Express Trusts

• Express Trust: Created when the settlor clearly expresses the intent to create a trust and complies with the requisite formalities.
• Private express trust: A trust created for the benefit of specific, ascertainable beneficiaries.
• Charitable trust: A trust created for a charitable purpose that benefits the public or a segment of the public.
• Elements:
• Intent: Settlor must manifest present intent to create a trust for the benefit of ascertainable beneficiaries.
• No specific words required but the settlor must intend to create the legal relationships and duties characteristic of a trust.
• Precatory language: Words merely expressing a wish or hope for the use of property are generally insufficient to create a trust. However, courts will examine all facts and circumstances to determine the settlor's intent.
• Trust Property (Res): There must be identifiable trust property (res) that is described with reasonable certainty and segregated from the settlor's other property.
• Invalid for lack of assets: If a trust is initially invalid for lack of assets, it will become valid if the settlor later funds the trust and re-manifests intent to create a trust.
• Valid Trust Purpose: The trust's purpose must be lawful and not contrary to public policy.
• Ascertainable Beneficiary: The beneficiaries must be identifiable or ascertainable.
• Honorary Trust: A trust for a non-charitable purpose with no ascertainable beneficiary, generally invalid.
• Disclaimer: A beneficiary may disclaim their interest, treating them as predeceasing the distribution.
• Trustee: The trust must have a trustee who holds legal title and manages the trust property.
• The court will appoint a trustee if the settlor fails to designate one.
• The sole trustee cannot be the sole beneficiary.

2. Inter Vivos Trusts

• Inter vivos trust: Created during the settlor's lifetime.
• Elements:
• Delivery: Must accompany the declaration of trust if a third-party trustee is named. Settlor must part with dominion and control over the trust property.
• Writing: Required only for real property under the Statute of Frauds. A constructive trust may be imposed if a writing is lacking.
• Parol Evidence: Evidence outside the written trust agreement is admissible only to show the settlor's intent if the writing is ambiguous.

3. Testamentary Trusts

• Testamentary trust: Created by the terms of a valid will.
• Takes effect only upon the testator's death.
• Types:
• “Secret” Trust: A testamentary gift that appears absolute but relies on the beneficiary's promise to hold and administer the property for another. A constructive trust is imposed on the property for the intended beneficiary.
• “Semi-Secret” Trust: A testamentary gift directed to be held in trust, but the testator fails to name a beneficiary or specify trust terms. A resulting trust is imposed, holding the property for the testator's heirs.

4. Pour-Over Trusts

• Pour-over trust: A provision in a will that directs property to an existing inter vivos trust upon a specified event (usually the testator's death).
• Valid even if the trust was not executed in accordance with the Statute of Wills, as long as the trust is identified in the will and its terms are in writing.
• Benefits:
• Avoids probate.
• Allows the settlor to make changes to the trust during their lifetime.

5. Remedial Trusts

• Remedial trusts: Created by operation of law as an equitable remedy, not driven by intent.
• They are passive trusts where the trustee's sole duty is to convey the property to the rightful owner.
• Types:
• Resulting Trust: Arises when an express trust fails or partially fails, or when there is an excess of trust property. The trustee holds the property for the benefit of the settlor or the settlor's estate.
• Constructive Trust: Imposed to prevent unjust enrichment due to fraud, duress, undue influence, or breach of duty. The trustee holds the property for the benefit of the person who was wrongfully deprived.

6. Other Types of Trusts

• Revocable Trust: Can be amended or revoked by the settlor during their lifetime.
• The majority rule presumes trusts are irrevocable unless stated otherwise.
• The UTC presumes trusts are revocable unless stated otherwise.
• Irrevocable Trust: Cannot be amended or revoked by the settlor.
• Mandatory Trust: Trustee is required to make specific distributions.
• Discretionary Trust: Trustee has discretion over distributions.
• Support Trust: Distributions are made to support the beneficiary's needs.
• Spendthrift Trust: Protects the beneficiary's interest from creditors and alienation.

C. Trustee Powers and Duties

• Trustee's Powers: Derived from the trust instrument, state law, court decrees, and implied powers necessary to carry out the trust's purposes.
• Power to settle or abandon claims, borrow money, sell or lease trust assets, and incur reasonable expenses for maintaining trust property.
• Trustee's Duties: Owed to the beneficiaries and enforceable by them.

1. Duty of Loyalty and Good Faith

• Duty of Loyalty: Requires the trustee to act solely in the best interests of the beneficiaries.
• Self-Dealing: Prohibited. Trustee cannot engage in transactions with the trust for personal benefit, even if fair and in good faith.
• Exceptions: Self-dealing may be permitted if authorized by the settlor, court order, or all beneficiaries. However, the transaction must still be fair and reasonable.
• Conflicts of Interest: Trustee must avoid situations that place their personal interests in conflict with the beneficiaries' interests.
• Assessed under a "reasonable and in good faith" standard.

2. Duty of Care (Prudence)

• Duty of Care: Requires the trustee to exercise reasonable care, skill, and caution in managing trust property.
• Prudent Person Rule: Trustee must manage the trust as a prudent person would manage their own affairs.
• Prudent Investor Rule: Requires prudent and reasonable investments, considering economic conditions, diversification, and preservation of capital.
• Duty to Make Property Productive: Trustee must pursue all claims, maximize income from investments, sell assets when appropriate, secure insurance, pay expenses, and act promptly in all matters.
• Duty to be Impartial: Trustee must balance the interests of present and future beneficiaries, considering income needs and preservation of principal.

3. Other Duties

• Duty to Inform and Account: Trustee must disclose complete and accurate information about the trust property to beneficiaries and provide regular accountings.
• Duty of Prudent Administrator: Requires the trustee to administer the trust as a prudent person would, including securing possession of property, maintaining real property, segregating personal and trust assets, and earmarking trust assets.
• Duty to Perform Personally: Trustee cannot delegate duties except for tasks that would be unreasonable to perform personally.
• Modern law allows for delegation of investment and management functions, but the trustee must exercise reasonable care in selecting, establishing the scope of authority, and monitoring the agent.

D. Modification and Termination

1. Termination

• Automatic Termination: Occurs when the trust purpose is accomplished.
• Termination by Consent: All beneficiaries and the trustee consent, and the settlor is deceased or has no remaining interest.
• Termination by Court Order: Occurs if the trust purpose has been achieved or becomes illegal, impracticable, or impossible.
• Expiration: Occurs at the end of the term specified in the trust instrument.

2. Modification

• Settlor's Intent: The settlor must expressly reserve the right to modify or terminate the trust.
• Modification by Consent: All beneficiaries consent, and the modification does not interfere with the primary purpose of the trust.
• Judicial Modification: May be allowed to reflect the settlor's wishes or due to changed circumstances.
• Deviation: Modification to adjust to unforeseen circumstances while still fulfilling the trust's purpose.
• Cy Pres: Modification to achieve a charitable purpose as near as possible to the settlor's original intent when the original purpose becomes impracticable or impossible.

E. Beneficiary Rights and Creditor Claims

• Alienation: Beneficiary's interest is freely alienable unless restricted by the trust instrument or a statute.
• Creditor Rights: Creditors can generally reach the beneficiary's interest unless there are restrictions like spendthrift provisions.
• Spendthrift Trust: Limits the beneficiary's ability to transfer their interest and protects the trust property from creditors.
• Exceptions: Certain creditors can reach trust property, including:
• Spousal or child support
• Creditors providing necessities to the beneficiary
• Government claims (e.g., tax liens)

F. Principal and Income

• Traditional Approach:
• Life beneficiaries were entitled to income generated by trust property (interest, dividends, etc.).
• Remainder beneficiaries were entitled to the principal upon termination of the trust.
• Modern Approach (UPAIA):
• Focuses on the total return of the trust portfolio.
• Allows trustee to re-characterize and reallocate items between principal and income to fulfill trust purposes and treat beneficiaries fairly.
• Factors to consider include the settlor's intent, trust purpose, beneficiary circumstances, economic conditions, and tax consequences.

G. Powers of Appointment

• Power of appointment: Allows the holder (donee) to direct the distribution of property, typically trust property, to others.
• Types:
• General power: No restrictions on the donee's ability to appoint the property.
• Special power: Limits the donee's ability to appoint the property to a specific class of people.
• Exercise: Donee must manifest intent to exercise the power in a valid instrument (e.g., a will) and comply with any conditions set by the donor.

II. Future Interests

A. Introduction

• Future Interest: A present right to possess property in the future.
• Possessory Estate: The current right to possess property.

B. Fee Simple Interests

• Fee Simple Absolute: Full ownership with unlimited duration and no conditions.
• Fee Simple Determinable: Ownership that automatically ends upon the occurrence of a specified event, at which point the property reverts to the grantor.
• Fee Simple Subject to Condition Subsequent: Ownership that may be terminated by the grantor upon the occurrence of a specified event.

C. Future Interests of the Grantor

• Possibility of Reverter: Automatically arises when the grantor conveys a fee simple determinable.
• Right of Entry: Arises when the grantor conveys a fee simple subject to a condition subsequent.
• Reversion: Arises when the grantor conveys a lesser estate than they own (e.g., a life estate).

D. Future Interests of Transferees

1. Remainders

• Remainder: A future interest that becomes possessory upon the natural termination of the preceding estate.
• Types:
• Vested Remainder: No conditions precedent for the remainder to become possessory.
• Passes to the remainderman's heirs if they die before the preceding estate terminates.
• Contingent Remainder: Subject to a condition precedent for the remainder to become possessory.

2. Executory Interests

• Executory Interest: A future interest that cuts short a prior estate or divests a vested remainder.
• Types:
• Springing Executory Interest: Divests the grantor's interest in the future.
• Shifting Executory Interest: Divests another transferee's interest in the future.

E. Rule Against Perpetuities

• Purpose: Prevents interests from being tied up indefinitely in the future.
• Rule: An interest must vest, if at all, within 21 years after the death of some life in being at the creation of the interest.
• Modern Approaches: Many states have adopted the "wait and see" approach, which waits to see if the interest actually vests within the perpetuities period.
• Cy Pres: Courts may modify a grant to comply with the Rule Against Perpetuities.

III. Construction Problems

A. Gifts to Classes

• Class Gift: A gift to a group of individuals described collectively (e.g., "my children").
• Class Closing: When any class member becomes entitled to a distribution.
• Death of Class Member Before Distribution:
• Common law: Deceased member's share passes to their estate.
• UPC: Deceased member's share may pass to their issue (descendants) unless the trust specifies otherwise.

B. Gifts to Heirs

• Heirs: Individuals who would inherit under the intestacy laws if the decedent died without a will.
• Interpretation: The scope of "heirs" or "family" depends on the trust instrument and circumstances.

C. Ademption

• Ademption: When a specific gift in a will fails because the property is no longer in the testator's estate at their death.
• Types:
• Ademption by Extinction: Property specifically bequeathed is no longer owned by the testator at death.
• Exception: UPC may allow the devisee to receive replacement property if the testator acquired it as a replacement for the specifically devised property.
• Ademption by Satisfaction: Testator gives the property to the beneficiary during their lifetime.

D. Abatement

• Abatement: Reduction or elimination of gifts in a will when the estate's assets are insufficient to satisfy all bequests.
• Order of Abatement:
• Property not disposed of by the will
• Residuary gifts
• General gifts
• Specific gifts

E. Lapsed Legacies

• Lapse: Occurs when a beneficiary named in a will predeceases the testator.
• Anti-Lapse Statute: May save a gift from lapsing if the predeceasing beneficiary was a close relative of the testator and left surviving descendants.

F. Ambiguities and Mistakes

• Plain Meaning Rule: Courts will generally uphold the plain meaning of the will even if there is evidence of a mistake.
• Ambiguities: Extrinsic evidence is admissible to resolve patent and latent ambiguities in the will.
• Mistakes: Extrinsic evidence is admissible to show a mistake in the execution of the will.

G. Will Contests

• Grounds: Lack of testamentary capacity, undue influence, fraud, mistake, or improper execution.
• Standing: Only those with a potential pecuniary interest in the estate have standing to contest a will.

H. Non-Probate Transfers

• Non-Probate Transfers: Ways to transfer property outside of probate, such as:
• Inter Vivos Gifts: Requires intent, delivery, and acceptance.
• Gifts Causa Mortis: Gifts made in contemplation of imminent death.
• Joint Tenancy: Property passes to the surviving joint tenant(s) automatically.
• Revocable Trusts: Assets held in a revocable trust avoid probate.
• Pay-on-Death Accounts: Bank accounts or securities that designate a beneficiary to receive the funds upon the account holder's death.
• Life Insurance: Proceeds paid to a named beneficiary outside of probate.