The Area of law is

Agency

With a focus on
Actual Express Authority
The Rule is

Actual Express authority: A principal is liable for contracts entered into by the agent when the
agent acted with actual or apparent authority to bind the principal. Actual express authority is
created by using written or spoken words, clear direct and definite language, or specific detailed
terms and instructions. For actual express authority to exist, the agent must have the subjective
intent believing that what he is doing is what the principal wants him to do. In other words, the
principal makes a manifestation that causes the agent to reasonably believe that the agent is
authorized to act on the principal's behalf.
 The Area of law is
Agency

With a focus on
Actual Implied Authority
The Rule is

Actual Implied Authority: a principal gives the agent actual implied authority when the principal
communicates to the agent by using word, written or spoken or other conduct to convey authority
to the agent to take whatever steps are necessary to achieve the principal's objectives. The agent
has actual implied authority (unless instructions to the contrary) to act within the accepted
business custom or general usage.
The Area of law is
Agency

With a focus on
Apparent Authority
The Rule is

Apparent authority: The principal creates apparent authority through words, written or spoken
that cause a 3rd party to reasonably believe that the agent can act on behalf of the principal
because the principal has consented to have acts done on the principals behalf. Apparent
authority exists until the principal notifies the 3rd party of the revoked authority.
Apparent Authority in Torts: A principal is liable for a tort committed by an agent with apparent
authority when the agent's appearance of authority enables him to commit a tort or conceal its
commission. For apparent authority to exist, a third person must believe that the agent acted
with actual authority, and such belief must be reasonable and be traceable to a manifestation by
the principal.
Derives from reasonable reliance of a 3rd party on the agent's authority based on the principal's
behavior over a period of time.
An agent purporting to be acting for a principal gives an implied warranty of authority to the
third party. If the agent lacks the power to bind the principal, then a breach of the implied
warranty has occurred, and the agent is liable to the third party.
The Area of law is
Agency

With a focus on
Contract Liability
The Rule is

A principal is liable for the contracts that an agent enters on behalf of the principal when the
principal has authorized the agent to enter into the contract and the agent acted with legal
authority. An agent acts with legal authority when there is
(1) actual express authority
(2) actual implied authority
(3) Apparent authority
(4) Ratification.
 The Area of law is
Agency

With a focus on
Creating Agency Relationship
The Rule is

Creating an agency relationship requires

(1) Assent - principal and the agent manifest assent to work with one another
(2) Benefit - the agent agrees to work for the principal's benefit and
(3) control - the agent agrees to work subject to the control of the principal.
No consideration is required to create an agency relationship. However, an agency relationship
can be terminated in many ways including the principal manifesting a desire to discontinue the
relationship. If one of the parties disclaims that an agency relationship existed, the Courts will
look to manifestations of assent.
 The Area of law is
Agency

With a focus on
Disclosed or Partially Disclosed
Principle
The Rule is

Disclosed Principal: When the agent acts on behalf of the principal and the principal's identity is
disclosed the 3rd party and the principal are parties to the contract.
Partially Disclosed: A principal is partially disclosed if the third party has notice of the principal's
existence but not the principal's identity. Unless the agent and the third party agree otherwise, an
agent who enters into a contract on behalf of a partially disclosed principal becomes a party to
the contract.
The Area of law is
Agency

With a focus on
Estoppel
The Rule is

A person who has not represented that an individual is authorized to act as an agent may be
estopped from denying the existence of an agency relationship or an agent's authority with
respect to a transaction entered into by the agent. Estoppel applies when a third party is
justifiably induced to make a detrimental change in position because that third party believed the
transaction was entered into for the principal and either the principal:
i) Intentionally or carelessly caused the belief; or
ii) Having notice of such belief and the possibility that the belief might induce others to change
their positions in reliance on it, failed to take reasonable steps to notify them of the facts.
In short, a principal, or purported principal, is liable for the appearance of authority arising solely
from the principal's failure to take reasonable steps and use ordinary care.
The Area of law is
Agency

With a focus on
Ratification
The Rule is

If the principal ratifies an agent's action, the principal is bound the action as if the principal had
authorized the agent, even if the agent acted without authority. Ratification occurs when a
principal affirms a prior act that was done on the principal's behalf. The principal must (i) ratify
the entire contract, (ii) have legal capacity to ratify the transaction, (iii) ratify in a timely manner,
and (iv) have knowledge of the material facts involved in the original act.
Regardless of whether the principal is liable, the agent can be liable for violating a contract or
committing a tort regardless of his status as an agent. If the agent binds the principal to the
contract, or if the principal ratifies the contract, then both the principal and agent are parties to
the contract with the third party
 The Area of law is
Agency

With a focus on
Undisclosed Principle
The Rule is

Undisclosed Principal: An undisclosed principal is when the third party does not know of the
agent's status as an agent and is unaware of the principal's existence or identity. When the agent
enters into a contract on behalf of an undisclosed principal, the agent and the third party are
parties to the contract. Thus, the agent becomes liable to the third party on the contract unless the
agent informs the third party of the identity or the existence of the principal. Whether the
undisclosed principal becomes a party to the contract depends on if the agent had authority to
bind the principal to the contract. If the agent had the authority to bind the principal to the
contract, then both the principal and agent are parties to the contract with the 3rd person.
Once the third party discovers the existence of the principal, the election of remedies doctrine
requires the third party to choose to hold liable either the principal or the agent.
The Area of law is
Agency

With a focus on
Vicarious Liability
The Rule is

Employee/Employer: Under the doctrine of vicarious liability or respondent superior a principal

may be liable for the tortious acts of his agent when
(1) the employer has the right to control the means and methods by which the other person
performs his tasks or achieves a result.
(2) the person is an employee and not an independent contractor where there is no right to
control
(3) the tort committed by the agent was committed while the agent was acting within the scope
of employment.
Conduct within the scope of employment: includes acts that the employee is employed to
perform or that were intended to profit or benefit the employer. Careful instructions given by the
employee do not protect the employer from liability even when the employee acts counter to
those instructions as long as the employee is acting within the scope of employment.
To determine whether a person acted within the scope of employment : courts distinguish
between a frolic and a detour. A frolic is when the employee's actions majorly deviate from the
assigned work duties or path and fall outside the scope of employment. A detour is a minor
deviation from the agents work duties and fall within the scope of employment.
If an employee travels during the workday for a personal errand it may be considered to fall
withing the scope of employment if the errand is merely a detour
Intentional Torts: intentional torts generally falls outside the scope of employment, and the
employer would not be liable unless the conduct occurred within the general space and time
limits of the employment. The agent was motivated in some part to benefits the principal and the
act is the kind of act that the agent was hired to do.
The Area of law is
Agency

With a focus on
Who is the Agent?
The Rule is

A person or an entity who has minimal capacity and a minor may serve as an agent so long as
they can (1) assent to the agency relationship, perform the tasks on behalf of the principal and are
subject to the principal's control.
An independent contractor is one who, by virtue of his contract, possesses independence in the
manner and method of performing the work he has contracted to perform for the other party to
the contract. Independent contractors are usually paid by the job instead of receiving ongoing
salaries; the individual who hires an independent contractor typically does not supervise the
contractor's activities or retain a right to control his activities.
 The Area of law is
Agency

With a focus on
Who is the principal?
The Rule is

Any person or entity that has legal capacity can be a principal. Exceptions minors and anyone
incapacitated by illness or intoxication cannot be a principal. Unincorporated associations cannot
be principals because they lack legal capacity.
Generally, employers exert a great amount of control over their employees conduct and have
control over their day to day activities such as giving them tools to work at the workplace,
paying them on a structured pay period and directing the ways in which the employees should
finish and perform the tasks.
The Area of law is
Civil Procedure

With a focus on
Answers
The Rule is

The failure to respond constitutes an admission, so the usual practice is a boilerplate, general
denial of everything not specifically admitted.
An answer must be served within 21 days of the service of the pleading to which it responds
Amendment after close of discovery: Generally, the Defendant's answer must state any
avoidance or affirmative defense that the defendant has, or that is deemed waived. However, the
Rules also provide those pleadings can and should be amended by leave of the court when justice
requires it. Courts will generally permit the Amd. unless it would result in undue prejudice to the
opposing party.
 The Area of law is
Civil Procedure

With a focus on
Appeal - Standards of Review
The Rule is

Questions of Law - Appellate review is de Novo - Ask: Did the trial court make an error? Was
the error prejudicial?
Findings of Fact look to determinations of the fact-finder - Jury verdict must be affirmed if
sponsored by substantial evidence. Judge's findings of fact must be affirmed unless they are
clearly erroneous.
Mattes of Discretion - Standard of appellate review is abuse of discretion. Any reasonable
decision will be upheld. Admissibility of evidence - abuse of discretion
The Area of law is
Civil Procedure

With a focus on
Appeals
The Rule is

Final Judgment Rule states that ordinarily, appeals are available only from a final judgment and
Judgment becomes final when entered by clerk on the court docket (i.e., not when announced)
A notice of appeal must be filed within 30 days
Interlocutory Orders are immediately appealable as of right, including any order granting or
modifying an injunction and any order that changes or affects possession of property
Collateral orders are also immediately appealable. The collateral order doctrine allows
immediate appeal if the order conclusively determines the disputed question; resolves an
important issue completely separate from the merits of the action; and is effectively
unreviewable upon appeal
 The Area of law is
Civil Procedure

With a focus on
Choice of Law & Erie
The Rule is

Diversity Jx : A federal court sitting in diversity must apply the substantive law of the state in
which it sits, including that state's choice-of-law rules.
If there is no Federal Statute or law on point, the court must determine whether to follow state
law (i.e., the matter is deemed “substantive†) or to follow federal law (i.e., the matter is
deemed “procedural†).
The general rule is to follow state law for substantive issues that govern conduct (i.e. burdens of
proof, statutes of limitations, permissible defenses, etc.) and to follow federal procedural law
(i.e., timing requirements)
The Area of law is
Civil Procedure

With a focus on
Claim Preclusion
The Rule is

Claim Preclusion: The doctrine of claim preclusion (res judicata) provides that a final judgment
on the merits of an action precludes the parties from successive litigation of an identical claim in
a subsequent action. For claim preclusion to apply, the claimant and the defendant must be the
same (in the same roles) in both the original action and the subsequently filed action. Claim
preclusion is limited to the parties (or successors in interest), similar action by a different party
would not be precluded.
The Area of law is
Civil Procedure

With a focus on
Class Action
The Rule is

Prerequisites for a class action are numerousness (i.e., too many parties to be joined
conventionally); common question of law or fact; typicality of claims by the class
representatives; and adequacy of representation.
Burden is on proponent of class certification to establish that these prerequisites are met
If class action is brought under diversity jurisdiction named representatives must be completely
diverse from defendants and at least one plaintiff has a claim worth over $75,000.
The Class Action Fairness Act (CAFA) Allows very large class actions, involving at least 100
members with more than 5 million at stake. Only minimal diversity required (i.e. any plaintiff
diverse from any defendant)
The Area of law is
Civil Procedure

With a focus on
Discovery - Scope
The Rule is

Scope of Discovery: Discovery is generally permitted with regard to any non-privileged matter
relevant to any party's claim or defense in the action. Information within the scope of discovery
need not be admissible in evidence to be discoverable. The test is whether the information
sought is relevant to any party's claim or defense. In general, a party may not discover
documents and tangible things that are prepared in anticipation of litigation or for trial by or for
another party or its representative. Such materials will be subject to discovery, however, if the
party shows that it has substantial need for the materials to prepare its case and cannot, without
undue hardship, obtain their substantial equivalent by other means.
Failure to Preserve ESI: A party may request the other party to produce and permit the inspection
of any discoverable documents or electronically stored information. Emails are discoverable if
they relate to the foundation and may be relevant to the litigation. A party may be subject to
sanctions for failing to take reasonable steps to preserve electronically stored information that
should have been preserved in the anticipation or conduct of litigation.
Sanctions: If a party failed to preserve electronically stored information that should have been
preserved and it cannot be restored or replaced, the court may order sanctions against the
wrongful party. The court may: (i) upon finding prejudice to another party, order measures no
greater than necessary to cure the prejudice, or (ii) upon finding that the party acted with the
intent to deprive another party of the information, may presume the lost information was
unfavorable to the party, instruct the jury that it may or must presume the information was
unfavorable, or dismiss the action or enter a default judgment.
The general rule with discovery is relevance, so You can discover anything that might be
admissible at trial or that might lead to something that might be admissible at trial, so long as it is
proportional to the needs of the case.
Exceptions to discovery include work product (documents and things prepared in anticipation of
litigation or for trial. REMEMBER: you can NEVER discover the mental impressions of an
attorney, BUT this rule creates a qualified immunity from discovery that can be overcome only if
the party seeking discovery shows a need for the document or things; and that the information
cannot be obtained elsewhere.
The Area of law is
Civil Procedure

With a focus on
Discovery - Types
The Rule is

Oral Depositions: Questions are asked and answered orally and under oath. Limited to 10
depositions, unless the court allows more. Each is limited to one day of seven hours, unless the
court allows more. can require the deponent to
Written Deposition: Questions asked in writing are delivered to an officer who asks the questions
orally and the witness answers orally under oath. Rarely used because they are so inflexible
Interrogatories: Questions asked in writing to be answered under oath in writing that may only be
used against a party. Presumptively limited to 25 interrogatories, unless the court allows more.
Responses required within 30 days.
Discovery & Inspection of Documents & Land: Called a request to produce and permit
inspection. Applies only to document, things, and land under the control of the party. The thing
to be produced and inspected must be described with particularity. Response is due within 30
days
Physical & Mental Examinations: Available only against a party and are only permitted when the
parties physical or mental condition is in controversy. Only for good cause shown
Requests for Admission: Used to streamline litigation, but a failure to respond within 30 days is
an admission.
 The Area of law is
Civil Procedure

With a focus on
Diversity Jurisdiction
The Rule is

Under federal law, a U.S. District Court has diversity jurisdiction over a matter if no plaintiff
shares the state of citizenship of any defendant and the amount in controversy in the case exceeds
$75,000.
SMJ not Waivable: The court lacked jurisdiction because there was not complete diversity
among the parties. Under federal law, a U.S. District Court has diversity jurisdiction over a
matter if no plaintiff shares the state of citizenship of any defendant and the amount in
controversy in the case exceeds $75,000. Further, the defense of lack of subject matter subject
matter jurisdiction may be raised at any time throughout litigation, as it is not waivable.
Diversity jurisdiction exists for controversies between a citizen (or citizens) of a state & a citizen
(or citizens) of a foreign country.
A citizen of a foreign country who has been admitted to the United States as a permanent
resident is treated as a citizen of the state in which domiciled.
FF&C under DJX : Under the U.S. Constitution, state courts are required to give full faith and
credit to the judgments of other states. State courts are likewise required to treat federal
judgments as those judgments would be treated by the federal courts. A party against whom
enforcement of a judgment is sought may collaterally challenge the original state judgment based
on lack subject matter jurisdiction, only if the jurisdictional issues were not litigated or waived in
the original action.
 The Area of law is
Civil Procedure

With a focus on
In Personam Jurisdiction
The Rule is

In Personam Jurisdiction: can be General (Plaintiff can assert any claim whatsoever, even if
unrelated to defendant's contacts with the forum state.) or Specific (Plaintiff's claims against the
defendant must arise out of - or directly relate to - the defendant's contacts with the forum.)
Bases include Physical presence in the state (exception: if a person was in the state only to
answer a summons and persons brought to the state by force or fraud.), Domicile, Consent,
Corporations (generally the forum state)
Federal Interpleader Act: allows nationwide service of process
Bulge Provision: Allows service anywhere within 100 miles of the federal courthouse even if in
another state, and two situations: For impleading third-party defendants under rule 14 (3rd party
claimants); and For joining necessary parties under rule 19 (Joinder of required parties)
 The Area of law is
Civil Procedure

With a focus on
In Rem Jurisdiction and Quasi
in Rem
The Rule is

In Rem Jurisdiction: suit against any kind of property, real or personal (the res) so long as the
property is located in the state where you are suing, and it can settle everyone in the world's
claim against that property (i.e., the state has physical power over the property).
Quasi in Rem: suit to adjudicate the claim to property of a particular defendant or defendant; the
subject matter of the suit may or may not be related to the property. Subject to the same
minimum contacts as in personal jurisdiction.
The Area of law is
Civil Procedure

With a focus on
Injunctions
The Rule is

Temporary Restraining Order: A temporary restraining order (TRO) preserves the status quo of
the parties until there is an opportunity to hold a full hearing on whether to grant a preliminary
injunction. A TRO has immediate effect and lasts no longer than 14 days unless good cause
exists. A TRO can be issued without notice to the adverse party if the moving party can show (1)
that immediate and irreparable injury will result prior to hearing the adverse party's arguments
and (2) the efforts made at giving notice and the reason why notice should not be required.
Additionally, the party seeking a TRO must post a bond to cover the costs in the event the TRO
is issued wrongfully.
Preliminary Injunction: A preliminary injunction can be issued if the opponent is given notice
and the court holds a hearing on the issue. A party seeking a preliminary injunction must
establish that: (1) the party is likely to succeed on the merits; (2) the party is likely to suffer
irreparable harm in the absence of relief; (3) the balance of equities is in his favor; and (4) the
injunction is in the best interest of the public. Additionally, the party seeking the preliminary
injunction must provide a bond to cover the costs in the event the preliminary injunction is issued
wrongfully.
 The Area of law is
Civil Procedure

With a focus on
Intervention & Joinder
The Rule is

Intervention as of Right: Under Rule 24, a nonparty has the right to intervene in an action when,
upon timely motion,
(1) the nonparty has an interest in the subject matter of the action;
(2) the disposition of the action may impair the nonparty's interests; and
3) the nonparty's interest is not adequately represented by existing parties. The burden is on the
party seeking to intervene.
Cross Claim: The Rules provide that an answer may state as a cross-claim any claim against a
co-defendant, as long as the cross-claim arises out of the same event that is the subject of the
original claim.
Cross-claim: Allowing someone to join a cross-claim is appropriate because the cross-claim
arises out of the same transaction or occurrence as the original claim, it involves the same factual
and legal issues, and it will likely be relevant to present the same eyewitness evidence in support
of proof of both claims.
FQ : Fed. district cts. have original jurisdiction over all civil actions “arising under
Constitution, laws, or treaties of the US.â€
Supplemental Jx : When a federal district court has jurisdiction over a claim, the court can assert
supplemental jurisdiction over additional claims over which the court would not independently
have subject matter jurisdiction if they arise out of a “common nucleus of operative fact.â€
The Area of law is
Civil Procedure

With a focus on
Issue Preclusion
The Rule is

Issue Preclusion: The doctrine of issue preclusion (collateral estoppel) precludes the relitigation
of issues of fact or law that have already been necessarily determined by a judge or jury as part
of an earlier claim. Unlike claim preclusion, issue preclusion does not require strict mutuality of
parties, but only that the party against whom the issue is to be precluded (or one in privity with
that party) must have been a party to the original action. Other elements necessary for issue
preclusion to apply are that
(i) the issue sought to be precluded must be the same as that involved in the prior action;
(ii) the issue must have been actually litigated in the prior action;
(iii) the issue must have been determined by a valid and binding final judgment; and
(iv) the determination of the issue must have been essential to the prior judgment.
 The Area of law is
Civil Procedure

With a focus on
Joinder, Intervention, &
Interpleader
The Rule is

All claims between the same plaintiff and the same defendant may be joined
Permissive Joinder
- Any number of plaintiffs may join if they assert claims arising out of the same transaction
or occurrences or series of transactions or occurrences; and there was a common question of law
or fact
- Any number of defendants may be joined in the same action if the claims against them
arise out of the same transaction or occurrences (or series); and there is a common question of
law or fact. (subject to SMJ)
Compulsory Joinder applies to necessary and indispensable parties. A necessary party is a person
whose participation in the lawsuit is necessary for adjust adjudication because absent that party,
complete relief cannot be accorded to the existing parties; and the necessary party has an interest
in the litigation which will be impeded if the litigation goes forward without that party (risk of
prejudice to the absentee); or there is a substantial risk of double or inconsistent liability.
Necessary parties must be joined if feasible. Feasible if it will not deprive the court of SMJ (e.g.
will not destroy complete diversity) and The court can assert personal jurisdiction over the
necessary party.
If a necessary party cannot be joined, the court decides whether to: Continue without the
necessary party (typically the case) or Dismiss the suit (rare) (i.e., the party is described as being
indispensable)
Intervention as of right may be had when the outsider claims an interest in the subject matter of
the lawsuit that, as a practical matter, may be compromised by the disposition of the pending
action.
Permissive Intervention may be allowed whenever there is a common question of law or fact
between the intervenors claim and the main claim (very relaxed standard). Must ask the courts
permission - matter of the courts sound discretion.
Intervention must be timely and the standard is “reasonable promptness†and There is no
supplemental jurisdiction for either kind of intervention when jurisdiction is based on diversity.
Interpleader is generally used to resolve the problem of competing claims to the same property.
It is designed to avoid inconsistent obligations are multiple claims.
Rule Interpleader there must be an independent basis of federal jurisdiction such as diversity or a
federal question jurisdiction. If the action is based upon diversity jurisdiction, the amount or the
value of the assets in question must exceed $75,00
Statutory Interpleader: The statute allows federal courts to hear cases with
(i) minimal diversity among the competing claimants;
(ii) where the property in dispute is worth at least $500 (there are other provisions which we
won't discuss in this post). Minimal diversity means that at least two competing claimants are
citizens of different states. The stakeholder's citizenship does not matter.
Impleader is a device by which the defendant brings into the suit someone who is or may be
liable to the defendant for all or part of the plaintiff's claims against him. It comes with the
court's supplemental jurisdiction, but plaintiff cannot make a claim against the 3rd party unless
diversity is met
 The Area of law is
Civil Procedure

With a focus on
Judgment as a Matter of Law,
Renewed Motion for Judgment
as a Matter of Law, and Motion
for a New Trial
The Rule is

Judgment as a Matter of Law is Essentially a motion for summary judgment after the trial has
begun.
Standard: viewing the evidence in the light most favorable to the other party, the evidence cannot
support a verdict for that party, and the moving party is therefore entitled to judgment as a matter
of law.
A Renewed Motion for Judgment as a Matter of Law is made at the close of all of the evidence
and denied by the court may be renewed after the jury returns a verdict.
The Standard is the same: the evidence cannot support the jury's verdict and the moving party is
therefore entitled to judgment as a matter of law, but a prior motion is required: it is a condition
precedent to a post-verdict motion that the motion for JMOL has been made at the close of all
evidence
A motion for a new trial us usually made with Renewed Motion for Judgment as a Matter of
Law, but it not restricted in the same way. A new trial can be granted for legal errors, newly
discovered evidence, prejudicial misconduct by a lawyer, party, or a juror, or judge concludes
that the verdict is against the great weight of the evidence, either in substance of the verdict or
amount of damages awarded.
If the court determines that a verdict was seriously excessive, then it may offer a remittitur to
reduce the verdict and Grant a new trial on the condition that the remittitur is not accepted. Note:
can decrease, but cannot increase award
 The Area of law is
Civil Procedure

With a focus on
Personal Jurisdiction
The Rule is

You must always ask 2 questions: Has the basis for exercising PJ over an out-of-state defendant
been authorized by statute or by rule of the court? And Is the particular basis for exercising
personal jurisdiction permitted by the due process clause of the US Constitution?
Remember: due process requires minimum contacts between defendant and forum state such that
it's consistent with traditional notions of fair play and substantial justice to sue the defendant
here.
Lack of personal jurisdiction CAN be waived, but only if raised at the first opportunity or it is
waived. If defendant chooses to file a pre-enter motion to dismiss, must make the objection then
or waive it, or if the defendant does not file a pre-answer motion, must be raised in the answer.
 The Area of law is
Civil Procedure

With a focus on
Personal Jurisdiction
The Rule is

You must always ask 2 questions: Has the basis for exercising PJ over an out-of-state defendant
been authorized by statute or by rule of the court? And Is the particular basis for exercising
personal jurisdiction permitted by the due process clause of the US Constitution?
Remember: due process requires minimum contacts between defendant and forum state such that
it's consistent with traditional notions of fair play and substantial justice to sue the defendant
here.
Lack of personal jurisdiction CAN be waived, but only if raised at the first opportunity or it is
waived. If defendant chooses to file a pre-enter motion to dismiss, must make the objection then
or waive it, or if the defendant does not file a pre-answer motion, must be raised in the answer.
The Area of law is
Civil Procedure

With a focus on
Pleadings
The Rule is

The complaint must include: short and plain statement of the courts subject matter jurisdiction; a
short and plain statement showing the claimant is entitled to relief; and a claim for the remedy
sought by the pleader
Recovery is not limited by the claim for relief as stated in the complaint except for default
judgment. You get what you prove, not what you ask for
The federal rules typically only require notice pleading, in which case all that is required is short
and plain statement of the claim showing that the pleader is entitled to relief.
Under the two-step inquiry, identify allegations that are “conclusory†“or “near legal
conclusions†Then look at remaining, factual, allegations, and ask whether they add up to a
“plausible†case for recovery. “Plausible†falls somewhere between
“probable†and merely “conceivable†or “possible.â€
A pleading may be amended once as of right within 21 days of service of the pleading or within
21 days of the defendant's response, if there is one. After that, leave to amend must be sought
from the ct.
 The Area of law is
Civil Procedure

With a focus on
Pre-Answer Motions
The Rule is

Amend. MTD as long as amend. b4 court rules on motion: Under Rule 12(h)(1), if a party makes
a pre-answer motion, the motion must raise the defense of insufficient service of process in the
pre-answer motion, or the defense is waived. However, courts have generally allowed a party to
amend a motion to dismiss to raise an omitted ground if the party acts promptly and before the
court rules on the original motion and there would be no undue prejudice to the opposing party.
MTD Failure to state a claim -insufficient process of service : A defendant may file a motion
under Federal Rule of Civil Procedure 12(b) to raise several different defenses, including failure
to state a claim on which relief can be granted and insufficient service of process. These
defenses must be raised in the first pre-answer motion (or if none, in the answer), or else they are
generally waived. Under the “omnibus motion†rule, when a party makes a pre-answer
motion raising one of these defenses but omitting the others, the party may not make another pre-
answer motion raising one of the omitted defenses that was available to the party when the
earlier motion was filed. The party is deemed to have waived the excluded defenses. Rule
12(g)(2), (h)(1)(A). Although not specifically provided for in the Rules, courts have allowed
generally a party to amend a motion to dismiss to raise an omitted ground if the party acts
promptly and before the court rules on the original motion.
Motion for a judgment on the pleadings is applied when the pleadings agree entirely on facts and
only the law is in dispute. If there's any element of factual dispute, you have a case for summary
judgment.
Motion for a more definite statement asks that the pleading be made more specific, but this is
disfavored by judges.
The Area of law is
Civil Procedure

With a focus on
Pretrial Conference
The Rule is

Pretrial Conference must be attended attorneys who will conduct the trial. Each side must file a
pretrial statement detailing claims and defenses, itemization of damages, requests for stipulations
and admissions, list of all witnesses and exhibits, etc. Failure to comply usually means that the
attorney pays the costs and the other side's attorney's fees
 The Area of law is
Civil Procedure

With a focus on
Removal Jurisdiction
The Rule is

Generally, the defendant in any civil action filed in state court has the right to remove a case to
the district court for the district in which the state court action was filed as long as the civil
action is within the original jurisdiction of a U.S. district court. Federal courts may exercise
original diversity jurisdiction over actions when (1) the parties to an action are citizens of
different states and (2) the amount in controversy in the action exceeds $75,000.
The Area of law is
Civil Procedure

With a focus on
Service of Process
The Rule is

FRCP allow service by delivering summons and complaint to the individual personally or by
“leaving a copy of each at individual's dwelling or usual place of abode with someone of
suitable age and discretion who resides there,†delivery to an authorized agent is also
acceptable. For persons in foreign countries, service can be made by registered mail, return
receipt requested.
For in rem and quasi in rem actions you must make a diligent effort to locate all claimants to the
property (res) and serve them personally. If the claimants cannot be located, then notice by
publication is permitted.
You cannot rely on notice by publication if you actually know or can readily find out the names
and addresses of the other claimants; they must be served personally
Insufficient Process Federal Law vs. State law: Pursuant to the Federal Rules of Civil Procedure
(FRCP), service on a U.S. corporation may be effected either by delivering the summons and
complaint to an officer, managing agent, general agent, or agent appointed or authorized by law
to receive process, or by following state law in the state where the district court is located or
where service is made. If a procedural issue in a diversity action is addressed by a valid federal
law, then the federal law will be applied, even if a state rule or statute is in conflict.
 The Area of law is
Civil Procedure

With a focus on
Subject Matter Jurisdiction
The Rule is

There is no waiver for lack of SMJ and lack of SMJ cannot be waived by failing to object or by
affirmative consent. Lack of SMJ can be raised by any party at any time, including the court
Remember: Removal moves case from state court to federal court; Transfer moves case from one
Federal Court to another federal court; There is no procedure for removal of case from federal
court to state court. Removal is proper only if the case should have been brought originally in
federal court and only a defendant may remove, but ALL defendants must consent to removal
within 30 days.
For Federal question, look to the well pleaded complaint rule federal question jurisdiction based
on whether the federal question appears on the face of the well-pleaded complaint without
making conclusory statements
Removal based on diversity is proper only if the AIC & complete diversity requirements are met
and the action is brought in a state in which no defendant is a citizen.
 The Area of law is
Civil Procedure

With a focus on
Subject Matter Jurisdiction
The Rule is

There is no waiver for lack of SMJ and lack of SMJ cannot be waived by failing to object or by
affirmative consent. Lack of SMJ can be raised by any party at any time, including the court
Remember: Removal moves case from state court to federal court; Transfer moves case from one
Federal Court to another federal court; There is no procedure for removal of case from federal
court to state court. Removal is proper only if the case should have been brought originally in
federal court and only a defendant may remove, but ALL defendants must consent to removal
within 30 days.
For Federal question, look to the well pleaded complaint rule federal question jurisdiction based
on whether the federal question appears on the face of the well-pleaded complaint without
making conclusory statements
Removal based on diversity is proper only if the AIC & complete diversity requirements are met
and the action is brought in a state in which no defendant is a citizen.
 The Area of law is
Civil Procedure

With a focus on
Subject Matter Jurisdiction -
Supplemental Jurisdiction
The Rule is

Supplemental Jurisdiction: allows a federal court with subject matter jurisdiction over a case to
hear additional claims over which the court would not independently have jurisdiction if all of
the claims constitute the same case or controversy (i.e., if they arise out of the same common
nucleus of operative fact)
A counterclaim does not have to meet the $75,000 requirement if the counterclaim is compulsory
(i.e. arises out of the same transaction or occurrence
Cross Claims need an independent basis and must be related to a claim over which the court has
subject matter jurisdiction (i.e., “anchoring†claim)
 The Area of law is
Civil Procedure

With a focus on
Summary Judgement
The Rule is

A motion for summary judgment should be granted if the pleadings, discovery, and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any material fact
and that the movant is entitled to judgment as a matter of law. A genuine issue of material fact
exists when a reasonable jury could return a verdict in favor of the non-moving party. In ruling
on a motion for summary judgment, the court is to construe all evidence in the light most
favorable to non-moving party & resolve all doubts in favor of the non-moving party.
 The Area of law is
Civil Procedure

With a focus on
Termination without trial
The Rule is

Includes Judgment on the pleadings; Default judgment (defendant has not shown up); Voluntary
dismissal (dismissal without prejudice); Involuntary dismissal (dismissal with prejudice); and
Summary judgment
Voluntary Dismissal is ordinarily without prejudice. Plaintiff a right to voluntary dismissal once
at any time prior to the defendant serving an answer or motion for summary judgment. The
defendant's motion to before filing an answer does not cut off the right to a voluntary dismissal.
After a defendant has filed an answer or motion for summary judgment, or if the plaintiff has
already voluntarily dismissed once, plaintiff must seek leave of court for dismissal without
prejudice. Plaintiff will have to pay the costs if she ends up later filing the same action against
the same defendant.
Involuntary Dismissal is typically with prejudice. Involuntary dismissal for lack of jurisdiction,
improper venue, or failure to join an indispensable party is without prejudice. In all other cases,
involuntary dismissal is with prejudice.
Dismissal with prejudice is an adjudication on the merits, which means that, under federal law,
given full res judicata (preclusive) affect, which bars any attempt at re-litigation of same claims.
May be imposed for plaintiff's failure to prosecute or for failure to comply with FRCP or any
court order. Standard for appellate review is abuse of discretion.
 The Area of law is
Civil Procedure

With a focus on
Venue & Forum Selection
The Rule is

Change of Venue: For the convenience of the parties and in the interests of justice, a district court
may transfer any civil action to any other district or division where it might have been brought.
Venue is proper in a judicial district where any defendant resides, Where a “substantial part of
the events or omissions†on which the claim is based occurred or where a “substantial part
of the property†that is the subject of the action is located.
Transfer with Forum Selection clause: Venue on Forum When transfer is based on a forum
selection clause in a contract, the clause is accorded respect. If the clause specifies a federal
forum, most circuit courts treat the clause as prima facie valid, to be set aside only upon a strong
showing that transfer would be unreasonable and unjust or that the clause was invalid for reasons
such as fraud or overreaching. Furthermore, the Supreme Court held that a forum selection
clause should be given “controlling weight in all but the most exceptional cases,†even if
the clause is unenforceable under applicable state law.
Transfer to where venue is proper: Generally, if the venue of an action is transferred where the
original venue is proper, the court where the action is transferred must apply state law of the
transferor court, this includes the state's rules regarding conflict of law. However, when venue is
transferred based on a valid forum selection clause, transferee court must apply the law,
including the choice-of-law rules, of the state in which it is located. The transferee court should
not apply the law of the transferor court because the parties have contractually waived their right
to the application of that law by agreeing to be subject to the laws of the transferee venue
 The Area of law is
Commercial Paper

With a focus on
Holder in Due Course
The Rule is

A holder in due course (HDC) takes a negotiable instrument for value, in good faith, and without
notice of any defects or claims against the instrument. An HDC has special rights, including
immunity from certain defenses.
The Area of law is
Commercial Paper

With a focus on
Negotiability
The Rule is

An instrument is negotiable if it is in writing, signed by the maker or drawer, contains an

unconditional promise or order to pay a fixed amount of money, is payable to order or bearer,
and is payable on demand or at a definite time.
 The Area of law is
Conflicts of Law

With a focus on
Governmental Interest
Approach
The Rule is

It is presumed that the forum state will apply its own law, but parties may request that another
state's law be applied because that state has a greater interest in the outcome...
 The Area of law is
Conflicts of Law

With a focus on
Party Controlled Choice of Law
Rules
The Rule is

A valid agreement with effective COL clause; Applicable to the lawsuit under the terms of the
contract; Reasonably related to the lawsuit; and Not in violation of the public policy of the forum
state or another interested state...
The Area of law is
Conflicts of Law

With a focus on
Wills & Estates
The Rule is

Questions regarding the transfer of personal property from someone who dies intestate or who
has a will are governed by the law of the deceased's domicile at the time of death. Questions
regarding the transfer of real property from someone who dies intestate or who has a will are
governed by the law of the situs.
 The Area of law is
Conflicts of Law

With a focus on
Constitutional Limitations
The Rule is

Due process - under the Due Process Clause of the 14th Amd., a forum state may apply its own
law to a particular case only if it has a significant contact or a significant aggregation of contacts
with the state such that a choice of its law is neither arbitrary nor fundamentally unfair
Full Faith & Credit - Under the U.S. Constitution, state courts are required to give full faith and
credit to the judgments of other states. State courts are likewise required to treat federal
judgments as those judgments would be treated by the federal courts.
A party against whom enforcement of a judgment is sought may collaterally challenge the
original state judgment based on lack subject matter jurisdiction, only if the jurisdictional issues
were not litigated or waived in the original action.
The Area of law is
Conflicts of Law

With a focus on
Contracts
The Rule is

Default rules - generally apply unless another state is found to have a more significant
relationship with regard to the issue:
Land contracts - controlled by the law of the state of the situs of the land
Personalty contracts - controlled by the law of the state where delivery occurs
Life-insurance contracts - controlled by the law of the state of the insured's domicile
Casualty insurance contracts - controlled by the law of the state where the insured risk is located
Loans - controlled by the law of the state where repayment is required
Suretyship contracts - controlled by the law of the state governing the principal obligation
Transportation contracts (covering both persons and goods) - controlled by the law of the state of
departure
The Area of law is
Conflicts of Law

With a focus on
Corporations
The Rule is

generally governed by the law of the state of incorporation...

The Area of law is
Conflicts of Law

With a focus on
Family Law
The Rule is

Marriage - in general, valid where it took place and recognized in all other states
Exception - a marriage that is valid in the state where it took place, but violates a prohibitory rule
of the domicile of one of the parties will be void in the state where the marriage would have been
prohibited if the parties immediately return to that state and become domiciled there
Divorce - questions of law relating to the grounds for divorce are controlled by the law of the
plaintiff's domicile
Divorce decrees from other states are entitled to full faith and credit as long as the original state
had jurisdiction to issue the decree and the decree is valid in the original state
Bilateral divorce-if the court has personal jurisdiction over both spouses and at least one spouse
is domiciled in the state, then the divorce judgment will be valid and will be entitled to full faith
and credit
Ex parte divorce-must adhere to subject-matter jurisdiction rules and personal jurisdiction must
exist over one spouse; full faith and credit is not given to other marital agreements such as
property rights, alimony, and child custody, but the non-domiciled spouse may agree to such
judgments
Child custody-under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), a
court can make initial custody decisions if it is in the child's home state, all other states must give
full faith and credit to such decisions
Legitimacy - governed by the law of the domicile of the parent whose relationship to the child is
in question
Adoption - the forum court applies its own state law
 The Area of law is
Conflicts of Law

With a focus on
Most Significant Relationship
Approach
The Rule is

In determining the enforceability of a premarital agreement, most states apply the law of the state
with the most significant relationship to the matter at hand. When determining which state has
the most significant relationship, the forum court generally considers the “connecting
facts†or contacts that link each jurisdiction to the case, as well as the seven policy principles
that are set forth in the Restatement (Second) of Conflict of Laws.
 The Area of law is
Conflicts of Law

With a focus on
Statutory Limitations
The Rule is

State statutes - a state may have a statute requiring certain COL rules to be applied in a particular
case
Federal statutes - certain federal statutes may preempt a state from claiming jurisdiction over
certain cases (e.g., patent, antitrust, bankruptcy cases)
The Area of law is
Conflicts of Law

With a focus on
Substantive Law
The Rule is

Federal courts sitting in diversity must apply substantive laws of the state in which it sits,
including that state's choice-of-law rules.
If there is an express choice-of-law provision in the contract, then that law will generally govern
unless there is no significant basis for the parties' choice or it is contrary to public policy.
The Area of law is
Conflicts of Law

With a focus on
Torts
The Rule is

The Default rule is that the place of injury controls unless another state has a more significant
relationship to the parties or tort...
 The Area of law is
Conflicts of Law

With a focus on
Vested Rights Approach
The Rule is

The law that controls is the law of the jurisdiction where the parties' rights were vested (i.e.,
where the act or relationship that gave rise to the cause of action occurred or was created)
The forum court would first characterize the issues in the cause of action
 The Area of law is
Constitutional Law

With a focus on
Adequate & Independent State
grounds
The Rule is

The Supreme Court can review a state court judgment only if it turned on federal grounds. The
Court has no jurisdiction if the judgment below rested on an adequate and independent state
ground.
Adequate: state ground must control the decision no matter how a federal issue is decided. When
does this happen? When federal claimant (i.e., the party asserting a federal rate) wins anyway
under state law.
Independent: the state law does not depend/hinge on an interpretation of federal law. No AISG if
the state law adopts or follows federal law.
When a state court decision is unclear as to the basis of the decision (i.e. Whether it is based on
the state constitution or the federal Constitution), the Supreme Court can review the federal issue
 The Area of law is
Constitutional Law

With a focus on
Legislative Power (Article 1) -
Congress Powers
The Rule is

The War and Defense Powers: Congress has the power to declare war and the power to maintain
the army and navy & the power to provide for military discipline of US military personnel.
- Congress can provide for military trial of enemy combatants and enemy civilians, but Congress
cannot provide for military trial of US citizens who are civilians
- Congress has the power to tax if rationally related to raising revenue and has the power to
spend for the general welfare
13th Amd.: Congress has broad power to legislate against racial discrimination, whether public
or private and the key is that the 13th can regulate private discrimination; “vestiges of
slavery†.
14th Amd.: Congress has the power to remedy violations of individual rights by the government,
but only as those rights have been defined by the courts. To be properly remedial, legislation
must have “congruence†& “proportionality.†( there has to be a reasonable fit
between the remedial law enacted by Congress & the constitutional right as defined by
SCOTUS)
15th Amd.: Congress has the power to ensure three is no racial discrimination in voting
Congress has the power to confirm or deny presidential appointments
Legislative Vetoes are unconstitutional. This situation arises when Congress passes a law in
reserving to itself the right to disapprove future executive actions by simple resolution. If
Congress wants to override executive actions, it must change the law (so that the president has an
opportunity to veto the new legislation). Congress cannot evade the president's guaranteed veto
opportunity by passing a law saying that in the future it plans to govern by resolution.
United States senators and representatives (not state legislators) are protected by the speech or
debate clause which states that Senators and congressmen and their aids cannot be prosecuted or
punished in relation to their official acts.
 The Area of law is
Constitutional Law

With a focus on
Legislative Power (Article 1) -
Congress Powers
The Rule is

The War and Defense Powers: Congress has the power to declare war and the power to maintain
the army and navy & the power to provide for military discipline of US military personnel.
- Congress can provide for military trial of enemy combatants and enemy civilians, but Congress
cannot provide for military trial of US citizens who are civilians
- Congress has the power to tax if rationally related to raising revenue and has the power to
spend for the general welfare
13th Amd.: Congress has broad power to legislate against racial discrimination, whether public
or private and the key is that the 13th can regulate private discrimination; “vestiges of
slavery†.
14th Amd.: Congress has the power to remedy violations of individual rights by the government,
but only as those rights have been defined by the courts. To be properly remedial, legislation
must have “congruence†& “proportionality.†( there has to be a reasonable fit
between the remedial law enacted by Congress & the constitutional right as defined by
SCOTUS)
15th Amd.: Congress has the power to ensure three is no racial discrimination in voting
Congress has the power to confirm or deny presidential appointments
Legislative Vetoes are unconstitutional. This situation arises when Congress passes a law in
reserving to itself the right to disapprove future executive actions by simple resolution. If
Congress wants to override executive actions, it must change the law (so that the president has an
opportunity to veto the new legislation). Congress cannot evade the president's guaranteed veto
opportunity by passing a law saying that in the future it plans to govern by resolution.
United States senators and representatives (not state legislators) are protected by the speech or
debate clause which states that Senators and congressmen and their aids cannot be prosecuted or
punished in relation to their official acts.
 The Area of law is
Constitutional Law

With a focus on
Legislative Power (Article 1) -
Congress Powers
The Rule is

The War and Defense Powers: Congress has the power to declare war and the power to maintain
the army and navy & the power to provide for military discipline of US military personnel.
- Congress can provide for military trial of enemy combatants and enemy civilians, but Congress
cannot provide for military trial of US citizens who are civilians
- Congress has the power to tax if rationally related to raising revenue and has the power to
spend for the general welfare
13th Amd.: Congress has broad power to legislate against racial discrimination, whether public
or private and the key is that the 13th can regulate private discrimination; “vestiges of
slavery†.
14th Amd.: Congress has the power to remedy violations of individual rights by the government,
but only as those rights have been defined by the courts. To be properly remedial, legislation
must have “congruence†& “proportionality.†( there has to be a reasonable fit
between the remedial law enacted by Congress & the constitutional right as defined by
SCOTUS)
15th Amd.: Congress has the power to ensure three is no racial discrimination in voting
Congress has the power to confirm or deny presidential appointments
Legislative Vetoes are unconstitutional. This situation arises when Congress passes a law in
reserving to itself the right to disapprove future executive actions by simple resolution. If
Congress wants to override executive actions, it must change the law (so that the president has an
opportunity to veto the new legislation). Congress cannot evade the president's guaranteed veto
opportunity by passing a law saying that in the future it plans to govern by resolution.
United States senators and representatives (not state legislators) are protected by the speech or
debate clause which states that Senators and congressmen and their aids cannot be prosecuted or
punished in relation to their official acts.
The Area of law is
Constitutional Law

With a focus on
Campaign Finance
The Rule is

Contributions to political campaigns/candidates can be regulated provided that the limits are not
unreasonably low. Direct expenditures in support of a candidate, a campaign, or a political issue
cannot be regulated....
The Area of law is
Constitutional Law

With a focus on
Commerce Clause
The Rule is

State's can't regulate Interstate commerce: The Supreme Court of the United States has long held
that the Constitution's grant to Congress of the power to regulate interstate commerce also limits,
by implication, the right of state or local governments to adopt laws that regulate interstate
commerce. This is often referred to as the “Dormant Commerce Clause: A nondiscriminatory
state law that imposes an “incidental†burden on interstate commerce will nonetheless be
unconstitutional if the benefits of the state law are grossly outweighed by the burdens on
interstate commerce.
The Dormant Commerce Clause is a doctrine that limits the power of states to legislate in ways
that impact interstate commerce. If Congress has not enacted legislation in a particular area of
interstate commerce, then the states are free to regulate, so long as the state or local action does
not: (1) discriminate against out-of-state commerce, (2) unduly burden interstate commerce, or
(3) regulate extraterritorial (wholly out-of-state) activity.
Discriminating against out of state - local economic interests: A state or local regulation
discriminates against out-of-state commerce if it protects local economic interests at the expense
of out-of-state competitors. Law here on its face doesn't discriminate because ____.However, the
mere fact that entire burden of a state's regulation falls on an out-of-state business is not
sufficient to constitute discrimination against interstate commerce. The Dormant Commerce
Clause protects the interstate market, not particular interstate firms, from prohibitive or
burdensome regulations.
Not Discriminatory but burden on interstate commerce: A state regulation that is not
discriminatory may still be unconstitutional if it imposes an undue burden on interstate
commerce. The courts will balance, case by case, the objective and purpose of the state law
against the burden on interstate commerce and evaluate whether there are less restrictive
alternatives.
Discriminatory on its face: (discuss how on its face disc./applied disc first) If a state or local
regulation, on its face or in practice, is discriminatory, then the regulation may be upheld if the
state or local government can establish that:
(i) an important local interest is being served, and
(ii) no other nondiscriminatory means are available to achieve that purpose.
Market Participant Exception: A state may behave in a discriminatory fashion if it is acting as a
market participant (buyer or seller), as opposed to a market regulator. If the state is a market
participant, it may favor local commerce or discriminate against nonresident commerce as could
any private business
 The Area of law is
Constitutional Law

With a focus on
Equal Protection (14th Amd.)
The Rule is

Equal Protection on Age: The Equal Protection Clause of the 14th Amd. provides that “no
state shall . . . deny to any person within its jurisdiction the equal protection of the laws.â€
This clause applies only to states and localities. Laws classified on the basis of age are reviewed
under the rational basis standard.
A law passes rational basis standard of review if it is rationally related to a legitimate
governmental interest, a test of minimal scrutiny. The law doesn't require that there to be an
actual link between the means that are chosen and the legitimate objective, the legislature must
reasonably believe there is a link. Laws under this standard are presumed valid
Forcing States to prevent them from enacting a statute: The federal government may exercise
only those powers specifically enumerated by the Constitution. The 14th Amd., Section Five
Enabling Clause permits Congress to pass legislation to enforce the equal protection and due
process rights guaranteed by the Amd., but not to expand those rights or create new ones. In
enforcing such rights, there must be a “congruence and proportionality†between the injury
to be prevented or remedied and the means adopted to achieve that end. Congress may override
state government action that infringes upon 14th Amd. rights if the "congruence and
proportionality" test is satisfied, its enforcement power would not stretch to prohibit a law that
does not violate the Constitution. In other words, because there would be no constitutional
injury to prevent or remedy, the proposed law would be both incongruent and disproportionate.
 The Area of law is
Constitutional Law

With a focus on
Freedom of Expression
The Rule is

Expressive conduct (a.k.a. Symbolic speech) laws regulating expressive conduct are upheld if
they further an important interest; That interest is unrelated to the suppression of expression; and
burden on expression is no greater than necessary.
If the government is trying to suppress a particular message, then the law will be struck down; if
the government is trying to pursue an interest unrelated to the suppression of expression, then the
law will be upheld.
The Area of law is
Constitutional Law

With a focus on
Freedom of Religion
The Rule is

Establishment Clause - 3- part Lemon Test asks 3 questions:

Does the law have a secular purpose?
It the law's primary effect the advancement or inhibition religion?
Does the law avoid excessive government entanglement with religion?
- It is a violation of the establishment clause for the government to endorse one religion over
another and also to endorsement of religion over non-religion. Examples: Officially sponsored
school prayer is unconstitutional; Officially sponsored graduation prayer is unconstitutional;
Bible reading is permissible, but cannot be inspirational (e.g., literature or poetry); Display of the
10 Commandments is sometimes OK. It can be displayed for secular purposes (e.g. Historical or
promoting morals), but not to inspire religious belief (Can teach the 10 Commandments in
school as an example of early legal code' Cannot post the 10 Commandments in classroom &
leave there every day of school year - designed to inspire religious belief; Cannot post 10
Commandments in a courthouse if the context makes plane that the purpose is to endorse
religious belief); Laws prohibiting teaching evolution have been struck down; Legislative prayer
is OK for historical practices; Nativity scenes are OK on public property if there is something
else to dilute the religious message (e.g., Hanukkah symbols, Rudolph the red nose reindeer).
Free Exercise of religion - Religious belief is protected absolutely (entitled to hold any beliefs or
none at all), but religious conduct is protected qualifiedly
- Laws regulating religious conduct because of its religious significance are unconstitutional (i.e.,
laws aimed at religion), however, regulation of conduct as far as neutral, generally applicable
laws must be obeyed despite religious objections.
Ministerial Exception: first Amd. requires a ministerial exception to employment laws. Non-
discrimination employment laws cannot be applied to ministers because the federal government
cannot regulate employment relations between a religious institution and its ministers
Campus access: a state university that allows student groups to meet on campus must allow
student religious groups equal access.
The Area of law is
Constitutional Law

With a focus on
Freedom of Speech
The Rule is

Freedom not to speak: The First Amd. is applicable to the states through the 14th Amd. and
protects the freedom of speech as well as the freedom not to speak. For example, the Supreme
Court has held that a child in a public school has the right not to recite the Pledge of Allegiance.
Freedom of speech - Public Forum: The First Amd. protects freedom of speech. Protected
speech can include written, oral, and visual communication, as well as activities such as
picketing and leafleting. The government's ability to regulate speech depends on the forum in
which the speech takes place.
- A traditional public forum is one that is historically associated with expression, such as
sidewalks, streets, and parks. In a traditional public forum, the government may only regulate
speech if the restrictions:
(i) are content-neutral as to both subject matter and viewpoint,
(ii) are narrowly tailored to serve a significant governmental interest, and
(iii) leave open ample alternative channels for communication. Additional restrictions, such as
an absolute prohibition of a particular type of expression, are upheld only if narrowly drawn to
accomplish a compelling governmental interest. (A blanket ban is not narrowly tailored)
Content based regulations of speech trigger strict scrutiny and are usually struck down.
Prior Restraint (regulating speech before it happens) Especially disfavored and will be struck
down even when other forms of regulation might be upheld. Injunctions against speech are
almost impossible to get because it regulates speech before it happens.
Time, Place, and Manner Restrictions: A public forum is a place traditionally reserved for speech
activities. These places include streets, parks, and public sidewalks around public buildings (but
not airports). Only time, place, and manner may be regulated in a public forum. There are three
requirements:
- Content neutral: must be content neutral on its face and as applied. Also, must not allow
executive discretion.
- Alternative channels of communication must be left open: time, place, or manner law must be a
guideline for speech, not a flat prohibition of speech.
- Must narrowly serve a significant state interest: under this test most content neutral time, place,
or manner regulations are upheld
-- Does not require a compelling interest
Non-public forum: this includes all kinds of government property that is not a public forum (e.g.,
government offices, jails, power plants, military bases, etc.).
- Viewpoint discrimination is invalid: one clearly unreasonable kind of regulation would be to
discriminate based on viewpoint (e.g. Between members of different political parties)
- Disruption of the functions of government: one should go outside to the public sidewalk
surrounding the building since that is a public forum.
Limited public forum: Describes a place that is not a traditional public forum, but that the
government chooses to open to all comers (e.g., a municipal theater that anyone can rent).
In such areas, only time, place, or manner regulations are allowed, but this is a narrow category.
Obscenity: the 4 S's - Sexy (must be erotic; appeal to the prurient interest); Society sick (must be
patently offensive to the average person in society. The society may be the nation as a whole, or a
particular state, or a major metropolitan area); Standards (must be defined by proper standards
for determining what's obscene, not vague and/or overbroad); Serious value (the material must
lack serious value. If material has serious value (artistic, scientific, educational, or political), it
cannot be held legally obscene. )
- This determination is made by the court, not the jury, and it must be based on a national
standard, not a local one.
- a lesser legal standard can be applied to minors, but the government cannot ban adult speech
simply because it would be inappropriate for minors.
- Child pornography can be prohibited whether or not it is legally obscene, and possession can be
punished even when it is in the privacy of your home.
- Land-use restrictions must be narrowly drawn; can regulate zoning of adult theaters but cannot
ban them entirely.
Speech is not protected if it is an incitement to immediate violence and Fighting words are words
likely to provoke an immediate breach of the peace.
Most regulations of commercial speech are struck down. So long as the advertising is truthful
and informational, it must be allowed, but misleading commercial speech may be prohibited.
First Amd. restrictions basically do not apply to the government as a speaker. The government
does not have to accept all monuments donated by a private person simply because it accepts
one, when the government is controlling the message, it is entitled to say what it wants, but
specialty license plates bearing messages requested by purchasers are still government speech, so
the government can refuse to issue plates that would be offensive to other citizens.
Corporations have the same speech rights as individuals, so does the media, with the exception
of broadcasters who are subject to greater regulatory authority than print media or the internet
government employees generally cannot be hired or fired based on political party, political
philosophy, or any act of expression, but this rule does not apply to confidential advisors or
policy making employees.
 The Area of law is
Constitutional Law

With a focus on
Legislative Power (Article 1) -
Congress Powers - 10th
amendment
The Rule is

Commandeering 10th Amend: Congress cannot force states to adopt or enforce federal regulatory
programs. It cannot commandeer state and local agencies to implement federal programs.
Congress cannot force states to adopt or enforce federal regulatory programs. It cannot
commandeer state and local agencies to implement federal programs. But, Congress can
condition federal funds to state and require states to implement certain regulation. As long as the
condition is related to public purpose it is constitutional. A valid exercise of the Spending power
does not violate the 10th Amend.
 The Area of law is
Constitutional Law

With a focus on
Privileges & Immunities
The Rule is

Forbids serious discrimination against out-of-state individuals, absent substantial justification,

this does not include corporations.
- there can be no legal requirement of residency for private employment. States cannot require
that you live or reside in the state to work in the state. However, public employment can require
residency requirements.
 The Area of law is
Constitutional Law

With a focus on
Procedural Due Process
The Rule is

Concerned with deprivations of life (i.e., death penalty), Liberty (i.e., physical confinement and
parole or restrictions on constitutionally protected rights, etc.), and Property.
- you have a property interest in your government job or benefit whenever you have a legitimate
entitlement to continued enjoyment of the job or benefit.
- Sometimes, a hearing must occur before the deprivation. (terminating welfare benefits; non-
emergency revocation of drivers licenses.)
- Sometimes, the hearing can occur after the action, so long as hearing is prompt and fair.
(terminating disability benefits; disciplinary suspension from a public secondary school)
The Area of law is
Constitutional Law

With a focus on
State Action
The Rule is

State Action: The Constitution generally protects against wrongful conduct by the government,
not private parties. A private person's conduct must constitute state action in order for these
protections to apply. State action is found when a private person carries on activities that are
traditionally performed exclusively by the state, such as running primary elections or governing a
“company town.â€
 The Area of law is
Constitutional Law

With a focus on
State Officials & 11th Amd.
The Rule is

11th Amendment Sovereign Immunity: 11th Amd. is a jurisdictional bar that prohibits the
citizens of one state from suing another state in federal court. It immunizes the state from suits
in federal court for money damages or equitable relief when the state is a defendant in an action
brought by a citizen of another state. There are a few notable exceptions, including when a state
waives its immunity under the Eleventh Amendment.
Suing State official for injunctive relief: When a state official, rather than the state itself, is
named as the defendant in an action brought in federal court, the state official may be enjoined
from enforcing a state law that violates federal law.
 The Area of law is
Constitutional Law

With a focus on
Substantive Due Process
The Rule is

Due process versus equal protection: if a law denies a fundamental right to everyone, it violates
due process, but if a law denies a fundamental right to only some and violates equal protection
Strict scrutiny: is the law necessary for a compelling government interest? Implicit in strict
scrutiny is the requirement for the least restrictive means. When strict scrutiny applies, the
government bears the burden of proof
- Travel, Voting & Ballot Access, Privacy (Marriage, Contraception, Sexual Intimacy, Abortion -
Undue Burden Test, Parental rights, family relations, obscene materials - not child pornography,
refusal of medical treatment), Race, Ethnicity, National Origin, Alienage (not undocumented
aliens) - Arbitrary and unreasonable, establishment clause violations, content-based speech
regulations
Intermediate Scrutiny: Is the law substantially related to an important government interest?
Legitimacy, gender - exceedingly persuasive, sexual orientation?? (split court), campaign
contributions
Rational Basis: Is the law rationally related to a legitimate interest? The challenger bears the
burden of proof.
- Everything else, including age, wealth, taxation, economic, weight, etc.
The Area of law is
Constitutional Law

With a focus on
Takings Clause
The Rule is

Per Se Taking: Generally, a governmental regulation that adversely affects a person's property
interest is not a taking. However, it is possible for a regulation to rise to the level of a taking,
such as when a regulation results in a permanent physical occupation of property by the
government or a 3rd party or a regulation results in a permanent total loss of the property's
economic value.
Regulatory taking: Even if the ordinance does not constitute an occupation of the property by
either the government or a third party, it is still subject to a three-factor balancing test to
determine whether the ordinance amounts to a regulatory taking. The following factors are
considered: (1) the economic impact of the regulation on the property owner, (2) the extent to
which the regulation interferes with the owner's reasonable, investment-backed expectations
regarding use of the property, and (3) the character of the regulation, including the degree to
which it will benefit society, how the regulation distributes the burdens and benefits among
property owners, and whether the regulation violates any of the owner's essential attributes of
property ownership, such as the right to exclude others from the property.
(1) Economic impact - how much value was lost due to the regulation;
(2) Reasonable expectations - the owner's reasonable expectation of return on investment;
(3) Character of the regulation - does the regulation impact a few owners or the entire
community?
EXACTION: A local government may exact promises from a developer, for ex. when setting
aside a portion of the land that is being developed for a park in exchange for issuing the
necessary construction permits. These exactions do not violate the Takings Clause if there is (1)
an essential nexus between legitimate state interests and the conditions imposed on the property
owner (i.e., the conditions substantially advance a legitimate state interest), and (2) a rough
proportionality between the burden imposed by the conditions on property owner and the impact
of the proposed development on the community.
- To determine whether there is rough proportionality between the burden and the impact, the
government must make an individualized determination that the conditions are related both in
nature and extent to the impact.
 The Area of law is
Constitutional Law

With a focus on
The Executive Branch
(President)
The Rule is

Pardon Power: the president can pardon or commute punishment for any and all federal offenses.
(Governors have a similar power for state crimes.) Cannot be limited by Congress.
Veto Power: president has 10 days to veto legislation. President can veto for any reason/no
reason but cannot veto specific provisions and except others. It is all or nothing.
Appointment & Removal powers: only the president (or his appointees) can hire or fire executive
officers. Some senior officers (e.g., cabinet officers, ambassadors, federal judges) require the
advice and consent of the Senate. The Senate has a power of rejection. The Senate approval
power does not translate into a power of appointment.
Treaties are negotiated by the president but require approval by a 2/3 vote of the Senate. Once a
treaty is ratified (approved) it has the same authority as a statute.
Executive agreements: presidential negotiations not submitted for approval by the Senate. They
can be authorized, precluded, or overridden by statute, but they take precedence over conflicting
state laws. They do not have the binding status of a treaty.
The President has ABSOLUTE IMMUNITY from liability for official acts (broadly construed),
but no immunity for accident prior to taking office. There is an executive privilege to not reveal
confidential communications with presidential advisers, but that privilege can be outweighed by
a specifically demonstrated need in a criminal prosecution
 The Area of law is
Contracts & Sales

With a focus on
Substantial Performance
The Rule is

The doctrine of substantial performance provides that a party who substantially performs can
recover on the contract even though full performance has not been tendered. Substantial
performance is negated if the incomplete performance amounted to a material breach of contract.
If the failure of a constructive condition of exchange is minor, however, it will not negate
substantial performance.
 The Area of law is
Contracts & Sales

With a focus on
Anticipatory Repudiation
The Rule is

Parties in a contract are entitled to expect due performance of contractual obligations and are
permitted to take steps to protect that expectation. Anticipatory repudiation occurs when there
has been an unequivocal refusal of the buyer or seller to perform, or when a party creating
reasonable grounds for insecurity fails to provide adequate assurances within 30 days of demand
for such assurances.
Repudiation allows the non-repudiating party to resort to any remedy given by the contract or
code. But until the repudiating party's next performance is due, he may retract the repudiation
unless the aggrieved party has since accepted the repudiation, acted in reliance on the
repudiation, or brought an action for breach.
- Retraction must include any assurances of performance that the other party has justifiably
demanded about whether the retracting party will perform. A proper retraction reinstates the
repudiating party's contract rights.
The Area of law is
Contracts & Sales

With a focus on
Consideration
The Rule is

Gifts are not exchanged for a bargain, so there is NO consideration for gifts and they are thus
hard to enforce
Pre-existing duty rule: if someone already has to do something, there's no new consideration
Past consideration - CL says it's a no go, the modern trend says that if someone provided a very
specific, meaningful benefit to somebody and that person then promises back, that MAY be
considered consideration
Promissory Estoppel: may be enforceable as a consideration substitute if the person making that
promise reasonable expected the promise to induce action or forbearance, the promise actually
induces action or forbearance, and injustice can only be avoided by enforcement of the promise.
NOTE: typically only reliance damages are available for promissory estoppel.
The Area of law is
Contracts & Sales

With a focus on
Contract Formation
The Rule is

Under the UCC, a contract is formed if both parties intend to contract and there is a reasonably
certain basis for giving a remedy. The only essential term is quantity, and as long as the parties
intend to create a contract, the UCC “fills the gap†if other terms are missing, such as the
time or place for delivery. At Common Law, all essential terms must be covered in the
agreement, including the parties, subject, price, & quantity.
- Note: Both Requirements & Output Contracts are considered specific enough under the UCC
even though they don't have a specific quantity term
For acceptance, generally any reasonable method will be allowed, but silence is only allowed if
expressly provided in the contract.
In general, an offer can be revoked by the offeror at any time prior to acceptance. A promise to
hold an offer open is governed by statute.
In creating a legal offer, there is an objective test: ask whether an offeror displays an objectively
serious intent to be bound
It is possible for an offer to be irrevocable if the offeree reasonably and detrimentally relies on
the offeror's promise prior to acceptance. It must have been reasonably foreseeable that such
detrimental reliance would occur in order to imply the existence of an option contract.
An offer is revoked when the offeror makes a manifestation of an intention not to enter into the
proposed contract before the offeree accepts. A revocation may be made in any reasonable
manner and by any reasonable means, and it is not effective until communicated. Under the
UCC, a person receives notice when: (i) it comes to that person's attention, or (ii) it is duly
delivered in a reasonable form at the offeree's place of business.
An offer is an objective manifestation of a willingness by the offeror to enter into an agreement
that creates the power of acceptance in the offeree. An offer can only be accepted while it
remains open.
One way that an offer terminates is by the offeree's rejection of the offer.
In general, an offer can be revoked by the offeror at any time prior to acceptance. However, an
enforceable option will render the offer irrevocable. An option is an independent promise to
keep an offer open for a specified period of time. Such a promise limits the offeror's power to
revoke the offer until after the period has expired, while also preserving the offeree's power to
accept. Under the common law, if the option is a promise not to revoke an offer to enter a new
contract, the offeree must generally give separate consideration for the option to be enforceable.
The UCC provides an alternative to the common law option rules if three requirements are met.
Under the UCC, an offer to buy or sell goods is irrevocable if: (i) the offeror is a merchant, (ii)
there is an assurance that the offer is to remain open, and (iii) the assurance is contained in a
signed writing from the offeror. Unlike the common law, no separate consideration is required to
keep the offer open under the UCC firm offer rule. A merchant is generally described as a person
who regularly deals in the type of goods involved in the transaction. Under the firm offer rule, a
merchant includes not only a person who regularly deals in the type of goods involved in the
transaction, but also any businessperson when the transaction is of a commercial nature.
The Area of law is
Contracts & Sales

With a focus on
Damages
The Rule is

In order to be liable for the D's damages resulting from __, the court must find that the ___ was
proximately caused by the woman's negligence. An actor is liable for any reasonably foreseeable
harm suffered as a consequence of her negligence. Subsequent medical malpractice or other
negligent acts are generally considered foreseeable intervening causes and will not break the
chain of the defendant's liability.
Res Ipsa : Under the doctrine of res ipsa loquitur, the trier of fact may infer the existence of the
defendant's negligent conduct in the absence of direct evidence of negligence. The plaintiff
must prove that:
(1) the accident is of a kind which ordinarily does not occur in the absence of negligence;
(2) the harm was caused by an agent or instrumentality within the exclusive control of the
defendant; and
(3) the harm was not due to any action on the part of the plaintiff.
Joint and Several Liability : Under the doctrine of joint and several liability, each of two or more
defendants who is found liable for a single and indivisible harm is subject to liability to the
plaintiff for the entire harm. The plaintiff can choose to collect the entire judgment from one
defendant or portions of the judgment from various defendants, as long as the entire recovery
does not exceed the full amount of the judgment. Under joint and several liability, the P can
collect the full amount of the judgment from either defendant or portion the damages between
them.
The Area of law is
Contracts & Sales

With a focus on
Firm Offer Rule
The Rule is

Under the UCC firm offer rule, an offer to buy or sell goods is irrevocable if:
(i) the offeror is a merchant,
(ii) there is an assurance that the offer is to remain open, and
(iii) the assurance is contained in a signed writing from the offeror.
A firm offer in a form prepared by the offeree, however, must be separately authenticated by the
offeror to protect against inadvertent signing.
 The Area of law is
Contracts & Sales

With a focus on
Installment Contracts
The Rule is

A divisible or installment contract is one in which the various units of performance are divisible
into distinct parts. Recovery is limited to the amount promised for the segment of the contract
performed....
The Area of law is
Contracts & Sales

With a focus on
Statute of Frauds
The Rule is

A contract is outside the UCC Statute of Frauds to the extent that goods are received and
accepted, and to the extent that payment has been made and accepted. When the price of goods is
at least $500, the UCC...
The Area of law is
Contracts & Sales

With a focus on
UCC 2-207
The Rule is

A merchant is a person who regularly deals in the type of goods involved in the transaction or
otherwise by his occupation holds himself out as having knowledge or skill peculiar to the
practices or goods involved in the transaction. In contracts of $500 or more between merchants,
if a memorandum sufficient against one party is sent to the other party, who has reason to know
its contents, and the receiving party does not object in writing within 10 days, then the contract is
enforceable against the receiving party even though he has not signed it.
At CL, the acceptance must be a mirror image of the offer, so no changes or new terms
If at least one of the parties is not a merchant, an acceptance with new terms will be a valid
acceptance, but the new terms are not going to come back in, but If BOTH parties are merchants,
additional terms do come in with the acceptance UNLESS, those additions/changes are material
changes, the terms of the original agreement say that no changes can come in, or if the offeror
objects before or after receiving the new terms.
 The Area of law is
Contracts & Sales

With a focus on
Unjust Enrichment (Quantum
Meruit)
The Rule is

When a plaintiff confers a benefit on a defendant and the plaintiff has a reasonable expectation of
compensation, allowing the defendant to receive the benefit without compensating the plaintiff
would be unjust. Although this type of action is often characterized as based on an implied-in-
law contract or a quasi-contract, quantum meruit does not depend on the existence of a contract.
 The Area of law is
Corporations

With a focus on
Limited Liability Company
(LLC)
The Rule is

An LLC can be member-managed (direct management of the LLC by its members; members can
bind the LLC as its agent) or manager-managed (centralized management of the LLC by one or
more managers who need not be members). Unless the operating agreement or certificate of
incorporation provide otherwise, the default management arrangement is member-management.
While an operating agreement by an LLC is generally not required, many LLCs adopt an
operating agreement that governs any and all aspects of the entity's affairs. The operating
agreement generally takes precedence over contrary statutory provisions. Generally, members of
an LLC owe each other a duty of loyalty.
A member of an LLC is generally not liable personally for the LLC's obligations. If a plaintiff
can pierce the veil, however, the members of the LLC may be held personally liable.
Although members of a manager-managed LLC do not have authority to bind the LLC, members
of a member-managed LLC have broad authority to bind the LLC, similar to that of a partner in a
general partnership. Each member has equal rights with respect to the management of the LLC.
However, an act outside the ordinary course of the activities of the company may be undertaken
only with the consent of all members.
Tax advantages of a partnership and the limited liability of a partnership.
- A member of a LLC is not individually liable, but PCV principals apply
Members of an LLC owe fiduciary duties of care & loyalty to the LLC & one another
- Duty of loyalty: members of an LLC may have a duty to bring a derivative action on behalf of
the LLC against themselves even as a corporation
- Duty of care: act reasonably and subject to the BJR
Direct actions: one member can bring against LLC or another member for itself
An LLC may dissolve upon the occurrence of various events, including consent of all members,
passage of 90 days without members, by court order, or by the happening of a dissolution-
causing event per the operating agreement. Dissociation alone does not cause dissolution. A
member can withdraw or dissociate at any time and without reason, even if doing so violates the
operating agreement, by providing notice to the corporation. Written notice is not required under
the ULLCA.
Dissolution may be mandatory (by the court) by showing that a controlling member is acting in
an oppressive way and harming the other member. The abused member will ask for this.
 The Area of law is
Corporations

With a focus on
Business Judgment Rule
The Rule is

The business judgment rule is a rebuttable presumption that a director reasonably believed that
his actions were in the best interests of the corporation. However, the business judgment rule
does not generally apply to a conflict-of-interest transaction.
A conflict-of-interest transaction, or “self-dealing,†is any transaction between a director
and his corporation that would normally require approval of the board of directors and that is of
such financial significance to the director that it would reasonably be expected to influence the
director's vote on the transaction. The interest involved can be direct or indirect, but it must be
financial and material. Majority approval of a conflict-of-interest transaction by fully informed
disinterested directors triggers the business judgment rule under a safe harbor provision.
Will not protect a director who violated their duty of care.
The Area of law is
Corporations

With a focus on
Bylaws
The Rule is

The board of directors can also amend bylaws unless the articles of incorporation or a vote by
shareholders limits this power.
Shareholder-approved bylaws can amend or repeal existing bylaw provisions, regardless of
whether the bylaw was initially approved by the shareholders or the board of directors.
However, a shareholder-approved bylaw dealing with director nominations may not limit the
board's power to amend, add, or repeal to ensure an orderly process. Thus, if shareholders
approve a bylaw Amendment that limits further board changes, the board could only amend or
add to the bylaw to safeguard the voting process; it could not repeal the shareholder-approved
bylaw.
The Area of law is
Corporations

With a focus on
Directors' Duties
The Rule is

Directors owe duties of care and loyalty to the corporation. The duty of care requires directors to
act with the care that a reasonably prudent person would use. The duty of loyalty requires
directors to act in the best interest of the corporation, avoiding conflicts of interest.
 The Area of law is
Corporations

With a focus on
Dissolution & Winding Up
The Rule is

When members agree to voluntarily dissolve an entity, the entity must wind up its affairs and
liquidate its business. Only after the entity's debts and obligations to creditors have been paid
may the members receive a portion of the liquidated value of the LLC. Those responsible for
winding up can be liable for improper distributions.
Dissociation does not discharge the member's interest or liability and does not necessarily trigger
dissolution and winding up. The dissociated member relinquishes his right to participate in the
LLC and is entitled to distributions only if the continuing members receive payment.
Order of distributing corporate assets: 1) pay off any creditors, 2) pay off any shareholders with
preferred stock, 3) pay off any remaining shareholders
The Area of law is
Corporations

With a focus on
Fiduciary Duties
The Rule is

A director owes a duty of loyalty and a duty of care to the corporation.

The duty of loyalty requires a director to act in a manner that the director reasonably believes is
in the best interests of the corporation. A director who engages in a conflict-of-interest
transaction with his own corporation has violated his duty of loyalty unless the transaction is
protected under the safe-harbor rule.
- A conflict-of-interest transaction may enjoy safe-harbor protection via (i) a majority vote of
informed and disinterested directors; (ii) a majority vote of informed and disinterested
shareholders; or (iii) fairness of the transaction.
- The fairness test looks at the substance and procedure of the transaction. Substantively, the test
asks whether the corporation received something of comparable value in exchange for what it
gave to the director. Procedurally, it looks at whether the process followed by the directors in
reaching their decision was appropriate. The interested directors have the burden of establishing
both the substantive and procedural fairness of the transaction. A conflict-of-interest transaction
in violation of the safe-harbor provisions may be enjoined or rescinded, and the corporation may
seek damages from the directors.
The duty of loyalty includes the duties to refrain from dealing with the company on behalf of one
with an adverse interest in the company, and to refrain from competing with the company. The
operating agreement may amend this duty so long as the Amd. is not manifestly unreasonable.
- No self dealing unless safe-harbor provision:
-- Interested Director who is self dealing discloses all material facts of the transaction to the
board of directors and receives approval from a majority of the non-interested board of directors
for the transaction to occur
-- Interested director discloses all material facts of the transaction to the shareholders and
receives approval from a majority of the non-interested shareholders
-- Transaction is fair to the corporation in substance (terms) & procedure (process was fair)
With respect to the duty of care, directors have a duty to act with the care that a person in a like
position would reasonably believe appropriate under similar circumstances. The director is
presumed to have the knowledge and skills of an ordinarily prudent person and is required to use
any additional knowledge or special skills that he possesses. Normally, the party alleging a
violation of the duty of care must rebut the business judgment rule.
- No self-dealing and no usurping of a corporate opportunity
A shareholder owes a fiduciary duty to the corporation and minority shareholders
Always talk about duty of care followed by the business rule
 The Area of law is
Corporations

With a focus on
Formation of a Corporation
The Rule is

In order to form a corporation, articles of incorporation must be filed with the state. The articles
must include certain basic information, including the number of shares the corporation is
authorized to issue. Unless a delayed date is specified in the articles, the corporate existence
begins when the articles are filed.
When a person conducts business as a corporation without attempting to comply with the
statutory incorporation requirements, that person is liable for any obligations incurred in the
name of the nonexistent corporation.
When all of the statutory requirements for incorporation have been satisfied, a de jure
corporation is created. Consequently, the corporation, rather than persons associated with the
corporation, is liable for activities undertaken by the corporation. However, when a corporation
has not been created, the entity may be treated as a general partnership.
A partnership is an association of two or more persons to carry on a for-profit business as co-
owners. In a general partnership, each partner is jointly and severally liable for all partnership
obligations.
When a person makes an unsuccessful effort to comply with the incorporation requirements, that
person may be able to escape personal liability under either the de facto corporation doctrine or
the corporation by estoppel doctrine. Under either doctrine, the owner must make a good-faith
effort to comply with the incorporation requirements and must operate the business as a
corporation without knowing that the requirements have not been met. If the owner has done so,
then the business entity is treated as a de facto corporation, and the owner, as a de facto
shareholder, is not personally liable for obligations incurred in the purported corporation's name.
Alternatively, under corporation by estoppel, a person who deals with an entity as if it were a
corporation is estopped from denying its existence and is thereby prevented from seeking the
personal liability of the business owner. This doctrine is limited to contractual agreements.
If a corporation states in its articles of incorporation that they have a very specific purpose (very
uncommon - usually they say they have a broad purpose) and that corporation enters into a
contract beyond that specific scope, they have committed an ultra vires act and a shareholder can
come in and enjoin the action or take action against the officer for that act.
 The Area of law is
Corporations

With a focus on
Issuance of Stock (Securities)
The Rule is

Issuance must be approved by the board of directors and they determine that the value paid for
the stock is adequate.
- Par value stock is when a corporations decides to assign a minimum value for a stock and it
cannot be sold for less than that and if it is sold for less, the board can be liable, and if the
shareholder who buys it knows they are getting it for less than par value, they can also be liable.
Note: stock sold for less than par value is watered stock
The Area of law is
Corporations

With a focus on
Legal Actions
The Rule is

A shareholder may bring a direct or a derivative action against the corporation in which the
shareholder owns stock.
In a direct action, the shareholder is vindicating his own rights and is not required to make a
demand on the board of directors before proceeding with the litigation.
By contrast, in a derivative action, a shareholder brings suit on behalf of the corporation and is
typically based on a breach of fiduciary duties by the board of directors. To bring a derivative
action, the shareholder must have standing and must make a written demand upon the board of
directors.
- To have standing, the shareholder must have been a shareholder at the time of the wrong and at
the time the action was filed and continue to be a shareholder throughout the litigation.
Requirement to make a written demand upon the board of directors unless the demand would be
futile. Not all jurisdictions recognize the futility exception, however. In states that do not
recognize the futility exception, demand must be made upon the board in all cases.
- To bring a derivative action you must bring a demand upon the board to demand action and
then give 90 days for them to take that action. If the board does not take action or remedy the
action in 90 days, then the suit can be brought on behalf of the corp. This requirement can be
waived if irreparable injury would result from waiting the 90 days, then it can be immediate.
-- Futility exception - doesn't have to bring the demand on the board if it would be futile
-- The board can bring a motion to dismiss the derivative action if acting in good faith and in the
best interest of the corporation.
Any recovery is going to go to the corporation
The Area of law is
Corporations

With a focus on
Meeting Notice
The Rule is

Directors are entitled to notice of a special meeting. Unless the articles of incorporation or
bylaws provide otherwise, notice must be provided at least two days prior to the meeting and
should state the date, time, and place of the meeting. The notice need not describe the purpose of
the special meeting.
Directors are entitled to notice of a special meeting, but a director's attendance waives notice of
that meeting unless the director promptly objects to lack of notice.
The Area of law is
Corporations

With a focus on
Officers
The Rule is

Officers are agents of the corporation; follow an agency analysis...

 The Area of law is
Corporations

With a focus on
Piercing The Corporate Veil
The Rule is

There must exist some circumstances that would justify piercing the veil on equitable grounds,
such as undercapitalization of the business, commingling of assets, confusion of business affairs,
or deception of creditors.
Courts rely on various theories to pierce the corporate veil, including the “mere
instrumentality†test, wherein a member has to show that
(i) the members dominated the entity in such a way that the Corporation had no will of its own,
(ii) the members used that domination to commit a fraud or wrong, and
(iii) the control & wrongful action proximately caused the injury.
Under the “unity of interest and ownership†test, a petitioner must demonstrate that there
was such a unity of interest and ownership between the entity and the members that, in fact, the
company did not have an existence independent of the members and that failure to pierce the veil
through to the members would be unjust or inequitable.
If a shareholder is abusing the protections of the corporate status, a court can pierce the corporate
veil
The Area of law is
Corporations

With a focus on
Promoter Liability
The Rule is

The promoter is individually liable on contracts formed before the corporation came into
existence even after the corporation is formed; they can escape by a novation (when the
corporation and the 3rd party agree to let the promoter out and take over it) or adoption (if the
corp. takes the benefits out of that contract, then the promoter is let out of liability
The Area of law is
Corporations

With a focus on
Removal
The Rule is

Shareholders elect the board of directors and the board of directors is actually responsible for the
management of the corporation and business affairs. Shareholders can remove members of the
board for breaches of fiduciary duties and modernly, without cause....
The Area of law is
Corporations

With a focus on
Shareholders
The Rule is

Elect the Board of Directors by a vote

Shareholders have a right to inspect & copy the records during normal business hours as long as
they give 5 days notice and state a proper purpose.
Shareholders have a right to vote on changes in the corporation
Proxy voting: allows a person to vote on behalf of the shareholder; irrevocable is allowed - cant
take it back
Shareholders have the power to amend a corporation's bylaws under state law. A corporation's
bylaws for the management of the corporation's business or regulation of its affairs are
enforceable, so long as the bylaws do not conflict with state law or the articles of incorporation.
The nomination of directors and the procedure for nominating directors are common provisions
in the bylaws and are consistent with regular corporate practice.
Shareholder agreements by which shareholders form an agreement to vote their shares together
are allowed
 The Area of law is
Corporations

With a focus on
Voting & Meeting Participation
The Rule is

Typically, the assent of a majority of the directors present at the time the vote takes place is
necessary for board approval. However, the articles of incorporation or bylaws may specify a
higher level of approval.
For the board of directors' acts at a meeting to be valid, a quorum of directors must be present at
the meeting. A majority of all directors in office constitutes a quorum, unless the articles of
incorporation or bylaws require a higher or lower number. A director must be present at the time
that the vote is taken in order to be counted for quorum purposes, but presence includes
appearances made through communications equipment that allows all persons participating in the
meeting to hear and speak to one another.
 The Area of law is
Criminal Law

With a focus on
Accomplice Liability
The Rule is

Under the majority and MPC rule, generally, a person is an accomplice in the commission of an
offense if he intentionally assists with the crime and acts with the purpose of promoting or
facilitating the commission of the offense. Mere knowledge that another person intends to
commit a crime is not enough to make a person an accomplice.
The accomplice must intend that his acts will assist or encourage the criminal aim. BUT, when
the crime committed by the principal only requires the principal to act recklessly or negligently
(e.g., involuntary manslaughter), a person may be an accomplice to that crime under the majority
rule if the person merely acts recklessly or negligently with regard the principal's commission of
the crime, rather than purposefully or intentionally. Recklessly just requires the defendant to act
with a conscious disregard of a substantial and unjustifiable risk that a material element of a
crime exists or will result from his conduct.
Accessories after the fact are people who assist the defendant after the crime has been committed
In addition to accomplice liability for the substantive crime, individuals who aid or abet a
defendant to commit a crime may also be guilty of the separate crime of conspiracy if there was
an agreement to commit the crime and an overt act taken in furtherance of that agreement
The Area of law is
Criminal Law

With a focus on
Causation
The Rule is

A factual cause exists then proximate cause also exists, unless there are intervening acts.
An intervening cause is a factual cause of the plaintiff's harm that contributes to his harm after
the defendant's tortious act has been completed. Original tortfeasors remain liable for an
intervening cause unless the result was unforeseeable or the harm was unforeseeable. A
superseding cause is any intervening cause that breaks the chain of proximate causation between
the defendant's tortious act and the plaintiff's harm, thereby preventing the original defendant
from being liable to the plaintiff. However, when both the intervening cause and the harm are
unforeseeable, the intervening cause becomes a superseding cause, and the defendant's liability is
cut off by that superseding cause.
 The Area of law is
Criminal Law

With a focus on
Crimes Against a person
The Rule is

Battery: Unlawful Application of force

- general intent crime so voluntary intoxication an unreasonable mistake of fact are not available
defenses. Does not require actual physical contact between the defendant and the victim (e.g.
throwing a rock that hit someone)
Assault (2 forms): attempted battery (SI) & fear of harm (GI)
The Area of law is
Criminal Law

With a focus on
Defenses
The Rule is

Insanity: Majority jurisdictions, defendant has the burden of proving insanity. Insanity includes
mental disease that may affect legal responsibility.
- M'Naughten: defendant either did not know the nature of the act or did not know that the act
was wrong because of mental disease or defect.
- Irresistible Impulse: defendant has a mental disease or defect that prevents the defendant from
controlling himself
- Durham Rule: defendant would not have committed the crime but for his having a mental
disease or defect (rarely used because so defendant-friendly)
- Model Penal Code: due to a mental disease or defect, the defendant did not have substantial
capacity to appreciate the wrongfulness of his actions or to conform his conduct to the law.
Voluntary Intoxication occurs when a person intentionally ingests the substance, knowing it is an
intoxicant.
- defense only to specific intent crimes, and only if it prevented the defendant from forming the
mens rea.
- Under MPC, voluntary intoxication is only a defense to crimes for which material element
requires purpose or knowledge and the intoxication prevents the formulation of that mental state
Involuntary Intoxication occurs when a person Doesn't realize that she received an intoxicating
substance (e.g., “date rape†drugs); Is coerced into ingesting a substance; or Has an
unexpected or unanticipated reaction to prescription medication.
- Can be a valid defense to general intent, specific intent and malice crimes when it negates the
mens rea necessary for the crime
Self Defense: two kinds - deadly & non-deadly Non-deadly force:
- victim entitled to use non-deadly force any time he reasonably fears eminent unlawful harm.
- A victim is entitled to use deadly force only if he reasonably believes that deadly force will be
used against him, or under the MPC, reasonably believes that the crime will result in serious
bodily injury.
-- Majority rule: retreat is not required even when entitled to use deadly force.
-- Minority rule: must retreat rather than using deadly force if safe to do so, but even in minority
jurisdictions, retreat is never required when the person is employing deadly force is in his own
home
- Defense of Others: same right to defend other individuals against a criminal that she has to
defend herself.
- Defense of Property: only non-deadly
Duress is when defendant claims he committed a crime only because he was threatened by a
third-party and reasonably believed that the only way to avoid death or injury to himself or
others wants to commit the crime. In order to be a defense, there must be a threat of death or
serious bodily harm. Mere injury, particularly injury to property, is not sufficient. Duress is a
defense for all crimes other than intentional murder
Duress: A third party's unlawful threat that causes a defendant to reasonably believe that the only
way to avoid death or serious bodily injury to himself or another is to violate the law, and that
causes the defendant to do so, allows the defendant to claim the duress defense.
Necessity: Available in response to natural forces; i.e., it is the lesser of two evils
Mistake of Fact
- GI crimes: only reasonable mistakes of fact maybe use as a defense.
- SI crime: all mistakes of fact are potential defenses, even unreasonable mistakes
Under the common law, one who is not the aggressor is justified in using reasonable force
against another person to prevent immediate unlawful harm to herself. The harm to the
defendant must be imminent, not a threat of future harm, and the person can only use as much
force as is required to repel the attack.
 The Area of law is
Criminal Law

With a focus on
Inchoate Crimes - Attempt
The Rule is

An attempt crime requires a specific intent to commit a criminal act coupled with a substantial
step taken toward the commission of the intended crime.
At common law, once the defendant has taken a substantial step toward the commission of a
crime, the crime of attempt is completed; there can be no abandonment or withdrawal.
Under the “substantial step†test (a subjective test), the act must be one that tends to effect
the commission of a crime. Conduct does not constitute a substantial step if it is in mere
preparation. Some states apply the “dangerous proximity†test, however, which requires
that the defendant's acts result in a dangerous proximity to completion of the crime.
Abandonment : Some jurisdictions do recognize voluntary abandonment as a defense to attempt.
Abandonment is not voluntary, however, if it is motivated by a desire to avoid detection, a
decision to delay commission of the crime until a more favorable time, or the selection of
another similar objective or victim.
Remember: attempt merges into a completed offense
 The Area of law is
Criminal Law

With a focus on
Inchoate Crimes - Conspiracy
The Rule is

Agreement (can be explicit or implicit) to commit an unlawful act (If what the conspirators
agreed to do is not a crime, there is no conspiracy even if they think what they are doing is
wrong) accompanied by an overt act in furtherance of the conspiracy
Chain Conspiracy: co-conspirators are engaged in an enterprise consisting of many steps; each
participant is liable for the substantive crimes of his co-conspirators.
- The conspirators need not know each other, but they have all agreed to participate in the same
conspiracy and each can be held liable for the conspiracy and for the substantive offense is
committed along the way
Spoke-Hub Conspiracy: involves many people dealing with a central hub; participants are not
liable for this option of crimes of the co-conspirators because each spoke is treated as a separate
agreement rather than one larger general agreement
Withdrawal of Conspiracy: at common law, it's impossible to withdraw from a conspiracy,
because the crime is completed the moment the agreement is made. At Federal level and MPC, a
co-conspirator can withdraw prior to the commission of any overt act by communicating her
intention to withdraw to all other conspirators or by informing law enforcement.
- But After overt act: a conspirator can withdraw by helping to thwart the success of the
conspiracy
 The Area of law is
Criminal Law

With a focus on
Inchoate Crimes - Solicitation
The Rule is

Occurs when an individual intentionally invites, requests, or commands another person to

commit a crime. If the person agrees it is conspiracy instead. If the person commits the offense,
the solicitation charge will merge into the completed offense...
The Area of law is
Criminal Law

With a focus on
Jurisdiction Basics
The Rule is

There is no such thing as a thought crime, there must be some physical act in the world (Act can
be speech), Act must be voluntary (had motor control over the act.), and the failure to act can be
sufficient Actus Reus.
 The Area of law is
Criminal Law

With a focus on
Lesser Include Offenses
The Rule is

A lesser included offense is one that does not require proof of an element beyond those required
by the greater offense....
The Area of law is
Criminal Law

With a focus on
Manslaughter
The Rule is

Voluntary manslaughter occurs when a defendant intends to kill victim, but state of mind less
blameworthy than murder. i.e., acted in the “heat of passion†or “under extreme
emotional disturbanceâ€
- Voluntary manslaughter is murder committed as a result of or in response to an adequate
provocation. something occurs that provokes the defendant into killing the victim. D must have
been provoked, analyzed under whether or not objectively speaking what a reasonable person
have been provoked by the victim's actions. (Mere words are usually not enough to provoke
somebody to kill, walking in on adultery a classic example of a reasonable provocation that
might provoke somebody to kill.) In addition, reasonable provocation the defendant must also
subjectively be provoked, they must be upset by what the witness. In addition to both objective
and subjective D must not have had time to cool off. This means whether or not there is
sufficient time for reasonable person to cool off in between the provocation and the killing. If
the person was provoked but a few days later commits the killing, that's reasonable time to cool
off. On the other hand, if the provocation occurs immediately thereafter the provocation or
within a reasonable amount of time the defendant commits the killing D did not have reasonable
time to cool off. Finally, the D subjectively did not cool off as well. (be sure to analyze
provocation both objective subjective and then time to cool off)
- Test: situation in which most people would act without thinking & without time to cool off.
Involuntary manslaughter is an unintentional killing of another person with criminal negligence.
Criminal negligence is grossly negligent action that puts another person at a significant risk of
serious bodily injury or death. Criminal negligence is a substantial deviation from the standard
of care that a reasonable person would have used. But criminal negligence is less than extremely
reckless conduct which is required for depraved heart murder.
- Under the Model Penal Code, the defendant must have acted recklessly, which is a “gross
deviation from the standard of conduct that a law-abiding person would observe in the actor's
situation. This requires that the D must have actually been aware of the risk his conduct
possessed. Involuntary manslaughter also requires a causal connection between the D's
criminally negligent or unlawful act and the death.
- Recklessness: D acts Recklessly when he acts with a conscious disregard of a substantial and
unjustifiable risk that a material element of a crime will result from his conduct.
The Area of law is
Criminal Law

With a focus on
Mens Rea
The Rule is

Specific Intent: Defendant committed actus reus and did it for very purpose of causing result that
the law criminalizes (BAM ACTS)
Malice exists when the defendant acts in reckless disregard of a high degree of harm (realizes the
risk and acts anyway.) (I AM)
General Intent: The intent to perform an act, and the act is unlawful. The defendant does not need
to know that the act is unlawful; it is sufficient to intend to perform the act that the law
condemns.
Generally, acts done knowingly, recklessly, or negligently under the Model Penal Code (MPC)
are general intent crimes. (ex. battery, kidnapping, rape, false imprisonment)
Strict Liability does not require a specific state of mind, the defendant must merely have
committed the act.
The Area of law is
Criminal Law

With a focus on
Murder
The Rule is

Homicide Unlawful killing of a human being with malice aforethought.

Explain what the Mens Rea is?
Concurrence & Causation To prove homicide, the prosecution must show that the defendant
caused the victim's death. The prosecution must prove both actual and proximate causation.
- Actual Cause : If the victim would not have died but for the defendant's act, then the
defendant's act is the actual cause of the killing. If the V would not have died but for D's act,
then D act is the actual cause (cause-in-fact) of the death. When the defendant sets in motion
forces that lead to the death of the victim, the defendant is the actual cause of the victim's death.
- Proximate cause exists when the defendant is legally responsible for the crime. For the
defendant to be legally responsible for the crime, the death must be foreseeable. That is, the
death must be the natural and probable result of the conduct. A defendant's conduct is deemed to
be foreseeable if it is not abnormal. Actions by a force of nature that are not within the
defendant's control are generally not foreseeable. However, an intervening cause will not relieve
the defendant of criminal responsibility unless it was so out-of-the-ordinary that it would be
unjust to hold the defendant responsible. Further, an act that accelerates death is a legal cause of
the death.
First Degree Murder: SI crime, a deliberate and premeditated murder/killing that results during
the commission of an inherently dangerous felony (BARRK) (felony murder is classified as first-
degree murder)
Second Degree Murder : unlawful killing of another human being committed with malice
aforethought. To be guilty of second-degree murder, Defendant must have acted with the
requisite mens rea of malice aforethought. Malice aforethought includes the following mental
states: the intent to kill, the intent to inflict serious bodily injury, reckless indifference to a known
and unjustifiably high risk to human life (depraved heart), or intent to commit certain felonies
(BARRK).
- Intent to Kill: defendant acted with the desire that the victim end up dead; Intent need not be
premeditated; it can be formed the moment before the killing.
- Intent to Inflict Serious Bodily Harm: and then the defendant intended to hurt the victim badly,
and the victim died.
- Malignant or abandoned heart or depraved heart: the defendant acted with a cavalier disregard
for human life and death resulted. Here, defendant must realize that his conduct is really risky
but need not have any intent regarding the outcome of his actions.
-- Majority & MPC: defendant must actually realized there is a danger; Minority: a reasonable
person would have recognized the danger.
- Felony murder: death occurred during commission/attempted commission of a dangerous
felony. (BARRK)
- In most states, a killing that results from reckless indifference to an unjustifiably high risk to
human life is a depraved-heart murder.
Felony Murder, the dangerous felony must be independent of killing itself. This can involve
Felony murder can involve:
- Someone who resists the felony; When a bystander is killed during a felony; Third person
killed by the resister or police officers (minority rule; Majority: agency theory: a defendant is
only responsible for crimes of the defendants “agents.†Because victim, police, or third-
party or not the defendants agents, defendant is not responsible for their conduct.
- If a co-felon is killed by a resistor or a police officer, then the defendant is not guilty a felony
murder.
The Area of law is
Criminal Law

With a focus on
Other Crimes
The Rule is

Forgery: The making of a false writing with apparent legal significance and with the intent to
defraud
Rape is unlawful Sexual intercourse with a female (modernly gender-neutral) against her will by
force or threat of force (modern statutes require showing a lack of consent rather than the force
requirement)
Statutory rape is a regulatory morals offense that involves consensual sexual intercourse with a
person under the age of consent.
- Statutory rape is a strict liability offense; So long as the defendant knows that he is having sex,
he cannot claim ignorance or mistake about the victim's age
Kidnapping is the unlawful confinement of another person against that person's will, either by
moving or hiding the victim and must hide the victim for a substantial period of time
Perjury: willful act of falsely promising to tell the truth, verbally or in writing, about material
matters
Bribery is the corrupt payment of something of value for purposes of influencing an official in
the discharge of his official duties
The Area of law is
Criminal Law

With a focus on
Property Crimes
The Rule is

Larceny is the trespassory taking and carrying away of the personal property of another with the
intent to permanently deprive that person of the property.
- continuing trespass rule, if the initial taking is not trespassory because there is no intent at the
time to permanently deprive the person of the property then the continuing trespass rule will
deem the initial trespass as continuing so that when the D later develops the requisite criminal
intent.
Embezzlement: fraudulent conversion of the property of another by a person who is in lawful
possession of the property. Conversion is the inappropriate use of property, held pursuant to a
trust agreement, which causes a serious interference with the owner's rights to the property.
occurs where a defendant starts out having the victims consent to have the property but commits
embezzlement by converting the property to his own use.
False Pretenses: occurs when defendant obtains title to someone else's property through an act of
deception. It requires obtaining title to the property of another person through the reliance of
that person on a known false representation of a material past or present fact, and the
representation is made with the intent to defraud.
Larceny by Trick: a defendant who commits larceny by trick obtains only possession of the
personal property of another, not title of that property. Also, the defendant who commits larceny
by trick obtains possession of the property by intentionally making a false statement to the
victim.
Robbery: Taking of personal property of another from other's person or presence by force or
threat of imminent death or injury with intent to permanently deprive
Extortion : Obtaining property by threat of harm/exposing information.
Receipt Of Stolen Property : To be guilty of receiving stolen property, the defendant must (i)
have control of stolen property, (ii) have the knowledge that the property is stolen, and (iii) have
the intent to permanently deprive the owner of the property. Property that is unlawfully obtained
through larceny, embezzlement, or false pretense (theft crimes) is stolen property. Knowledge
that the property is stolen must coincide with the act of receiving the property.
- Some jurisdictions require that the defendant have actual subjective knowledge that the
property has been stolen.
- Other jurisdictions permit the defendant's knowledge to be inferred from facts that would alert a
reasonable person to unlawful acquisition of the property.
CL Burglary breaking and entering the dwelling of another at nighttime with the specific intent
to commit a felony therein. “Breaking†is generally accomplished by using force to create
an opening into a dwelling, but slight force, such as pushing open a window that was ajar,
satisfies this element. “Entering†occurs when any portion of the defendant's body crosses
into the dwelling without permission through the opening created by the breaking.
Arson: the malicious burning of the dwelling (or another structure of another person
- At common law, there had to be burning (fire) as opposed to an explosion or smoke damage. It
also requires damage to the structure, not just the contents inside, but under Modern statutes:
arson even if there's no damage to the structure of the building or if the fire was caused by an
explosion.
- At common law, had to be a dwelling, not another structure, but modernly: burning down a
commercial building is arson
- At common law: you could not torch your own house, but under Modern statutes: burning your
own home is arson.
 The Area of law is
Criminal Procedure

With a focus on
4th Amd. - Unreasonable
Search & Seizure
The Rule is

Probable Cause: A proper arrest is one that is based on probable cause. Probable cause may be
supported from a number of different sources including a police officer's personal observations.
Automobile: The Fourth Amd. does not require police to obtain a warrant to search a vehicle if
they have probable cause to believe it contains contraband or evidence of a criminal activity.
Plain view doctrine: A warrantless search is valid if it is reasonable in scope and if it is made
incident to a lawful arrest. Under the plain view doctrine, if an item is in public view it may be
seized without a warrant since there is no reasonable expectation of privacy for such an item.
To have standing to challenge the admission of illegally seized evidence, the defendant's Fourth
Amd. rights must have been violated. A defendant cannot successfully challenge governmental
conduct as a violation of the Fourth Amd. protection against unreasonable searches and seizures
unless the defendant himself has been seized or he has a reasonable expectation of privacy with
regard to the place searched or the item seized. It is not enough that the introduction as evidence
of an item seized may incriminate the defendant.
 The Area of law is
Criminal Procedure

With a focus on
5th Amd. - Due Process (Grand
jury, double jeopardy, self-
incrimination, Miranda)
The Rule is

Custodial interrogation : is questioning initiated by law enforcement officers after a person has
been taken into custody. A person under arrest is, by definition, in custody and any police
questioning of the person under arrest would thus be custodial interrogation. Questioning of a
suspect by a police officer subsequent to an arrest must be preceded by Miranda warnings and a
waiver or the suspect's Miranda rights are violated.
Exclusionary Rule when 1st Amend. is broken : The Supreme Court has indicated that violations
of Miranda do not necessarily support the “fruit-of-the-poisonous-tree†doctrine, at least
with respect to subsequent statements by the defendant. Isolated negligence by law enforcement
personnel will not trigger the exclusionary rule.
Unambiguous Request for Counsel : The right to counsel under the Fifth Amendment is not
automatic. To invoke the right to counsel under the Fifth Amendment, a suspect must make a
specific, unambiguous statement asserting her desire to have counsel present. If a suspect makes
an ambiguous statement regarding the right to counsel, the police are not required to end the
interrogation or to clarify whether the suspect wants to invoke the right. However, once that
right to counsel is invoked, all interrogation must stop until counsel is present.
Questioning a person in Prison : Imprisonment alone does not necessarily create a custodial
situation within the meaning of Miranda. The questioning of a prisoner, who is removed from
the general prison population, about events that took place outside the prison is not categorically
“custodial†for Miranda purposes. A standard, objective “totality of circumstancesâ€
analysis applies when an inmate is interviewed, including consideration of the language that is
used in summoning the prisoner to the interview and the manner in which the interrogation is
conducted. In addition, police may re-open interrogation of a suspect who has asserted his Fifth
Amendment right to counsel if there has been a 14-day or more break in custody, such as the
release back into the general prison population of a suspect who has been incarcerated for
another crime. In such circumstances, the officers must give fresh Miranda warnings and get a
valid waiver before beginning questioning.
Double Jeopardy : The Fifth Amd. protection against double jeopardy applies to the states
through the Due Process Clause of the 14th Amd. and protects against multiple punishments for
the same offense. If a defendant's conduct may be prosecuted as two or more crimes, then the
Blockburger test is applied to determine whether the crimes constitute the same offense for
double jeopardy purposes. Under this test, each crime must require the proof of an element that
the other does not in order for each to be considered as a separate offense. The double jeopardy
clause generally bars successive prosecutions for greater and lesser included offenses.
Incorrectly conveying right to counsel when giving Miranda : Once a custodial interrogation
begins, anything the defendant says is inadmissible until the defendant is informed of their
Miranda rights and the defendant waives those rights. Law-enforcement officials must inform
suspects of their right to consult an attorney and to have the attorney present during an
interrogation and that an attorney will be appointed to represent indigent defendants. The
warnings, which must be given before interrogation begins, need not be a verbatim repetition of
the language used in the Miranda decision, but simply must “reasonably convey†the rights
required by Miranda.
Public Safety exception : Limited interrogation w/out Miranda warnings, when intended to
protect public safety, fits Miranda public safety exception.
The exclusionary rule would only be triggered if the conduct of the police was shown to be
sufficiently deliberate and a pattern of conduct that exclusion would deter.
The Fifth Amd., as applied to the states through the 14th Amd., provides the accused with the
right not to be compelled to make incriminating statements during custodial interrogation (the
right to remain silent). As with the Fifth Amd. right to counsel, the defendant must make a
specific, unambiguous statement asserting his right to remain silent. Merely remaining silent
does not invoke the privilege. If a defendant invokes his right to remain silent, the interrogator
must honor that request. Once the right is invoked, a defendant may knowingly and voluntarily
waive his right to remain silent. The burden is on the government to show that waiver was both
knowing and voluntary based on the totality of the circumstances. A statement is involuntary
only if the police act to coerce the defendant into making the statement. A suspect waives his
right to remain silent by making an uncoerced statement to the police. Once the right to remain
silent has been waived, the police have no obligation to inform the defendant that counsel is
trying to reach him.
For Miranda purposes, custody is established if a reasonable person under similar circumstances
would believe she was not free to leave, and an interrogation is either express questioning or its
functional equivalent by the police.
Miranda protections apply only to testimonial or compelled communicative evidence by a
suspect who is in custody and under interrogation.
If a custodial suspect initiates communication with the police after invoking his right to counsel,
the suspect's subsequent statements may be admissible. Although comments relating to routine
incidents of custody are not considered as initiating communication, statements that clearly
indicate a willingness to speak about matters relating to the investigation are treated as initiating
communication.
 The Area of law is
Criminal Procedure

With a focus on
6th Amd. - Due Process
(Lawyers, delays, impartial jury,
confrontation clause)
The Rule is

Due Process: The Due Process Clause requires that the prosecution prove all of the elements of
the case beyond a reasonable doubt. A mandatory presumption regarding an element of an
offense violates the due-process requirement. This could include either a conclusive
presumption that cannot be rebutted (which would relieve the prosecution of having to prove an
element of their case) or a rebuttable mandatory presumption (which shifts the burden of proof
regarding the element of the offense).
Right to Jury Trial: Any fact, other than a prior conviction, that can be used to increase a
sentence beyond the statutorily prescribed maximum must be charged in an indictment,
submitted to a jury, and established beyond a reasonable doubt. The failure to abide by this is a
violation of the defendant's due-process rights under the Fifth Amd. and Sixth Amd. rights to
notice and a jury trial, both of which are incorporated against the states through the 14th Amd..
A fact is an element of a crime, as opposed to a sentencing enhancement, when it increases the
max. sentence imposed.
A court should only grant a judgment of acquittal if it finds that there is insufficient evidence for
a jury reasonably to find the defendant guilty. In a criminal trial, the prosecution bears the burden
of producing sufficient evidence of the alleged crime.
The Area of law is
Evidence

With a focus on
Character Evidence
The Rule is

In a civil case, character evidence is not going to be admissible unless character is an essential
element of a claim.
In criminal cases: generally character evidence is not admissible.
- Defendant's own good character (relevant to the issue/type of character at issue) and
prosecution can, on cross examination can ask about specific acts.
- If Defendant attack's victim's character, the prosecution can rehabilitate victim's character OR
attack defendant's character (as long as its related to the trait the defendant is alleging the victim
had
In a criminal case, the prosecution is not permitted to introduce evidence of a defendant's bad
character to prove that the defendant has a propensity to commit crimes and therefore is likely to
have committed the crime in question.
Evidence of a defendant's crimes or other wrongful acts are admissible for a non-propensity
purpose such as proving motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident (MIMIC Evidence)
If the defendant makes their character an issue in the case by offering evidence of their good
character or the victim's bad character, the defendant opens the door to allow the prosecution to
rebut that evidence.
Habit: In a civil case, evidence of a person's character trait is generally inadmissible to prove that
the person acted in accordance with that trait on a particular occasion. Evidence of a person's
habit is admissible to prove that the person acted in accordance with the habit on a particular
occasion. A habit is a person's particular routine reaction to a specific set of circumstances.
Because habit evidence can run afoul of the bans on character evidence and prior bad acts
evidence, courts generally limit habit evidence to proof of relevant behaviors that are not just
consistent but semi-automatic.
Sexual Misconduct of the victim generally cannot be admitted, but in a civil case, the court can
admit evidence of the sexual behavior or predisposition of the victim if the probative value
substantially outweighs the prejudicial effect.
The Area of law is
Evidence

With a focus on
Character Evidence
The Rule is

In a civil case, character evidence is not going to be admissible unless character is an essential
element of a claim.
In criminal cases: generally character evidence is not admissible.
- Defendant's own good character (relevant to the issue/type of character at issue) and
prosecution can, on cross examination can ask about specific acts.
- If Defendant attack's victim's character, the prosecution can rehabilitate victim's character OR
attack defendant's character (as long as its related to the trait the defendant is alleging the victim
had
In a criminal case, the prosecution is not permitted to introduce evidence of a defendant's bad
character to prove that the defendant has a propensity to commit crimes and therefore is likely to
have committed the crime in question.
Evidence of a defendant's crimes or other wrongful acts are admissible for a non-propensity
purpose such as proving motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident (MIMIC Evidence)
If the defendant makes their character an issue in the case by offering evidence of their good
character or the victim's bad character, the defendant opens the door to allow the prosecution to
rebut that evidence.
Habit: In a civil case, evidence of a person's character trait is generally inadmissible to prove that
the person acted in accordance with that trait on a particular occasion. Evidence of a person's
habit is admissible to prove that the person acted in accordance with the habit on a particular
occasion. A habit is a person's particular routine reaction to a specific set of circumstances.
Because habit evidence can run afoul of the bans on character evidence and prior bad acts
evidence, courts generally limit habit evidence to proof of relevant behaviors that are not just
consistent but semi-automatic.
Sexual Misconduct of the victim generally cannot be admitted, but in a civil case, the court can
admit evidence of the sexual behavior or predisposition of the victim if the probative value
substantially outweighs the prejudicial effect.
 The Area of law is
Evidence

With a focus on
Confrontation Clause
The Rule is

An out of court statement that is offered against the D in a criminal case will be excluded if it
violates the 6th Amend. The out of court statement violates the 6th amendment when (1) the
declarant is unavailable (2) the defendant did not have an opportunity to cross examine the
declarant about the statement when they made that statement and (3) the statement is testimonial.
Testimonial means the statement was made in a prior court proceeding (2) it was made in
furtherance of a police investigation, meaning it helped the police obtain relevant evidence
regarding another case. To determine whether something is testimonial courts use an objective
test given the circumstances. Not Testimonial are statements that are made during an ongoing
police emergency and will be admitted because they don't violate the 6th amendment
confrontation clause and mainly help assist the police in the ongoing emergency. Business
records are also not testimonial because they are kept in the regular course of business etc.
The Area of law is
Evidence

With a focus on
Hearsay
The Rule is

Hearsay is an out-of-court statement that is offered to prove the truth of the matter asserted.
Hearsay evidence is generally inadmissible unless it falls within an exception or exclusion.
*always explain why or why not it is hearsay in an essay*
Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. A hearsay
statement may be an oral or written assertion and can be nonverbal conduct intended as an
assertion. Hearsay evidence is generally inadmissible unless it falls within an exception or
exclusion.
*always look out for double hearsay!*
 The Area of law is
Evidence

With a focus on
Hearsay Exceptions
(Unavailability Immaterial)
The Rule is

Present Sense Impression: a statement describing or explaining an event or condition that is

made while or immediately after the declarant perceived it is not excluded as hearsay.
Ancient Documents: at least 20 years old
Excited Utterance: A statement made about a startling event while the declarant is under the
stress of excitement that it caused is not excluded as hearsay. The event must shock or excite the
declarant, and the statement must relate to the event.
Recorded Recollection: allows into evidence a record on a matter the witness once knew about
but now cannot recall well enough to testify fully and was made when the matter was fresh in the
witness's memory. A written document admitted as recorded recollection may be read to the jury,
but it may not be received as an exhibit unless it is offered as such by the adverse party.
Past Medical Treatment or Diagnosis: Although there is no common-law privilege covering
statements made by a patient to a physician, most states protect such communications by statute,
so long as the communications were made for the purpose of obtaining medical treatment.
However, in many states, a patient is deemed to have waived the privilege by placing her
condition in issue in a personal injury lawsuit. A statement describing past or present symptoms
is not hearsay if it is made for medical diagnosis or treatment. A statement of the cause or source
of the condition is admissible if it is reasonably pertinent to diagnosis or treatment. The
statement need not be made to a physician and nor be made by the patient.
Then Existing State of Mind: A statement of present intent, motive, or plan can be admissible as
a hearsay exception to prove conduct in conformity with that state of mind.
Business Records Exception to Hearsay: Hearsay evidence is generally inadmissible unless it
falls within an exception or exclusion. A business record of an event or condition is not excluded
as hearsay if:
(i) the record was kept in the course of a regularly conducted activity of a business,
(ii) the making of the record was a regular practice of that activity, and
(iii) the record was made at or near the time by someone with knowledge.
Government Records: Certain records of public agencies and administrators may be excluded if
the circumstance is indicate a lack of trustworthiness. Activities; observation; and factual
findings are generally admissible
- Law enforcement: police reports being used against criminal defendants can only introduce the
activities, not what was observed or concluded. But, may still come in under the recorded
recollection exception (officer cannot remember)
Learned Treatises: May be used to impeach expert witnesses and as substantive evidence. May
be used as substantive evidence once it is established as a reliable authority, and expert relied on
it, or it was used to cross examine an expert.
 The Area of law is
Evidence

With a focus on
Hearsay Exceptions (w/
Unavailability)
The Rule is

Former Testimony: given by an unavailable witness under oath at a prior hearing or deposition is
admissible in a subsequent trial if the party against whom the testimony is being offered had an
opportunity and similar motive to develop the testimony by direct or cross-examination at the
prior trial, deposition, or hearing
Dying Declaration: requires that the individual believes she is dying; individual believes death is
eminent; and the statement relates to the cause or circumstances of death.
- ONLY Admissible in a homicide case or a civil case, but The declarant does not actually have
to die, just must be unavailable in some way
Statements Against Interest: At the time is was made, the statement was against the declarants
pecuniary, proprietary, civil, or penal interest, such that a reasonable person would not have
made the statement unless it were true.
- Exonerating statements: statements that would subject the declarant to a criminal liability or not
admissible unless corroborating circumstance clearly indicate the trustworthiness of the
statement.
Statement of Personal or Family History: Statements concerning the unavailable declarant's own
birth, adoption, marriage, familial relationship, etc. are admissible under this exception
Statement Offered Against Party Procuring Declarant's Unavailability: A party engages in
wrongdoing for the purpose of making the declarant unavailable to testify, and renders the
declarant unavailable, then: the party cannot claim the defendant is unavailable; and he door is
open to use anything the declarant said against the party
The Area of law is
Evidence

With a focus on
Hearsay Exclusions
The Rule is

Non-assertive conduct
Verbal Assertions/legally operative language: This statement is offered to prove that the
statement was made (verbal conduct) words that by their very meaning have legal significance
(i.e., “I do†)
Effect on the Listener: statements offered to prove something other than the truth of the matter
asserted are not hearsay. A statement offered to show the effect on the person who heard it is not
hearsay. (i.e. to show notice)
Circumstantial evidence of the State of Mind of Declarant: Evidence offered to show person's
state of mind is not hearsay (i.e.,“I am from mars†shows inanity)
Admissions by a Party Opponent: A statement made by a party to the current litigation is not
hearsay if it is offered by an opposing party.
- Adoptive admissions : a statement made by someone else, which is then expressly or impliedly
adopted
-- Can sometimes adopt a statement by silence - Requirements:
the party heard the statement and understood it;
the party had the ability to respond to; and
a reasonable person similarly situated would've denied the statement.
- Vicarious admissions: statements made by persons authorized to speak on a party's behalf -
speaking agents
-- statements made by agents or employees if made within the scope of employment
- Co-Conspirators: Statements made by co-conspirators during and in furtherance of a conspiracy
are admissible against other co-conspirators.
Prior Inconsistent statements: must have been made under oath at a trial, hearing, or deposition.
- Note: any prior inconsistent statement can be used to impeach (non-hearsay purpose).
A previous out-of-court identification of a person after perceiving that person is not hearsay and
may be admissible as substantive evidence. Even if the witness has no memory of the prior
identification, it will be admissible because the witness is subject to cross-examination about the
prior identification.
Present Recollection Refreshed: use of a writing may be admitted to refresh a witness's
recollection for purposes of testifying.
- Note: the witness must be able to testify from memory after looking at the item; can come into
evidence only if the adverse party so requests.
The Area of law is
Evidence

With a focus on
Impeachment
The Rule is

Prior Conviction: Any witness can be impeached by evidence that they have been convicted of a
crime that involved dishonesty or false statement, regardless of the punishment imposed or the
prejudicial effect of the evidence. However, conviction for a crime not involving fraud or
dishonesty is admissible to impeach only if the crime is punishable by death or imprisonment for
more than one year. A crime involves dishonesty or false statement if establishing the elements
of the crime requires proof or admission of an act of dishonesty or false statement.
Bias: Because a witness may be influenced by his relationship to a party, his interest in testifying,
or his interest in the outcome of the case, a witness's bias or interest is always relevant to the
credibility of his testimony. Although the Federal Rules do not expressly require that a party ask
the witness about an alleged bias before introducing extrinsic evidence of that bias, many courts
require that such a foundation be laid before extrinsic evidence of bias can be introduced.
A witness can be impeached by another witness's opinion about the initial witness's credibility,
trustworthiness, etc., but not generally about specific instances of conduct.
You can ask a witness who has just testified about a specific act, but you are stuck with answer,
so if they say no, the inquiry ends
Felony conviction (not involving truth/honesty) may be admitted against a non-defendant
witness under 403 balancing test (its probative value substantially outweighs the danger of harm
to any victim and of unfair prejudice to any party.)
- Used against the defendant if probative value outweighs its prejudicial effect
If more than 10 years have passed since the conviction or since the release (whichever is later)
the evidence will ONLY come in if the probative value substantially outweighs the prejudicial
effect AND the proponent gives notice to the other side.
Prior inconsistent statement can be brought in to impeach a witness
Sensory competence (mental or physical abilities of the witness) can be brought in to challenge
the witness statement
Can impeach a hearsay declarant even if they aren't currently in court
Rehabilitating a witness: Can clarify or bring in other witnesses to testify as to truthfulness or
prior consistent statement
The Area of law is
Evidence

With a focus on
Impeachment
The Rule is

Prior Conviction: Any witness can be impeached by evidence that they have been convicted of a
crime that involved dishonesty or false statement, regardless of the punishment imposed or the
prejudicial effect of the evidence. However, conviction for a crime not involving fraud or
dishonesty is admissible to impeach only if the crime is punishable by death or imprisonment for
more than one year. A crime involves dishonesty or false statement if establishing the elements
of the crime requires proof or admission of an act of dishonesty or false statement.
Bias: Because a witness may be influenced by his relationship to a party, his interest in testifying,
or his interest in the outcome of the case, a witness's bias or interest is always relevant to the
credibility of his testimony. Although the Federal Rules do not expressly require that a party ask
the witness about an alleged bias before introducing extrinsic evidence of that bias, many courts
require that such a foundation be laid before extrinsic evidence of bias can be introduced.
A witness can be impeached by another witness's opinion about the initial witness's credibility,
trustworthiness, etc., but not generally about specific instances of conduct.
You can ask a witness who has just testified about a specific act, but you are stuck with answer,
so if they say no, the inquiry ends
Felony conviction (not involving truth/honesty) may be admitted against a non-defendant
witness under 403 balancing test (its probative value substantially outweighs the danger of harm
to any victim and of unfair prejudice to any party.)
- Used against the defendant if probative value outweighs its prejudicial effect
If more than 10 years have passed since the conviction or since the release (whichever is later)
the evidence will ONLY come in if the probative value substantially outweighs the prejudicial
effect AND the proponent gives notice to the other side.
Prior inconsistent statement can be brought in to impeach a witness
Sensory competence (mental or physical abilities of the witness) can be brought in to challenge
the witness statement
Can impeach a hearsay declarant even if they aren't currently in court
Rehabilitating a witness: Can clarify or bring in other witnesses to testify as to truthfulness or
prior consistent statement
The Area of law is
Evidence

With a focus on
Policy Exclusions
The Rule is

Subsequent remedial measures: When a party takes remedial measures that would have made an
earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible
to prove negligence or culpable conduct.
Compromise offers: made by any party are not admissible to prove the validity of a disputed
claim, nor are they admissible for impeachment by prior inconsistent statement or contradiction.
Settlement offers or things said while in negotiation are not admissible
- There must be a pending dispute (i.e. not at the scene of the accident before any
disagreement/dispute as to fault)
Evidence of liability insurance is not allowed in to show liability.
Evidence of the payment, offer to pay, or promise to pay medical or similar expenses resulting
from an injury is not admissible to prove liability for the injury. Unlike compromise offers, the
validity or amount of a claim need not be in dispute.
Rape Shield Law: Generally, pursuant to the “rape shield†rule, evidence to prove the
sexual behavior or predisposition of an alleged victim of sexual assault is not admissible in either
civil or criminal proceedings. However, in a civil case
Evidence offered to prove an alleged victim's sexual behavior or predisposition is admissible if
its probative value substantially outweighs the danger of harm to any victim and of unfair
prejudice to any party.
The Area of law is
Evidence

With a focus on
Privileges
The Rule is

Spousal Testimonial Privilege: a spouse can refuse to testify against the other spouse
- Only applies to the testifying spouse and while the spouses are still married
Confidential Marital Communications: survives the marriage, but there has to be some conduct
that indicates it is intended to be confidential (not shared with others)
The Area of law is
Evidence

With a focus on
Relevance
The Rule is

As a rule, evidence must be relevant to be admissible, and all relevant evidence is admissible
unless excluded by a specific rule, law, or constitutional provision. Evidence is relevant if: (i) it
has any tendency to make a fact more or less probable, and (ii) the fact is of consequence in
determining the action. additionally, evidence will not be admitted id the probative value is
substantially outweighed by the risk of prejudice, confusing the issues, or misleading the jury
The Area of law is
Evidence

With a focus on
Witness Testimony
The Rule is

Relevance : All relevant evidence is admissible unless excluded by a specific rule, law, or
constitutional provision. Evidence is relevant if
(i) it has any tendency to make a fact more or less probable than it would be without the evidence
(i.e., probative), and
(ii) the fact is of consequence in determining the action (i.e., material).
Witnesses must be competent; they must have personal knowledge as to what they are testifying
about.
A lay witness is generally not permitted to testify as to his opinion, except with respect to
common-sense impressions. To be admissible, the opinion must be
(i) rationally based on the witness's perception, and
(ii) helpful to a clear understanding of the witness's testimony or a fact in issue.
An expert witness may testify as to his opinion, provided:
(i) the witness is qualified as an expert by knowledge, skill, experience, training, or education;
(ii) the testimony is based on sufficient facts or data;
(iii) the testimony is the product of reliable principles and methods; and
(iv) the witness applied the principles and methods reliably to the facts of the case.
The Area of law is
Family Law

With a focus on
Adoption
The Rule is

The right of an unwed father to object to an adoption may be denied if the father does not
demonstrate a commitment to the responsibilities of parenthood, but cannot be denied if such a
commitment has been made....
The Area of law is
Family Law

With a focus on
Divorce
The Rule is

Most jurisdictions recognize both fault and no-fault grounds for divorce. In most states, the fact
that a divorce is granted on a fault ground, such as adultery, is not a factor in the distribution of
property....
 The Area of law is
Family Law

With a focus on
Equitable Distribution
The Rule is

The objective of the equitable-distribution system is to order a fair distribution of all marital
property, taking into consideration all of the circumstances between the parties. In most states,
all property acquired during the marriage is marital property and subject to equitable distribution.
Courts consider a number of factors in determining the equitable distribution of marital property.
Some of the relevant factors in this case include the length of the marriage, the age, health,
earning potential, and needs of both spouses, the value of separate property, the spouses' standard
of living, and economic circumstances of each spouse at the time of divorce.
Equitable distribution is not necessarily an equal division of marital assets. Courts consider a
number of factors, including the length of the marriage, contributions to the marital estate, and
custodianship of children.
The Area of law is
Family Law

With a focus on
Marital Property
The Rule is

Marital property is subject to equitable distribution upon divorce. Separate property, including
assets acquired before marriage or by gift/inheritance, is generally not subject to division.
 The Area of law is
Family Law

With a focus on
Marital vs. Separate Property
The Rule is

In most states, all property acquired during the marriage is marital property and subject to
equitable distribution. Property acquired by one spouse between filing and granting a divorce
can be treated as marital property until a divorce decree has been entered. However, some
jurisdictions treat property acquired after permanently separating from the other spouse as
separate property. Still other states draw the line between marital and separate property on the
date that the divorce action is filed.
Whether the appreciation in nonmarital property will be subject to equitable distribution will
depend on whether the appreciation can be attributable to spousal labor.
The majority of jurisdictions do not treat a professional license or degree as a distributable
property interest.
- A court may use its equity power to award a spouse reimbursement for his actual contribution
toward the other spouse's educational and related living expenses.
- A court may, however, view an advanced degree or license as increased earning capacity, which
may have an effect on the determination of alimony.
The Area of law is
Family Law

With a focus on
Marriage
The Rule is

A marriage that is valid under the law of the place in which it was contracted will be valid
elsewhere unless it violates a strong public policy of the state that has the most significant
relationship to the spouses and the marriage.
Almost all states recognize common-law marriages that were entered into in a jurisdiction that
does recognize such relationships if the parties were domiciled in that state and their conduct
meets the requirements of the state's law for establishing such a marriage
Common-law marriages are defined as marriage when the parties: (i) agree they are married; (ii)
cohabit as husband and wife; and (iii) hold themselves out in the public as married. The court
may look to cohabitation or reputation to determine if the couple holds or held themselves out as
husband and wife.
If either party is still part of a valid marriage, a subsequent marriage is void. There is a
presumption that the most recent marriage is valid. However, this presumption is rebuttable by
cogent evidence of the existence of a prior valid marriage at the time that the latest marriage was
entered into. A valid marriage, including common law marriage, can be terminated only by
annulment, divorce, or death.
Most states have adopted a version of the putative spouse doctrine. Under the doctrine, a party
who participated in a ceremonial marriage and believes in good faith that the marriage is valid
may use a state's divorce provisions if the marriage is later found void due to an impediment.
Although this claim does not result in a divorce, it does provide equitable relief through
maintenance and property distribution.
 The Area of law is
Family Law

With a focus on
Mediated Settlement
The Rule is

When a mediator participates in the creation of a settlement agreement, misconduct by the

mediator can give rise to grounds for setting aside the agreement. There are several standards a
mediator must comply with in the mediation process.
- A mediator must conduct the mediation process in an impartial manner and disclose all
potential grounds of bias and conflicts of interest.
- A mediator is also required to facilitate the participants' understanding of what mediation is.
- Additionally, a mediator is required to recognize a family situation involving domestic abuse
and take appropriate steps and shape the mediation process accordingly.
- Finally, a mediator is required to structure the mediation process so that the participants make
decisions based on sufficient information and knowledge.
 The Area of law is
Family Law

With a focus on
Modification of Support &
Awards
The Rule is

Though a support award can be modified subsequent to a divorce decree, the property division
award cannot be modified. Unlike support awards, which are subject to changing circumstances,
the division of the marital assets was determined based upon known facts and circumstances as
they existed at the time of divorce.
Spousal support awards can be modified based upon a significant change in a party's
circumstances.
Modification of child support orders is governed by the Uniform Interstate Family Support Act
(UIFSA). Under UIFSA, a state court does not have jurisdiction to modify an order of child
support rendered by a court of another state if the original state has continuing, exclusive
jurisdiction. This rule applies unless the parties, including the child, no longer reside in that state
or the parties expressly agree to another state's jurisdiction.
State courts have subject matter jurisdiction over domestic relations issues. A petition to modify
a property settlement related to divorce is a domestic relations issue. Unlike child support,
UIFSA does not apply to divorce related property disputes so those jurisdictional rules do not
limit the state's jurisdiction. The court may exercise personal jurisdiction over an individual if
that person is voluntarily present in the state and served with process while there.
Although a modification to child support may be made for the period while the cause of action is
pending, states cannot retroactively modify child support before the date of service of process.
Generally, a state may prospectively modify a child support order when there is a substantial
change in circumstances regarding the child's needs or the parent's financial situation. The
parent requesting the modification has the burden of showing a substantial change in
circumstances such as a significant decrease in income.
When a parent voluntarily changes his employment, a reduction in income alone is not sufficient
proof of substantial changes in circumstances. The courts will consider the parent's earning
capacity and other factors surrounding the change before deciding whether to modify the support
order.
Spousal support is an obligation of one party to provide financial support to the other after a
divorce. Courts can modify a spousal support order based on a significant change in
circumstances.
 The Area of law is
Family Law

With a focus on
Modification of the Parent-
Child Relationship
The Rule is

Traditionally, courts have been loath to modify an established parent-child relationship, citing the
child's best interest as reason to deny admission of evidence of non-paternity or to deny a motion
to disestablish paternity.
Under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which has been
widely adopted, a court has subject matter jurisdiction to preside over custody hearings and
either enter or modify custody or visitation orders if the state is:
(i) the child's home state and has been the home state for a period of six months; or
(ii) was the child's home state in the past six months and the child is absent from the state, but
one of the parents (or guardians) continues to live in the state.
In such a situation, when there is no home-state jurisdiction, the UCCJEA permits a court to
enter or modify an order if
(i) the child and at least one parent have a significant connection with the state, and
(ii) there is substantial evidence in the state concerning the child's care, protection, training and
personal relationships.
The standard for determining child custody is the best interests of the child. Most courts will
consider the wishes of the child if the court can determine that the child has a sufficient maturity
to express a preference. Although age is not the sole factor in determining whether a child
should be consulted, it is considered by the court. If children are consulted, the court evaluates
the reasons behind the preference.
The Supreme Court has held that a fit parent has a fundamental right to the care, custody, and
control of his children and state courts must give “special weight†to a fit parent's
decisions on care, custody, and control.
A fit parent has a fundamental right to the care, custody, and control of her children. As such,
state courts must give special weight to a fit parent's decision to deny nonparent visitation, unless
denying visitation would be detrimental to the child. In some situations, the courts will grant
visitation to a third party, such as a stepparent. However, this is typically limited to those cases
in which the third party lived with the child for an extended period of time and acted as a de
facto parent prior to the divorce.
 The Area of law is
Family Law

With a focus on
Premarital Agreements
The Rule is

To prevent enforcement of a premarital agreement, the UPAA (Uniform Premarital Agreement

Act) requires that the party against whom enforcement is sought prove
(i) involuntariness, or
(ii) that the agreement was unconscionable when it was executed, that she did not receive or
waive fair and reasonable disclosure, and she “did not have, or reasonably could not have had,
an adequate knowledge†of the other's assets and obligations.
The agreement must be in writing and signed by the party to be charged. Premarital agreements
must provide full disclosure of financial status, including income, assets, and liabilities of all
parties. Absent full disclosure, a court will generally refuse to enforce the agreement. Most
courts evaluate fairness at the time of the execution of the contract. The current trend is for
courts to enforce contractual agreements that may not be fair as long as there has been fair
disclosure. To be voluntary, the parties must enter in the contract free of fraud, duress, or
misrepresentation. A party's insistence on the agreement as a condition to marriage is not
considered duress on its own. Entering into a contract voluntarily generally means there was no
fraud, duress, or misrepresentation. Courts consider factors such as time-pressure, the parties'
previous business experience, and the opportunity to be represented by independent counsel.
A court may always modify child support or custody provisions in a marital agreement, even if
the agreement states that modification is not permitted. Thus, the majority of jurisdictions find
that clauses relating to child custody and support are unenforceable. Instead, the court will make
an independent decision based on the best interests of the child.
 The Area of law is
Family Law

With a focus on
Separation Agreements
The Rule is

Separation agreements can be invalidated, in whole or in part, if the court makes a finding of
fraud or unconscionability. A contract is unconscionable when it is so unfair to one party that no
reasonable person in the position of the parties would have agreed to it. The contract or part of
the contract at issue must have been offensive at the time it was made. Unconscionability may
also be applied to prevent unfair surprise.
The Area of law is
Family Law

With a focus on
Spousal Support
The Rule is

Spousal support may be a lump sum, permanent, limited duration, rehabilitative, or

reimbursement.
Permanent spousal support is typically awarded only when the marriage was one of long
duration. Although jurisdictions differ on the definition of “long-term,†it typically refers
to a marriage of 15 years or more.
Rehabilitative support is for a limited period of time, such as until the spouse receives education
or employment. The purpose of this type of support is to enhance and improve the earning
capacity of the economically dependent spouse. The court would consider other factors
including the couple's standard of living during the marriage, the time it will take for a spouse to
complete any education or training, the length of the marriage, and the parties' age and health.
Spousal support is generally awarded in a divorce if one spouse cannot provide for his own needs
with employment. Most jurisdictions consider factors such as the financial resources and needs
of each party, length of the marriage, contributions by one spouse to the marriage, and age and
health. Some states consider marital misconduct as a factor.
 The Area of law is
Family Law

With a focus on
Spousal Support (Alimony)
The Rule is

Spousal support is determined based on factors such as the duration of the marriage, the standard
of living established during the marriage, the financial resources of each party, and the
contributions of each party to the marriage.
 The Area of law is
Partnerships

With a focus on
Actual and Apparent authority
The Rule is

Actual authority: A partner is an agent of the partnership for the purpose of its business and can
contractually bind the partnership when the partner acts with either actual or apparent authority.
A partner's act that was authorized by the partnership binds the partnership. Actual authority
includes express authority and implied authority. Express authority can arise from the partnership
agreement itself, the partners authorization, or a statement of authority that is filed with the state.
Apparent authority: Under the principle of apparent authority, even if a partner's act is not
authorized by the partnership, the partner's act can still bind the partnership. Apparent authority
applies when the partner performs the unauthorized act in the ordinary course of apparently
carrying on the partnership's business or the kind of business that is carried out by the
partnership. But a third party who is dealing with the partner cannot hold the partnership liable
when the third party knew or had received notification that the partner lacked authority. For the
partnership to escape liability, the third party generally must have actual knowledge of the
partner's lack of actual authority.
The Area of law is
Partnerships

With a focus on
Fiduciary Duties
The Rule is

Duty of Loyalty/Care A partner owes the partnership and the other partners two fiduciary duties -
the duty of loyalty and the duty of care. Under the duty of loyalty, a partner is prohibited from
using partnership property or business to derive a personal benefit without notifying the
partnership. Under the duty of care, a partner is prohibited from engaging in grossly negligent or
reckless conduct, intentional misconduct, or a knowing violation of the law.
Legal Action: A partnership may pursue legal action against a partner for breach of the
partnership agreement or for violating a duty owed to the partnership that caused the partnership
harm. A partner may pursue a legal action against the partnership or another partner to enforce
the partner's rights under the partnership agreement or the RUPA.
 The Area of law is
Partnerships

With a focus on
Partners Rights to Books and
Records (Transferee rights)
The Rule is

A partnership must provide its partners and their agents with access to all its records, however a
transferee is not entitled to participate in the management or conduct of the partnership business
or access partnership records. A transfer of a partner's partnership interest does not make the
transferee a partner unless the other partner or partners consent to making the transferee a
partner.
 The Area of law is
Partnerships

With a focus on
General Partnership Formation
The Rule is

Intent: A general partnership is an association of two or more persons to carry on a for-profit

business as co-owners. To form a general partnership, at least two persons must intend to carry
on a business for profit as co-owners but it is not necessary that they specifically intent to form a
general partnership. Individuals can inadvertently form a general partnership unless they express
their intention to do something else. Their subjective intent is irrelevant.
Profits sharing test - payment of debt: When two or more persons carry on as co-owners of a
business for profit, it is presumed that they are partners, whether or not the persons intend to
form a partnership. However, a partnership does not exist between persons when one person
receives profits in payment of a debt.
A partnership is an association of two or more persons to carry on a for-profit business as co-
owners. A partner is jointly and severally liable for all partnership obligations. Because a
partner is an agent of the partnership, the partnership is liable for a partner's tortious acts,
including fraud, committed in the ordinary course of the partnership's business or with the
partnership's authority, whether actual or apparent. Unless there is also a judgment against the
partner, a judgment against a partnership cannot be satisfied from a partner's assets, only from
the partnership's assets. Even though a partner is personally liable for a partnership obligation, a
partnership creditor generally must exhaust the partnership's assets before levying on the
partners' personal assets.
The Area of law is
Partnerships

With a focus on
Liability
The Rule is

Vicarious liability: is a form of strict liability in which one person is liable for the negligent
actions of another. An employer is liable for the tortious conduct of an employee that is within
the scope of employment.
Eggshell Plaintiff Rule: Under the “eggshell skull†rule, a defendant is liable for the full
extent of the plaintiff's injuries due to the plaintiff's preexisting physical or mental condition or
vulnerability, even if the extent is unusual or unforeseeable.
Liability for Non-delegable Duty: Those who engage an independent contractor (one hired to
accomplish a task or result but not subject to a right of control by the employer) are generally not
vicariously liable for the torts of the independent contractor. The person who hires an
independent contractor remains vicariously liable for certain conduct, including inherently
dangerous activities and non-delegable duties (i.e., activities that are inherently risky or that
affect the public at large).
Rescuer to Aid another: Liability typically extends only to foreseeable plaintiffs and hazards. A
person who comes to the aid of another is a foreseeable plaintiff. If the defendant negligently
puts either the rescued party or the rescuer in danger, then he is liable for the rescuer's injuries.
An employer is liable for an employee's torts if the employer has the right to control the
employee's acts and the tortious conduct is committed within the scope of employment.
 The Area of law is
Partnerships

With a focus on
Limited Liability Partnership
(LLP)
The Rule is

Conversion of Partnership to LLP : Filing of a statement of qualification transforms a partnership

into an LLP, but this does not create a new partnership. A limited liability partnership
(“LLP†) is a partnership where a partner's personal liability for obligations of the
partnership is eliminated. In other respects, an LLP is governed by the same rules as a
partnership.
Liability for Pre-Partnership Obligations: A partner is jointly and severally liable for all
partnership obligations. Even though a limited partner in an LLP is not personally liable for the
obligation of an LLP, limited liability partnership status is generally only effective the date that
the statement of qualification is filed with the state and not before.
Conversion of GP to LLP : A partnership may be converted into a limited liability partnership.
Unless the partnership agreement specifies otherwise, the conversion must be approved by all of
the partners of the general partnership. Once the conversion is approved, the partnership must
file the articles of qualification with the state. A general partner who becomes a limited partner
as a consequence of a conversion remains liable for any obligation incurred by the partnership
before the conversion.
New Partner Liability for Preexisting Obligations: A limited liability partnership (LLP) is a
partnership where the partners are not personally liable for obligations of the partnership. To
enjoy the limited liability of an LLP, the partnership must file a statement with the state. In other
respects, an LLP is governed by the same rules as a partnership. A limited partner in an LLP is
not personally liable for the obligation of an LLP, regardless of the type of obligation. But, a
limited partner is personally liable for his or her own personal misconduct.
 The Area of law is
Partnerships

With a focus on
Limited Partnership (LP)
The Rule is

Requirements for LP: A limited partnership is a partnership formed by two or more persons that
has at least one general partner and at least one limited partner. To form a limited partnership, a
certificate of limited partnership must be filed with the state and must include the name and
address of each general partner. In addition, all of the general partners must sign the certificate.
The limited partnership comes into existence upon the filing of the certificate of limited
partnership. If a certificate is not filed, the limited partnership is not formed. (If No LP then
discuss GP, see below)
When LP fails, a GP formed: A general partnership is an association of two or more persons to
carry on a for-profit business as co-owners. In order to form a general partnership, at least two
persons must intend to carry on a business for profit as co-owners but it is not necessary that they
have the specific intent to form a general partnership. Individuals can inadvertently form a
general partnership notwithstanding their expressed intention to do something else.
 The Area of law is
Partnerships

With a focus on
Partnership Property
The Rule is

Property is partnership property if it is acquired in the name of the partnership. It is property of

the partnership and not of the partners individually. A partner may use or possess partnership
property only on behalf of the partnership....
 The Area of law is
Partnerships

With a focus on
Transfer of partnership interest
The Rule is

A partner has a transferable partnership interest, i.e., a partner may transfer the right to share in
the profits and losses of the partnership and to receive distributions. The transfer of that
partnership interest creates in the transferee a right to receive distributions to which the transferor
would otherwise be entitled.
 The Area of law is
Partnerships

With a focus on
Withdrawal/Dissociation
The Rule is

Effects of Wrongful Dissociating Partner: A partner can withdraw or dissociate from a

partnership at any time, even if the dissociation is wrongful, such as when it violates an express
provision of the partnership agreement. A partner who wrongfully dissociates is liable to the
partnership and the other partners for damages caused by the dissociation. In addition, a
dissociated partner generally does not have the right to participate in the management or conduct
of the partnership business and cannot participate in winding up the business.
Effects of Wrongful Dissociation on Partnership: Dissociation may, but does not necessarily,
result in dissolution of the partnership and the winding up of its business. Wrongful dissociation
creates a possibility of dissolution, if, within 90 days of dissociation, a majority of the remaining
partners express a will to wind up the business. If dissolution results, the dissociated partner is
not entitled to any payout until the end of the original term unless the partner can prove to the
court that earlier payment would not cause undue hardship to the business.
Effects of Rightful Dissociation on Partner: Dissociation that complies with the provisions of the
partnership agreement may also trigger dissolution, such as when it is an at-will partnership
agreement with no definite term or when the partnership agreement so provides. If the
dissociating partner's withdrawal is not wrongful, the partner is not liable for damages and would
retain the right to participate in the dissolution and winding up the partnership.
Effects of Rightful Dissociation on Partnership: Once a partnership has been dissolved, but
before the winding up of its business is complete, the partnership may choose to resume carrying
on its business as if dissociation had never occurred. To do so, all partners (including any
rightfully dissociated partners) must agree to waive the right to terminate the partnership within
90 days of dissociation. A person winding up the partnership business may preserve the business
or property as a going concern for a reasonable time to maximize its value.
Dissociated Partner's Liability during Winding-Up Process: The partnership is not terminated
until the partnership business is wound up. After dissolution, the partnership is bound by a
partner's act that is appropriate for winding up the partnership. Each partner is liable to the other
partners for his share of partnership liability incurred by such post-dissolution acts. Further,
although a dissociated partner loses any right to participate in the business, his apparent authority
to bind the partnership lingers after dissociation for up to two years.
 The Area of law is
Professional Responsibility

With a focus on
Confidentiality
The Rule is

Attorneys must maintain client confidentiality, with exceptions for preventing reasonably certain
death or substantial bodily harm, and complying with other legal obligations.
 The Area of law is
Professional Responsibility

With a focus on
Conflicts of Interest
The Rule is

Attorneys must avoid conflicts of interest, including representing clients with directly adverse
interests unless there is informed consent, confirmed in writing.
 The Area of law is
Real Property

With a focus on
Assignment & Sublease
The Rule is

Absent any language to the contrary, a lease can be freely assigned or sublet. The assignee of a
month-to-month tenant takes a month-to-month tenancy. When a tenant assigns his interest in a
lease, privity of estate arises between the assignee and the landlord. Assignee tenants are liable
to the landlord for rent. However, privity of contract continues to exist between the landlord and
the tenant. If the assignee fails to pay the rent, then the tenant is liable to the landlord.
Assignment at LL discretion: When a lease prohibits the tenant from assigning the lease, the
tenant may nevertheless assign; however, the landlord generally can then terminate the lease for
breach of one of its covenants and recover any damages. When a lease prevents assignment
without the permission of the landlord, and the lease is silent as to a standard for exercising that
permission, the modern trend imposes a requirement that the landlord may withhold permission
only on a reasonable ground in relation to the property being leased and not on a whim or
personal prejudice. The traditional rule is that the landlord may withhold permission at his
discretion.
The Area of law is
Real Property

With a focus on
Landlord/Tenant
The Rule is

Constructive Eviction: When a landlord substantially interferes with the tenant's use and
enjoyment of the property by breaching a duty to the tenant, the tenant's obligation to pay rent
may be excused under the theory of constructive eviction. In order to end a lease before the end
of its term by constructive eviction, the landlord must have breached a duty, which caused the
loss of the substantial use and enjoyment of the premises, the tenant must give the landlord
notice of the problem and reasonable opportunity to cure, and the tenant must vacate the property
within a reasonable period of time. Not every interference with the use and enjoyment of the
premises amounts to a constructive eviction. Temporary or de minimis acts which do not amount
to a permanent expulsion generally do not amount to constructive eviction.
Landlord Duty to Repair Commercial Leases: Under the common law, there was no implied duty
on the part of the landlord to repair leased premises. However, the majority of jurisdictions
today enforce an implied duty upon the landlord to repair under a residential lease, even when
the lease attempts to place the burden on the tenant, except for damages caused by the tenant. In
contrast, courts are reluctant to imply a landlord's duty to repair in commercial leases because the
implied warranty of habitability does not apply in commercial leases. Here, it is not clear what
language was in the lease regarding repairs, but absent any specific duty in the lease to fix the air
conditioner, the landlord was likely not required to make any such repairs. Moreover, the
covenant of quiet enjoyment is breached only when the landlord, someone claiming through the
landlord, or someone with superior title disrupts the possession of the tenant. Accordingly, there
is no duty to repair implicit in the covenant.
Termination of Lease: Termination of a lease occurs automatically upon the expiration of the
term. Termination may also occur before the expiration of the term when the tenant surrenders
the leasehold, and the landlord accepts the return of the leasehold. When a tenant abandons the
leasehold without justification, the landlord may treat the abandonment as an offer of surrender
and could accept that surrender by retaking the premises.
Duty to Mitigate Damages : When a tenant abandons the leasehold, the landlord may treat the
abandonment as an offer of surrender and accept such surrender, or the landlord may attempt to
re-rent the premises on the tenant's behalf and hold the tenant liable for any deficiency. The
majority of jurisdictions now require a landlord to mitigate damages by attempting to re-rent the
premises in the event that the tenant abandons the property and breaches of the lease.
LL duty to mitigate by re-renting: The issue is whether the landlord satisfied the duty to mitigate
damages following the tenant's abandonment of the premises. Many states impose on the
landlord a duty to make reasonable efforts to mitigate damages when a tenant abandons a lease.
What constitutes a reasonable effort depends on the circumstances; however an owner of
multiple vacant apartments is typically required only to treat the premises as one of his vacant
stock.
LL can't sue for rent that's not yet due: Furthermore, the doctrine of anticipatory breach does not
apply to leases. While the landlord may sue the tenant for rent as it becomes due, a landlord may
not sue for future rent under the lease.
Rent From Co-Tenants: A co-tenant must account to other co-tenants for rent received from third
parties, but can deduct operating expenses, including necessary repairs, when calculating net
proceeds. Third-party rents are divided based on the ownership interest of each tenant.
A warranty of fitness or suitability: is implied in a contract for the sale of a newly constructed
residence. Under this type of warranty, the seller warrants that he used adequate materials and
good workmanship in working on the residence. The implied warranty generally covers latent
construction defects, such as a defective electrical, plumbing, or mechanical system, or a leaky
roof or drainage problem that does not manifest itself until after the sale. Damages are generally
based on the cost of repairs to bring the residence into compliance with the warranty.
The Area of law is
Real Property

With a focus on
Concurrent Estates
The Rule is

The majority view is that a survivorship contingency applies at the termination of the interests
that precede distribution of the remainder. Another approach interprets a survivorship
contingency to require surviving only the testator and not the life tenant
A tenancy in common is any tenancy with two or more grantees with equal rights to possess or
use the property, but no right of survivorship. On the other hand, a joint tenancy exists when two
or more persons own property with the right of survivorship. The joint tenancy must be created
with each joint tenant having the equal right to possess or use the property, with each interest
equal to the others, at the same time, and in the same instrument. In most states, there is
presumption that a conveyance to two or more persons creates a tenancy in common rather than a
joint tenancy. To determine if a joint tenancy was created, modern law calls for a clear expression
of intent and survivorship language.
Ones execution of mortgage severs the joint tenancy : The issue is whether the ___ execution of
the mortgage to the ___ severed the joint tenancy with his wife. A joint tenancy exists when at
least two people own property with the right of survivorship. In addition to the right of
survivorship, each joint tenant must have the four unities: the right to possess or use the property
and equal interests which were created at the same time and in the same instrument. The
severance of joint tenancy may occur in several ways and converts it into a tenancy in common.
A joint tenant may grant a mortgage in his joint tenancy interest. In title theory states, which is
the minority of states, the granting of a mortgage constitutes a transfer of title. A transfer of title
severs the joint tenancy and converts it into a tenancy in common.
whether the execution of the lease severed the joint tenancy : There is a split among jurisdictions
with respect to joint tenancies when one joint tenant leases his interest. Some jurisdictions hold
that the lease destroys the unity of interest and thus severs the joint tenancy, while other
jurisdictions believe that the lease merely temporarily suspends the joint tenancy, which resumes
upon expiration of the lease.
TIC Default Tenancy when JT Fails : A tenancy in common exists when two or more co-owners
have an equal right to possess property, but do not have a right of survivorship. In that case, each
co-tenant holds an undivided interest with unrestricted rights to possess the whole property,
regardless of the size of the co-tenant's interest. Each tenant can unilaterally transfer, devise,
mortgage, or lease his interest to a third party, without affecting the interest of the other tenants.
A joint tenant may grant a mortgage interest in the joint tenancy property to a creditor. Most
states apply the lien theory, which states that the mortgage is only a lien on the property and does
not sever the joint tenancy absent a default and foreclosure sale. In this case, Jessie's mortgage
on her interest in the farm did not sever the joint tenancy. A minority of states apply the title
theory, which states that the mortgage severs title and the tenancy would be converted into a
tenancy in common.
Joint tenants can convey all or part of their individual interests during their lifetimes to a third
party, thereby severing the joint tenancy. A joint tenancy is severed when one of the joint tenants
contracts to sell her interest in the property.
The Area of law is
Real Property

With a focus on
Defeasible Fees
The Rule is

A fee simple determinable is limited by specific durational language (e.g. “so long asâ€
“until†). It terminates automatically upon the happening of a stated condition and full
ownership of the property is returned to the grantor (or his successor in interest). The grantor
retains a possibility of reverter. Must use the specific durational language for creating a fee
simple determinable and include language that suggested Owner intended to retain a possibility
of reverter.
A fee simple subject to condition subsequent is limited in duration by specific conditional
language (“provided that†“but if†). Upon occurrence of the stated condition, the
present fee simple will terminate if the grantor affirmatively demonstrates an intent to terminate.
The grantor must explicitly retain the right to terminate the fee simple subject to condition
subsequent in the conveyance.
The Area of law is
Real Property

With a focus on
Dereds
The Rule is

General Warranty Deed: The grantor of a general warranty deed guarantees that he holds six
covenants of title, three of which are present covenants. The three present covenants are the
covenant of seisin, the covenant of the right to convey, and the covenant against encumbrances.
The covenant against encumbrances, which applies to this situation, guarantees that the deed
contains no undisclosed encumbrances. A breach of the covenant against encumbrances occurs
when a property is encumbered by a mortgage, lease, easement, or covenant not specified in the
deed.
Recovery of Damages for breach of covenant under deed: A breach of the covenant against
encumbrances occurs when a property is encumbered by a mortgage, lease, easement, or
covenant not specified in the deed. Even if the deed is silent, a breach will not be recognized if
the grantee had knowledge of the encumbrance, if it was visible, or if it benefitted the land. A
buyer can recover for breach of the covenant against encumbrances the lesser of the difference in
value between title with and without the defect, or the cost of removing the encumbrance.
The Area of law is
Real Property

With a focus on
Easements
The Rule is

Easement terminated by Merger: An easement is terminated if the owner of the dominant or

servient estate acquires fee title to the other estate. The easement is said to “merge†into
the title. The merger of property interests results in the extinguishment of the property right.
Easement by Implication: The issue is whether the prior use over land implied an easement over
land when Blank sold land to Blank If the owner of two parcels of land previously used one
parcel to benefit the other, then the court may find that, upon the transfer of one parcel, the
parties intended the use to continue if that use was continuous, apparent or known, and
reasonably necessary to the dominant land's use and enjoyment (as distinguished from an
easement by necessity, which requires strict necessity).
Easement Termination by Abandonment The issue is whether ___ has abandoned its interest.
Easements can terminate by written release, prescription, estoppel, condemnation, and
abandonment. Neither a statement of intent to abandon nor non-use can extinguish an easement
absent affirmative conduct. An easement can only be terminated based on a theory of
abandonment if the owner of the easement acts in an affirmative way that clearly shows intent to
relinquish the easement right.
Easement in Gross: An easement is in gross if it was granted to benefit a particular person (as
opposed to the land). An express easement by grant arises when it is affirmatively created by the
parties in a writing that is in compliance with the Statute of Frauds. If a written easement is
granted but not recorded against the servient estate, then the easement is not enforceable against
a bona fide purchaser. Otherwise, the burden of an easement in gross is transferred automatically
with the transfer of the servient estate.
 The Area of law is
Real Property

With a focus on
Equitable conversion
The Rule is

Under the doctrine of equitable conversion, when one of the contracting parties dies prior to the
performance date of the contract, the seller's interest may be treated as personal property and the
buyer's interest may be treated as a real property interest for purposes of distributing in the
property pursuant to either' will. When the seller has devised his real property interests, the
proceeds from the sale of the property under contract are treated as personal property that passes
to the devisee of the seller's personal property.
The Area of law is
Real Property

With a focus on
Leasehold Estates
The Rule is

If the tenant takes possession and the landlord accepts rent, then a periodic tenancy or tenancy at
will is created because there has been partial performance. A tenancy at will may be terminated
by either party without notice. A periodic tenancy requires notice of termination before the
beginning of the intended last period of the periodic tenancy. If a Tenant took possession and
Landlord accepted the rent, either a periodic tenancy or a tenancy at will is created. It is a
periodic tenancy if payment is made over a significant amount of time, and the arrangement
creates expectations that justify notice of termination.
Periodic Tenancy: In a periodic tenancy, notice of termination must be given before the
beginning of the intended last period of the periodic tenancy. Thus, a periodic month-to-month
tenancy can be terminated by either party with a one-month notice of termination. Notice that is
given late is generally treated as effective to terminate the tenancy as of the end of the following
period.
Tenancy for Years: A tenancy for years is an estate measured by a fixed and ascertainable amount
of time. Termination of a tenancy for years may occur before the expiration of the term, such as
when the tenant surrenders the leasehold. A tenant surrenders a lease by transferring the lease
back to the landlord with the landlord accepting the return. Many courts require the surrender to
be in writing if the original lease was so required. If the landlord accepts surrender, the tenant is
not obligated for future rent.
The Area of law is
Real Property

With a focus on
Mortgages
The Rule is

The issue is whether future-advances mortgage has priority over lien in distributing the proceeds
from the foreclosure sale of property: When multiple interests must be paid out of the proceeds
of a foreclosure sale, generally, the earliest mortgage placed on the property has priority over the
other interests. Further, obligatory payments under a senior future-advances mortgage paid out
after a junior lender remits its loan amount and records its lien have priority over amounts loaned
by the junior lender.
The issue is whether the disbursement of the funds is obligatory or optional. : A mortgage is an
interest in real property that serves as security for an obligation. A future-advances mortgage is a
mortgage given by a borrower in exchange for the right to receive money from the lender in the
future. This type of mortgage is also known as a “line of credit.†It is often used for
home-equity, construction, business, and commercial loans, and it can provide for obligatory
advances or optional advances. Future advances made pursuant to a loan that makes advances
conditioned on satisfactory progress of the project for which the loan was made are optional, not
obligatory. If the disbursement of the funds is based on the bank's good-faith discretion, the bank
is not obligated to disburse the funds.
The issue is whether ___ future-advances mortgage has priority over ___ lien in distributing the
proceeds from the foreclosure sale of land: When multiple interests must be paid out of the
proceeds of a foreclosure sale, generally, the earliest mortgage placed on the property has priority
over the other interests. Further, obligatory payments under a senior future-advances mortgage
paid out after a junior lender remits its loan amount and records its lien have priority over
amounts loaned by the junior lender.
Priority between the mortgage and lien : The issue is whether the bank had notice of the
mechanic's lien before the bank disbursed the loan amounts. If there is more than one interest in
the property, the basic “first in time, first in right†rule is applied to determine the priority
of interests. However, this rule is subject to an exception for future-advances mortgages. If the
advances under a future-advances mortgage are optional, then a subsequent mortgage has
priority over amounts that are actually loaned after the future-advances mortgagee has notice of
the subsequent mortgage. The jurisdictions are split as to whether actual notice is required or
whether constructive notice is sufficient. In a majority of states, the mortgagee must have actual
notice of a subsequent interest in order for later loan disbursements to lose priority.
The Area of law is
Real Property

With a focus on
Notice
The Rule is

A bona fide purchaser is a person who paid value for an interest and did not have notice of the
prior-in-time interest. Notice can be actual, by inquiry, or constructive. Grantees are held to
have constructive notice of all prior conveyances that were properly recorded.
Constructive Notice: At issue is whether Purchaser is a protected under the state's recording
statute as a bona fide purchaser without notice of either prior interest. A notice statute tends to
protect subsequent purchasers against interest holders who could have but failed to record
documents describing their interests.
Wild Deed: The state here records under a grantor-grantee indexing system. Under that method,
each yearly index would be alphabetized by the last names of grantors and grantees. A potential
purchaser searching the title would first search for the grantor's name as a grantee in the grantee
index, then the name of the grantor's grantor as a grantee and so on. However, a recorded deed
that is not within the chain of title is a “wild deed.â€
Inquiry Notice: A grantee has inquiry notice if a reasonable investigation would have disclosed
the existence of prior claims. A grantee with inquiry notice cannot prevail against those prior
claims. A purchaser is held to know whatever a reasonable inspection of the property would have
disclosed. Taking a quitclaim deed does not in itself create inquiry notice of prior claims in most
states.
The Area of law is
Real Property

With a focus on
Statute of Frauds
The Rule is

The Statute of Frauds requires a lease of more than one year to be in writing. A lease subject to
the Statute of Frauds is voidable until the tenant takes possession, and the landlord accepts rent
from the tenant....
The Area of law is
Real Property

With a focus on
Zoning Ordinance
The Rule is

Nonconforming use : The issue is whether the expansion project is a substantial change to the
nature and character of the nonconforming use. When a zoning ordinance is enacted or modified,
there are often properties within a zone that do not conform to the requirements for that zone
(i.e., a nonconforming use). A zoning ordinance must generally make provision for property
with an existing nonconforming use. Unless the ordinance provides otherwise, the time for
testing whether the nonconforming use is protected by a grandfather provision is the date that the
zoning ordinance takes effect.
Grandfathered clause : Generally, a property owner whose nonconforming use has been
grandfathered is not entitled to subsequently increase the nonconforming use, such as by
enlarging a building that houses a nonconforming use or acquiring and developing adjacent
property in accord with the nonconforming use. However, the owner may be permitted to
increase the frequency of the nonconforming use to upgrade the means to accomplish the
nonconforming use, so long as the nature and character of the use does not constitute a
substantial change.
 The Area of law is
Secured Transactions

With a focus on
Scope of Article 9
The Rule is

Article 9 governs security interests and applies to any transaction that creates a security interest
in personal property, including goods, inventory, equipment, accounts, documents and
instruments. Article 9 applies broadly to transactions that create a security interest in personal
property or fixtures by contract. Article 9 also applies to other transactions such as agricultural
liens, consignments and sales of accounts or promissory notes. Secured transactions must be
consensual. Secured transactions involve personal property or fixtures (not real estate).
“Regardless of form†means that courts will look at the substance of the transaction, not
the labels the parties use.
Article 9 applies to certain sale of rights to payment this only includes certain rights to payment
(1) Chattel Paper (2) Promissory notes (3) Accounts (4) Payment Intangibles. The right to be
repaid money by a third party that the debtor then uses as collateral for a loan. An account
includes the rights to payment for property sold, leased, licensed, or for services rendered (such
as a company's accounts receivable)
- Here, the ___ sold its outstanding rights to be paid by ___ to which it had sold ____. Thus the
collateral is an account and the transaction is subject to Article 9.
Since UCC Art. 9 treats a sale of accounts as creating a security interest in the purchaser, the
seller (debtor) is deemed to retain rights in the accounts for attachment purposes until the
purchaser perfects its security interest.
Lease of Goods: The issue is whether the supplier's security interest in the ____ properly
attached. A true lease of goods does not create a security interest. But, a transaction that appears
to be in the form of a lease may actually be a secured transaction, creating a security interest.
The transaction may be categorized as a secured transaction if the lessee must pay consideration
to the lessor for the right to possess and use the goods for the term of the lease, the payment
obligation cannot be terminated by the lessee, and one of four conditions is met, lessee (1) has an
option to become the owner of the goods, (2) no additional consideration is paid or (3) nominal
additional consideration is paid, upon completion of the lease agreement.
 The Area of law is
Secured Transactions

With a focus on
Attachment (Does ___ have an
enforceable security against
debtor)
The Rule is

For a secured party to have a valid interest in the collateral it must first attach. Upon attachment,
the security interest becomes enforceable against the debtor's collateral. Attachment requires
(1) Value given by the secured party
(2) The debtor must have rights in the collateral (some property interest in the collateral).
(3) There is an authenticated security agreement that describes the collateral,
OR
(2) The secured party has possession or
(3) control of the collateral pursuant to an oral or unauthenticated security agreement.
Security Agreement Requirements: Usually an authenticated record (e.g., piece of paper signed
by the debtor) A security agreement requires
(1) A record (Need not be written on paper but must be stored in a record - something that others
can retrieve)
(2) The record must be signed by the debtor. (Need a signature or other symbol that shows the
intent of the debtor to be bound.)
(3) The security agreement must describe the collateral.
(4) The description must reasonably identify the collateral.
(No magic words must be used unless it is consumer goods and commercial tort claims, then the
collateral must be identified with more particularity. A super generic description, such as “all
of the debtor's assets†or “all of the debtor's personal property†does not reasonably
identify the collateral for attachment.
After acquired Interest : Under Article 9, for a security interest to be enforceable against a debtor,
the interest must attach to the collateral. Attachment requires:
(i) value to be given by the secured party;
(ii) the debtor has rights in the collateral; and
(iii) the debtor authenticated a security agreement that describes the collateral (or the secured
party has possession or control of the collateral pursuant to a security agreement).
A security interest attaches only to rights that the debtor has. A debtor may give a security
interest in future rights. This interest is created by including an “after-acquired property
clause†in the security agreement. security interest for after-acquired property attaches as soon
as the debtor obtains an interest in the property.
- Without an after-acquired property clause, the security interest only attaches to the collateral
that existed at the time that the security agreement was executed. Unless the security agreement
describes inventory or accounts, then there is a rebuttable presumption that the description
includes after-acquired inventory or accounts. In this circumstance the court might read an after-
acquired clause.
Future Advances: A future advances clause anticipates that the secured party may extend
additional credit to the debtor after the first loan. If that occurs, the security interest relates back
to the original transaction. This provides the benefits priority among creditors.
Accessions: Goods that are physically united with other goods so that the identity of the original
goods is not lost. If collateral becomes an accession, a security interest in that collateral is not
lost; the security interest continues in the accession.
Commingled goods: Goods that are physically united with other goods to the point that their
identity is lost in a product or mass. A security interest does not continue in the original goods
that have been commingled, but it will attach to the larger product or mass that results. The
security interests will not continue in the product, but creditors will have a proportional interest
in the product that resulted
If the secured party has possession or control of the collateral pursuant to a security agreement,
then a security agreement in the form of a record is not required; an oral agreement suffices.
 The Area of law is
Secured Transactions

With a focus on
Consumer to consumer (buddy
selling to buddy)
The Rule is

A buyer of collateral subject to a perfected security interest generally takes the collateral subject
to that interest. But a buyer of consumer goods, takes free of the perfected security interest unless
the secured party filed a financing statement that covered the goods before the buyer purchased
it. A consumer buyer is a person who
(i) buys consumer goods for value;
(ii) for his own personal, family or household use;
(iii) from a consumer seller; and
(iv) without knowledge of the security interest.
Often referred to as the “garage sale†rule.
Here, buyer gave value in the form of ____. The buyer purchased the ___ for his/her own
household use. The buyer was a consumer seller because he/she was not in the business of selling
_____. The purchaser had no knowledge of the ___ (person before seller) security interest. Thus,
the ___ is a consumer buyer of
 The Area of law is
Secured Transactions

With a focus on
Default
The Rule is

Upon default, a secured party may notify an account debtor (the person obligated on an account)
to make payment to the secured party. In addition, the secured party may exercise any rights of
the debtor with respect to the obligation of the account debtor. In a commercially reasonable
manner, the secured party may collect from the account debtor, and, if the account debtor does
not pay, the secured party may enforce the obligation of the account debtor.
Upon default, one of the alternatives generally available to a secured party once in possession of
collateral is to dispose of the collateral at a sale, which may be public or private, in order to
satisfy the obligor's outstanding obligation. In addition to conducting the sale in a commercially
reasonable manner, the secured party is generally required to send an authenticated notification
of disposition to, among others, the debtor. This notice must be given sufficiently far enough in
advance of the disposition (e.g., at least 10 days) to allow the notified party to act on the
notification. A secured party is not required to send a notice of disposition when the collateral is
perishable, threatens to decline speedily in value, or is of a type customarily sold on a recognized
market. A person entitled to notification may waive the right to notification. If a secured party
fails to comply with these requirements, then the debtor or other secured party may seek
damages for any loss caused by the secured party's failure to notify. There is also a rebuttable
presumption that the secured party is not entitled to collect a deficiency. The secured party can
rebut this presumption in whole or in part by showing that the deficiency would have existed
even had the secured party complied with Article 9.
 The Area of law is
Secured Transactions

With a focus on
Intangible Collateral
The Rule is

accounts, which are typically unsecured obligations owed to the person for goods supplied or
services rendered; include the right to payment for goods sold, property licensed, or services
rendered.
chattel paper, which references obligations that facilitate smaller secured transactions.
(1) monetary obligation (someone made a promise to repay the loan and security interest is in
something else), and
(2) A security interest or a lease
deposit accounts, such as bank savings or checking accounts; and
investment property, including stocks, bonds and similar types of property traded on a securities
exchange.
Instrument - if you see a check or promissory note on exam call it an instrument Examples:
promissory notes (I Owe you document, someone made a loan to someone), checks and drafts
governed by Article 3 of the UCC
 The Area of law is
Secured Transactions

With a focus on
Judicial Lien Creditor
The Rule is

A judicial lien creditor is a creditor who acquires a lien on the collateral by a judicial process,
rather than by operation of law. A judicial lien creditor takes the property subject to a perfected
security interest but generally has priority over an unperfected security interest. A security
interest is perfected upon attachment of that interest and compliance with one of the methods of
perfection.
 The Area of law is
Secured Transactions

With a focus on
Other Priority Rules
The Rule is

2 Perfected SI first to file or perfect When there are two or more perfected secured parties with
rights in the same collateral, the first to file a financing statement or perfect its security interest
has priority. If both security interests are perfected, then priority dates from the time of filing or
perfection, whichever occurs first.
PMSI in Inventory :While, generally, a PMSI has priority over other security interests in the
same goods, a PMSI in inventory has priority only if: (i) the PMSI is perfected by the time the
debtor receives possession of the collateral; and (ii) the purchase-money secured party sends an
authenticated notification of the PMSI to the holder of any conflicting security interest before the
debtor receives possession of the collateral.
PSI v Judicial Lien In a contest between a perfected security interest and a judicial lien, a judicial
lien creditor takes the collateral subject to an existing perfected security interest but generally has
priority over an unperfected security interest.
PMSI in goods exists when the secured party sells goods to the debtor, the debtor then has an
obligation to pay the secured party for all or part of the purchase price. A PMSI in consumer
goods is automatically perfected upon attachment. Consumer goods are goods that are acquired
primarily for personal, family, or household purposes.
- Here seller has a PMSI in the ____ because the buyer purchased ___ from the seller on credit
and granted a security interest in ___ to the seller. The ___ is a consumer good because the buyer
purchased it for use in her home. Thus, the seller's PMSI is automatically perfected without filing
a financing statement.
PMSI in GOODS : The issue is identifying which security interest in ______or has priority: the
___ or the ___. Perfection of a security interest is necessary for the secured party to have a
superior right in the collateral. A security interest is perfected when the collateral attaches and the
secured party complies with one of the methods of perfection. Those methods include filing a
financing statement, having possession or control of the collateral, or it can be automatically
perfected. When there are two or more perfected secured parties with rights in the same
collateral, the first to file or perfect its security interest has priority. If both security interests are
perfected, then priority dates from the time of filing or perfection, whichever occurs first.
- A PMSI in goods other than inventory or livestock prevails over all other security interests in
the collateral, even if they were previously perfected, if the secured party perfects before or
within 20 days after the debtor receives possession of the collateral
 The Area of law is
Secured Transactions

With a focus on
Perfection (Rights superior to
other debtors)
The Rule is

Generally, for the secured party to have superior rights over third parties that have security
interests in the same collateral the party must perfect its security interest. The secured party must
have attached and perfected its security interest and complied with one of the methods for
perfection. A secured party can perfect a security interest by
(i) filing a financing statement;
(ii) possessing the collateral;
(iii) controlling the collateral; or
(iv) perfecting automatically.
Filing. The filing of a “financing statement†or the security agreement with the state is the
primary method of perfection. The filing MUST be filed by an authorized party (authorization is
presumed by the debtor's authentication of the security agreement). Minor errors will not
invalidate the financing statement unless the error makes it seriously misleading. The filing must
contain:
- The debtor's name;
-- if the debtor is a registered organization, the financing statement must provide the official
registered - name of the organization.
- The secured party's name;
- An adequate description of the collateral; AND
- The filing fee.
Taking Possession : A secured party may perfect a security interest in negotiable documents,
goods, instruments, or money by taking mere possession of such items.
Automatic Perfection PMSI : The following security interests are perfected automatically when
they attach:
- A PMSI in consumer goods; AND
- An assignment of accounts which does NOT by itself or in conjunction with other assignments
to the same assignee transfer a significant part of the assignor's outstanding accounts.
Generally perfection is done by filing a financing statement in the central filing office of the
appropriate state. Perfection by filing a financing statement applies to perfect security interests in
all collateral except it does not apply to deposit accounts, money, letters of credit, and collateral
subject to other perfection methods (like state certificate of title laws). The financing statement
must contain the debtor's name, the name of the secured party, and the collateral covered by the
financing statement. Typically, a security interest attaches and is then perfected. But, if the
necessary steps for perfection are taken prior to attachment, then the security interest is perfected
upon attachment.
Errors in the Financing Statement : General rule is that minor errors in a financing statement do
not affect perfection unless they make the financing statement seriously misleading. Errors in the
debtor's name are almost always seriously misleading unless the search for the correct name of
the debtor would uncover the financing statement with the error, the error is not seriously
misleading. If the mistake is seriously misleading then, the security interest is not perfected.
Under the same office rule, a perfected security interest in proceeds may continue indefinitely
when: (i) the filed financing statement covers the original collateral,
(ii) the proceeds are collateral in which a security interest may be perfected by filing in the same
office as the financing statement, and
(iii) the proceeds are not acquired with cash proceeds.
Financing statements last for 5 years unless filing a continuation statement within 6 months
before the financing statement lapses.
Perfection by Possession: Security interests in tangible collateral may perfected if the secured
party takes possession of the collateral. Money, Goods, Instruments, Negotiable documents,
Tangible
Chattel Paper Possession is the only way to perfect a security interest in $$$$ As soon as the
secured party has possession, the interest is perfected. The interest remains perfected as long as
the secured party retains possession.
Control over Deposit Accounts : Control can be obtained over a deposit account in one of three
ways: (1) The secured party is the bank that has the deposit account (lender and the bank are the
same party) the bank automatically has control
(2) The secured party, the bank and the debtor, all three get together and agree in an authenticated
record that the lender (secured party) has control over the deposit account (deposit account
control agreement)
(3) The secured party can become the bank's customer with respect to the deposit account.
PMSI (Purchase Money Security Interest) in consumer goods : PMSI gives lenders a special
security interest in goods that have been purchased with funds borrowed from them or purchased
on credit from them. PMSI in consumer goods is automatically perfected upon attachment. A
secured party does not need to file a financing statement or have possession to have a perfected
PMSI in consumer goods. A PMSI is a security interest in goods has priority over other security
interests in the same goods. A PMSI in other types of goods (e.g., inventory, equipment) or in
automobiles is not automatically perfected.
Cash proceeds:A security interest in collateral is automatically attached to identifiable proceeds.
Proceeds are whatever is acquired when collateral is sold, exchanged or other disposition of
collateral. If the proceeds are identifiable cash proceeds (including checks) and the SI in the
original collateral is perfected, the perfected SI in the proceeds continues indefinitely.
Here ___ had a perfected security interest in ___. The buyer got $___ from ___ for ___. Thus the
check/cash is identifiable cash proceeds, and the __ has a perfected security interest in the check.
 The Area of law is
Secured Transactions

With a focus on
Tangible Collateral
The Rule is

consumer goods, goods used or bought for use primarily for personal use, such as automobiles or
jewelry;
equipment, meaning goods used by a business that aren't normally sold by the business, such as
chairs, desks, computers, restaurant kitchen equipment and manufacturing machines; goods or
machinery used in the business.
“Inventory†which means goods held for sale or lease, by a business, but also raw
materials, works in process, or materials used or consumed in a business. such as the hammers
and drills on the shelves of a hardware store;
farm products, which are goods unique to farming operations and include crops, livestock, feed,
agriculture products and fertilizer;
fixtures, which means property that is affixed to buildings so that they are sometimes considered
real property, such as the built-in brick oven in a pizza shop
 The Area of law is
Secured Transactions

With a focus on
buyer in the ordinary course of
business
The Rule is

Generally, a buyer of a collateral subject to a perfected security interest takes the collateral
subject to that security interest. But, a buyer in the ordinary course of business takes collateral
free of the security interest created by the buyer's seller, even if the security interest is perfected
and the buyer knower of its existence. A buyer is BICOB if he:
(i) buys goods;
(ii) in the ordinary course of business;
(iii) from a merchant who is in the business of selling goods of that kind;
(iv) in good faith; and
(v) without knowledge that the sale violates the rights of another in the same goods.
The buyer must give new value either by paying cash or buying on credit.
Here the buyer bought the ___ in the ordinary course of the ___ business. The buyer purchased
the ____ on credit/cash in good faith and without knowledge of the retailers interest. Thus the
buyer is a BICOB and take the ___ free of the ___ security interest.
If a buyer purchases goods under a BICOB exception free of the security interest in the goods
created by the buyers seller, he/she can then sell the goods to a second buyer who will also get
the goods free of that security interest. The second buyer doesn't have to be a BICOB. Thus, the
second buyer takes the collateral free of the finance company's security interest.
 The Area of law is
Secured Transactions (UCC
Article 9)

With a focus on
Attachment and Perfection
The Rule is

Attachment requires a security agreement, value given, and the debtor's rights in the collateral.
Perfection generally involves filing a financing statement or taking possession of the collateral.
 The Area of law is
Secured Transactions (UCC
Article 9)

With a focus on
Priority Rules
The Rule is

Priority of claims among secured creditors is generally determined by the order of perfection.
Purchase money security interests (PMSIs) in goods other than inventory have super-priority if
perfected within 20 days of the debtor receiving possession.
 The Area of law is
Torts

With a focus on
Negligent Infliction of
Emotional Distress
The Rule is

A plaintiff can recover for negligent infliction of emotional distress (NIED) from a defendant
whose tortious conduct placed the plaintiff in harm's way if the plaintiff can demonstrate that she
was within the zone of danger and the threat of physical impact caused emotional distress.
Generally, the distress must exhibit some physical symptoms. In virtually all jurisdictions,
emotional distress must result from sensory and contemporaneous observance of the accident
itself, not the receipt of news relating to the accident. To recover as a bystander, the plaintiff
must be closely related to a person injured by the defendant, be present at the scene of the injury,
and personally observe or perceive the injury
The Area of law is
Torts

With a focus on
Strict Liability
The Rule is

Abnormally dangerous activity subject to strict liability : Defendants engaged in abnormally

dangerous activities may be held strictly liable for damages caused by that activity, even in the
absence of negligence. Activities are considered abnormally dangerous if they create a
foreseeable and highly significant risk of physical harm even in the exercise of reasonable care,
and the activity is not commonly engaged in. The most commonly known abnormally dangerous
activity is blasting, or the use of explosives. Fireworks displays are much like blasting in that
they both involve the use of explosives, and any time a person ignites a shell or rocket with the
intention that it explodes in the presence of other people, that person creates a high risk of
serious personal injury. Further, no matter how much care is exercised when igniting the
fireworks, there is no way to completely eliminate this risk.
Defective Product: Under strict products liability, the manufacturer, retailer, or other distributor
of a defective product may be liable for any harm caused by the product. The plaintiff must
prove
(i) the product was defective (in manufacture, design, or failure to warn),
(ii) the defect existed at the time the product left the defendant's control, and
(iii) the defect caused the plaintiff's injuries when the product was used in an intended or
reasonably foreseeable way.
A manufacturing defect is a deviation from what the manufacturer intended the product to be that
causes harm to the plaintiff. The test is whether the product conforms to the defendant's own
specifications.
Implied warranty of merchantability: warrants that the product being sold is generally acceptable
and reasonably fit for the ordinary purposes for which it is being sold. Any product that fails to
live up to this warranty constitutes a breach, regardless of any fault by the defendant.
Causation: Regardless of the theory of liability, the burden is on the plaintiff to prove that the
specific defendant caused the plaintiff's injuries. There are several theories of liability under
which a plaintiff can recover when there are multiple tortfeasors or multiple possible causes for
the plaintiff's harm, but in this case the man will not be able to recover under any of them.
- Under the market share liability doctrine, if the plaintiff's injuries are caused by a fungible
product and it is impossible to identify which defendant placed the harmful product into the
market, the jury can apportion liability based on each defendant's share of the market. In this
case, the man will not succeed under this theory because the teas are not truly identical. The
investigation established that the levels of contamination and toxicity varied substantially
between the packages and some packages had no contaminants at all. Thus, the man cannot rely
on this theory of liability.
- Under the alternative liability doctrine, if the plaintiff's harm was caused by
(i) one of a small number of defendants,
(ii) each of whose conduct was tortious, and
(iii) all of whom are present before the court, then the court may shift the burden of proof to each
individual defendant to prove that his conduct was not the cause in fact of the plaintiff's harm.
Here, the man cannot rely on this theory because none of the defendants were negligent in failing
to discover the contamination.
- Under the concert of action doctrine, if two or more tortfeasors were acting pursuant to a
common plan or design and the acts of one or more of them tortiously caused the plaintiff's harm,
then all the defendants will be held jointly and severally liable. Here, there is no evidence that
the companies were acting together or tortuously. Thus, the man cannot recover under this
theory
To be subject to strict liability, the defendant must be in the business of selling or otherwise
distributing the product.
Strict Liability: strict products liability, the seller or distributor of a defective product may be
liable for any harm to persons or property caused by such product. A product is defective when,
at the time of the sale or distribution, it contains a manufacturing defect, a design defect, or
inadequate instructions or warnings
Manufacturing Defect: A manufacturing defect is a physical deviation from what the
manufacturer intended the product to be that causes harm to the plaintiff. The test for the
existence of such a defect is whether the product conforms to the defendant's own specifications.
To prevail on a strict liability claim based on a manufacturing defect, the plaintiff must show that
(i) the product was defectively manufactured,
(ii) the defect existed when the product left the defendant's control,
(iii) the defect caused the plaintiff's injury, and
(iv) the product was used in a reasonably foreseeable way
Manufacturing Defect: To prevail on a strict liability claim based on a manufacturing defect, the
plaintiff must show that
(i) the product was defectively manufactured,
(ii) the defect existed when the product left the defendant's control,
(iii) the defect caused the plaintiff's injury, and
(iv) the product was used in a reasonably foreseeable way.
The Area of law is
Torts

With a focus on
Causation
The Rule is

A factual cause exists then proximate cause also exists, unless there are intervening acts.
An intervening cause is a factual cause of the plaintiff's harm that contributes to his harm after
the defendant's tortious act has been completed. Original tortfeasors remain liable for an
intervening cause unless the result was unforeseeable or the harm was unforeseeable. A
superseding cause is any intervening cause that breaks the chain of proximate causation between
the defendant's tortious act and the plaintiff's harm, thereby preventing the original defendant
from being liable to the plaintiff. However, when both the intervening cause and the harm are
unforeseeable, the intervening cause becomes a superseding cause, and the defendant's liability is
cut off by that superseding cause.
 The Area of law is
Torts

With a focus on
Comparative Negligence
The Rule is

Contributory negligence: occurs when a plaintiff fails to exercise reasonable care for his own
safety and so contributes to his own injury. In a few states, contributory negligence is a complete
bar to recovery. Most states, however, have opted for comparative negligence. In jurisdictions
that have adopted the doctrine of pure comparative negligence, a plaintiff's contributory
negligence is not a complete bar to recovery. The plaintiff's full damages are calculated by the
trier of fact and then reduced by the proportion that her fault bears to the total harm. In modified
or “partial†comparative negligence jurisdictions, recovery is barred if the plaintiff is more
at fault than the defendant. If the plaintiff is less at fault than the defendant, the recovery is
reduced by the plaintiff's percentage of fault.
The Area of law is
Torts

With a focus on
Damages
The Rule is

In order to be liable for the D's damages resulting from __, the court must find that the ___ was
proximately caused by the woman's negligence. An actor is liable for any reasonably foreseeable
harm suffered as a consequence of her negligence. Subsequent medical malpractice or other
negligent acts are generally considered foreseeable intervening causes and will not break the
chain of the defendant's liability.
Res Ipsa : Under the doctrine of res ipsa loquitur, the trier of fact may infer the existence of the
defendant's negligent conduct in the absence of direct evidence of negligence. The plaintiff
must prove that:
(1) the accident is of a kind which ordinarily does not occur in the absence of negligence;
(2) the harm was caused by an agent or instrumentality within the exclusive control of the
defendant; and
(3) the harm was not due to any action on the part of the plaintiff.
Joint and Several Liability : Under the doctrine of joint and several liability, each of two or more
defendants who is found liable for a single and indivisible harm is subject to liability to the
plaintiff for the entire harm. The plaintiff can choose to collect the entire judgment from one
defendant or portions of the judgment from various defendants, as long as the entire recovery
does not exceed the full amount of the judgment. Under joint and several liability, the P can
collect the full amount of the judgment from either defendant or portion the damages between
them.
The Area of law is
Torts

With a focus on
Disclaimer
The Rule is

Under disclaimer statutes, a disclaiming party is treated as if she had predeceased the decedent.
When a disclaiming party is deemed to have predeceased the testator, the bequest passes either to
the disclaimant's issue or to the residuary legatee. The typical anti-lapse statute provides for
alternate disposition of lapsed bequests. Under the majority of state statutes, if the gift was made
to a relation of the testator within a specific statutory degree, and the relation predeceased the
testator but left issue, the issue succeeds to the gift, unless the will expressly states to the
contrary.
The Area of law is
Torts

With a focus on
Duties Owed
The Rule is

Duty to Aid : A person who voluntarily aids another has a duty to act with reasonable ordinary
care. However, there is generally no duty to come to the aid of another.
A tenant owes a licensee the duty to warn of concealed dangers and is required to exercise
reasonable care in conducting activities on her land.
When a statute or administrative regulation imposes a specific duty for the protection of others,
and a defendant breaches that duty, the defendant is liable to anyone in the class of people
intended to be protected by the statute for harm of the type the statute was intended to protect
against. Generally, such a violation of a regulation or ordinance establishes either negligence as
a matter of law or a rebuttable presumption of negligence.
In general, a duty of care is owed to all foreseeable persons who may foreseeably be injured by
the defendant's failure to act as a reasonable person of ordinary prudence under the
circumstances.
The Area of law is
Torts

With a focus on
Intentional Torts
The Rule is

Battery: a plaintiff must show that the defendant caused a harmful or offensive contact with the
plaintiff's person with the intent to cause such contact or the apprehension of such contact. A
defendant's contact is intentional if he acts with the desire to bring about the contact or engages
in an action knowing that contact is substantially certain to occur. In most jurisdictions, the
defendant need only intend to cause contact, not that the contact be harmful or offensive (often
called the single-intent rule).
False imprisonment: requires that a person acts with intent to confine or restrain another person
to a bounded area and those actions directly or indirectly result in such confinement. The
plaintiff must be aware of the confinement or must suffer actual harm. The confinement may be
physical, may be accomplished through use of threats, by failure to provide a means of escape, or
by invalid use of legal authority. A plaintiff is not imprisoned if he submitted willingly to
confinement. An area is not bounded if there is reasonable means of safe escape.
The Area of law is
Torts

With a focus on
Liability
The Rule is

Vicarious liability: is a form of strict liability in which one person is liable for the negligent
actions of another. An employer is liable for the tortious conduct of an employee that is within
the scope of employment.
Eggshell Plaintiff Rule: Under the “eggshell skull†rule, a defendant is liable for the full
extent of the plaintiff's injuries due to the plaintiff's preexisting physical or mental condition or
vulnerability, even if the extent is unusual or unforeseeable.
Liability for Non-delegable Duty: Those who engage an independent contractor (one hired to
accomplish a task or result but not subject to a right of control by the employer) are generally not
vicariously liable for the torts of the independent contractor. The person who hires an
independent contractor remains vicariously liable for certain conduct, including inherently
dangerous activities and non-delegable duties (i.e., activities that are inherently risky or that
affect the public at large).
Rescuer to Aid another: Liability typically extends only to foreseeable plaintiffs and hazards. A
person who comes to the aid of another is a foreseeable plaintiff. If the defendant negligently
puts either the rescued party or the rescuer in danger, then he is liable for the rescuer's injuries.
An employer is liable for an employee's torts if the employer has the right to control the
employee's acts and the tortious conduct is committed within the scope of employment.
The Area of law is
Torts

With a focus on
Negligence
The Rule is

Negligence: To prove negligence, the plaintiff must establish that the defendant owed a duty, that
it breached that duty, that its actions were both the actual and proximate cause of injury, and that
damages resulted.
Negligence: In a negligence action, a plaintiff must show that the defendant owed a duty to the
plaintiff, that the defendant breached that duty, that the defendant caused the plaintiff's injuries,
and that damages exist. Generally, the standard of care imposed on a defendant is that of a
reasonably prudent person under similar circumstances. A person is required to exercise the care
that a reasonable person under the same circumstances would recognize as necessary to avoid or
prevent an unreasonable risk of harm to another person. In determining whether a specific
precaution was warranted, a jury must weigh the probability and gravity of the injury against the
burden of taking such precautions.
The Area of law is
Torts

With a focus on
Negligence Per Se
The Rule is

Although the unexcused violation of a statutory standard of care is negligence per se, the
converse is not true: an actor who has complied with all statutory standards may still be found
negligent if his conduct is not reasonable under the circumstances. In the absence of any special
rule to the contrary, the actions of the fireworks company would be subject to a typical
negligence analysis. A prima facie case of negligence consists of four elements: duty, breach,
causation, and damages.
Violation of statute: The issue is whether the woman can be found negligent despite her
compliance with the posted speed limit. Negligence is conduct, without wrongful intent, that
falls below the minimum degree of ordinary care imposed by law to protect others against
unreasonable risk of harm. A prima facie case of negligence consists of four elements:
(1) Duty - the obligation to protect another against unreasonable risk of injury;
(2) Breach of Duty - the failure to meet that obligation;
(3) Causation - a close causal connection between the action and the injury; and
(4) Damages - the loss suffered.
All four elements must be established in order to maintain a claim for negligence. In general, a
duty of care is owed to all foreseeable persons who may foreseeably be injured by the
defendant's failure to act as a reasonable person of ordinary prudence under the circumstances. A
breach of duty occurs when the defendant departs from the required standard of care, such as
failure to act as a reasonable person, an unexcused violation of a statute, or, if there is no direct
evidence, through res ipsa loquitur. However, compliance with a statutory standard does not
insulate an act against liability for negligence.
The Area of law is
Torts

With a focus on
Proximate Cause
The Rule is

The majority rule for proximate cause requires that the plaintiff suffer a foreseeable harm that is
not too remote and is within the risk created by the defendant's conduct. An intervening cause is
a factual cause of the plaintiff's harm that contributes to her harm after the defendant's tortious
act is completed. A superseding cause is any intervening cause that breaks the chain of
proximate causation between the defendant's tortious act and the plaintiff's harm, thereby
preventing the original defendant from being liable to the plaintiff. Most courts hold that an
unforeseeable intervening cause is a superseding cause that therefore breaks the chain of
causation between the defendant and the plaintiff. Examples of unforeseeable intervening causes
include extraordinary acts of nature, criminal acts of third parties, and intentional torts of third
parties.
The Area of law is
Torts

With a focus on
Standard of Care
The Rule is

In determining whether conduct lacks reasonable care, courts consider

(i) the foreseeable likelihood that the person's conduct will result in harm,
(ii) the foreseeable severity of any harm that may result, and
(iii) the burden of precautions to eliminate or reduce the risk of harm.
Minor Children Standard of care: The standard of care imposed upon a child is that of a
reasonable child of similar age, intelligence, education, and experience. The standard applicable
to minors is more subjective in nature because children are unable to appreciate the same risks as
adults.
Children Standard of care: Generally the standard of care imposed in most cases is that of a
reasonably prudent person under the circumstances, but the standard of care regarding children is
that of a reasonable child of similar age, intelligence, and experience. However, a child engaged
in a high-risk activity that is normally undertaken by adults is held to the same standard as an
adult.
At issue is whether the physician is liable for breaching his duty to act with reasonable care. A
prima facie case of negligence requires proof of a duty, breach of that duty, causation, and
damages. In general, a duty of care is owed to all foreseeable persons who may foreseeably be
injured by the defendant's failure to act as a reasonable person of ordinary prudence under the
circumstances. A physician is held to a national standard and is expected to exhibit the same
skill, knowledge, and care as an ordinary practitioner.
Custom is evidence of standard of care but not conclusive: a person is required to exercise the
care that a reasonable person under the same circumstances would recognize as necessary to
avoid or prevent an unreasonable risk of harm to another person. In determining whether a
specific precaution was warranted, a jury must weigh the probability and gravity of the injury
against the burden of taking such precautions. Evidence of custom in an industry may be offered
to establish the standard of care, but such evidence is not conclusive.
Landowner's duty of care: In most jurisdictions, the standard of care owed to land entrants
depends upon whether he is a licensee or a trespasser. A licensee enters the land of another with
the permission of the land possessor (LP) and includes those whose presence is tolerated by the
LP. The LP has a duty to either correct or warn licensees of concealed dangers that are either
known to the LP or that should be obvious. A trespasser is someone who enters or remains upon
the land of another without consent or privilege to do so. Traditionally, an LP is obligated only to
refrain from willful, wanton, reckless, or intentional misconduct toward trespassers.
Attractive Nuisance : Under the “attractive nuisance†doctrine, a LP may be liable for
injuries to children trespassing on the land if
(i) an artificial condition exists where the LP knows or has reason to know children are likely to
trespass;
(ii) the LP knows or has reason to know the condition poses an unreasonable risk of death or
serious bodily injury;
(iii) the children, because of their youth, do not discover or cannot appreciate the danger
presented by the condition;
(iv) the condition's utility to the LP and the burden of eliminating the danger are slight compared
to the risk to children; and
(v) the LP fails to exercise reasonable care to protect children.
The Area of law is
Trusts

With a focus on
Wills
The Rule is

The probate estate includes all assets that pass by will or intestacy upon a decedent's death. A
trust is generally considered a will substitute because the distribution of property placed in trust
during a decedent's lifetime pass outside of probate according to the terms of the trust.
 The Area of law is
Trusts

With a focus on
Allocating Income and
Expenses
The Rule is

Life tenant/Remainder beneficiaries: Gets income from the trust (income that the trust creates)
such as cash divided, interest, rent income, net business income. And they pay expenses for
interest on loans, taxes, minor repairs.
Remainder Beneficiaries : entitled to the trust principal when the trust terminates. Such as
dividends from stocks, stock split, proceeds from selling trust assets/property. Pay expenses for
principal of loans, major repairs, improvements.

All assets received by a trustee must be allocated to either income or principal. The allocation
must be balanced to treat present and future trust beneficiaries fairly, unless a different treatment
is authorized by the trust instrument. The traditional approach assumed that any money
generated by trust property was income and that any money generated in connection with a
conveyance of trust property was principal. The traditional approach serves as the starting point
for the modern approach. Under the UPAIA (modern approach), a trustee is empowered to re-
characterize items and reallocate investment returns as he deems necessary to fulfill the trust
purposes, as long as his allocations are reasonable and are in keeping with the trust instrument.
A distribution of stock is treated as a distribution of principal under the UPAIA.
The Area of law is
Trusts

With a focus on
Class Gifts
The Rule is

A gift to a group of individuals with an automatic right of survivorship is a class gift. A class
remains open and may admit new members until at least one class member is entitled to obtain
possession of the gift. A vested remainder accelerates into possession as soon as the preceding
estate ends for any reason, such as the disclaiming of the estate by its holder.
However, under the UPC, if a class gift is limited in favor of a class of children, only those
children alive at the time of distribution are entitled to possession of the property. If a child who
survives the settlor but then predeceases the time of distribution has surviving issue, that issue
would have a right to the parent's share of the gift.
A class remains open and may admit new members until (i) at least one class member is entitled
to obtain possession of the gift, or (ii) the preceding interest terminates (such as when the holder
of the present life interest dies).
The Area of law is
Trusts

With a focus on
Creating a Trust
The Rule is

A valid trust requires

(1) Property
(2) Beneficiaries
(3) Trustee
(4) Intent
(5) Creation
(6) Valid Legal Purpose.
- Ascertainable beneficiaries :must be able to determine who the beneficiaries are as long as they
can be identified. An indefinite class is valid such as my friends or unborn children. It is possible
to create a trust for the benefit of a child who is not born yet. It is also possible to have a class
gift. Charitable Trust is also ok.
- Intent: precatory words are not enough.
- Invalid Legal Purpose : If the purpose of the trust is against public policy the court might struck
the invalid provision. A trust provision that restrains or seeks to prohibit the beneficiary of a trust
from getting married might actually violate public policy.
- Property : Intervivos Trust with a pour over will is allowed, when a grantor created a intervivos
trust and upon his death that trust will actually pour over all the assets from the will into the trust
and the trust will govern is legal. Pour over provisions are legal.
A private express trust clearly states the intention of the settlor to transfer property to a trustee
for the benefit of one or more ascertainable beneficiaries. Traditionally, and in a minority of
jurisdictions, a trust is presumed to be irrevocable unless the settlor expressly reserves the right
to modify or terminate the trust. Under the UTC and majority rule, however, a trust is presumed
revocable unless it expressly states otherwise. If the trust is revocable, the settlor's power to
revoke naturally includes the power to amend or modify the trust. A settlor may amend or
revoke a revocable trust by substantial compliance with a method provided in the terms of the
trust.
 The Area of law is
Trusts

With a focus on
General Considerations
The Rule is

Revocable versus Irrevocable Trusts: Under the Traditional rule a trust was presumed to be
irrevocable unless stated otherwise. Today majority jurisdictions follow the UTC approach, and a
trust is presumed revocable by default unless the document says otherwise.
Parties to a trust: Grantor/Settlor the creator of the trust. Trustee holds the legal interest or title to
trust property. Beneficiaries : receive the benefit of the trust.
Mandatory vs. Discretionary: A mandatory trust requires the trustee to distribute all trust income.
In a discretionary trust, the trustee is given the power to distribute income at his discretion. The
trustee does not abuse his discretion unless he acts dishonestly or in a way not contemplated by
the trust creator.
The Area of law is
Trusts

With a focus on
Holders Abilities
The Rule is

A power of appointment enables the holder to direct a trustee to distribute some or all of the trust
property without regard to the provisions of the trust. A special power of appointment allows the
donor to specify certain individuals as the objects of the power, to the exclusion of others.
When an appointment exceeds the grant of power, the property or interest that was invalidly
appointed passes to the taker in default - the party who would have received the interest had
there been no appointment.
The Area of law is
Trusts

With a focus on
Lapse
The Rule is

Unless the governing instrument provides otherwise, the common law general rule is that the gift
is expressly limited to the transferor's surviving children, so that the surviving issue of a
deceased child does not take...
 The Area of law is
Trusts

With a focus on
Modification & Termination
The Rule is

Settlor Modification of a Trust: When a settlor has a revocable trust, the settlor has the power to
modify or amend the trust. If the trust is irrevocable trust settlor cannot amend or terminate that
trust. If there is an irrevocable trust in place, modification or termination of an irrevocable trust
can only occur with the consent of all the beneficiaries (present and future) and if the amendment
would not go against the primary purpose of the trust. If the settlor creates a living trust that is
irrevocable, the settlor cannot change or terminate the trust unless all the beneficiaries agree and
the settlor can show that the change, modification, or termination is keeping within the purpose
of the trust.
- Under the Traditional rule a trust is presumed to be irrevocable unless it expressly states
otherwise. But under the UTC a trust is presumed revocable unless it expressly states that it is
irrevocable. An Amendment to a trust does not have to be executed and comply with the
formalities of a will. There are no witness or signature requirements.
Beneficiaries Modification of a Trust: A trust can terminate automatically when the trust purpose
has been accomplished. Beneficiaries can modify or terminate a trust when the settlor is
deceased and has no more interest and all present and future beneficiaries consent to modify or
terminate the trust. However, Under the Claflin doctrine, a trustee can block a premature trust
termination a trustee can prevent the beneficiaries from terminating the trust when a material
purpose of the trust has not been completed yet, therefore it should not be terminated. If a court
finds that there's still some important purpose left for the trust it's not going to actually terminate
or modify that trust even if they all agree. Most courts allow the trustee to block the termination
if it can be shown that termination would violate the settlor's intent.
A court: may modify a trust under the doctrine of equitable deviation if events that were
unanticipated by the settlor have occurred and the changes would further the purposes of the
trust. To the extent possible, the modification must be made in accordance with the settlor's
probable intention, and the court need not seek beneficiary consent to make the modification.
Removal of Trustee: Beneficiaries can remove a trustee if the beneficiaries believe that the
trustee is not fulfilling its duties or violated a duty to them. If the purpose of the trust is
frustrated by continuing to have the trustee be the trustee or if they violated duty. Even if
circumstances have not changed in an unanticipated manner, a court may modify the terms of a
trust that relate to the management of trust property if continuing the trust on its existing terms
would be impracticable, wasteful, or would impair the trust's administration.
The Area of law is
Trusts

With a focus on
Trust Basics
The Rule is

A trust is a fiduciary relationship wherein the trustee is called upon to manage, protect, and
invest certain property and any income generated therefrom for the benefit of one or more named
beneficiaries. The trustee holds the legal interest or title to the trust property. Should the trust be
terminated, title would merge and would vest in the beneficiaries.
The Area of law is
Trusts

With a focus on
Trustee Duties
The Rule is

A trustee has a duty to administer trust in good faith, in accordance with its terms and purposes,
and in the interest of the beneficiaries.
Duty of loyalty: trustee has a duty to act in good faith and must act reasonably in executing their
duties. A trustee has a duty to not self-deal, a trustee cannot sell assets from the trust to himself,
in this case there is an irrebuttable presumption that they've breached the duty of loyalty. But, if
it is authorized either by the trust itself or by all of the beneficiaries then there is no self-dealing
as long as it is still reasonable. If there is self-dealing the beneficiaries can set aside the
transaction, or they can take the benefit of it. If there's profit from the self-dealing beneficiaries
can recover any money from it.
Conflict of Interest: when a trustee takes trust assets and invests it into a corporation that they
actually own there is a conflict of interest, the trustee is taking trust assets and investing it into
property that they own that's going to be viewed as a conflict of interest and there is a
presumption that the trustee breached the duty of loyalty.
Prudent Investor: Under CL the trustee must act as a reasonable prudent investor who is
investing his own money. Good investments were govt bonds, federal insured certificates of
deposits, public stock and co-stock. Under the UPIA a trustee must act as a prudent investor in
context of the entire trust portfolio, if they have specialized skilled in investing, they should
utilize those skills. Trustee must invest reasonably with reasonable care caution and skill when
investing in assets.
Diversify: They also have a duty to diversify a trustee must invest in more than just one specific
type of stock. A trustee must make property productive and purse all opportunities from it to
generate money and income, such as renting trust property.
Impartiality: A trustee also has the duty to act impartially cannot treat beneficiaries unfairly over
one another and allow their personal biases to affect their duties. Trustee must be impartial to
income beneficiaries and remainder beneficiaries, to treat them equally, can't favor the people
getting the income of a trust if it's going to hurt the people who ultimately take the rest of the
trust. As a trustee you're bound to treat all beneficiaries equal whether remainder or whether they
are income beneficiaries.
The Area of law is
Trusts

With a focus on
Types of Trusts
The Rule is

Testamentary trust: A testamentary trust is created in writing in a will or in a document

incorporated by reference into a will. The will containing the trust must meet the attested or
holographic will requirements.
Charitable Trust: For a trust to be considered charitable, it must
(1) have a stated charitable purpose and
(2) it must exist for the benefit of the community at large or for a class of persons the
membership in which varies.
Purposes considered to be charitable include the relief of poverty, the advancement of education
or religion, and other purposes benefiting the community at large or a particular segment of the
community. It must actually be for indefinite group of beneficiaries it cannot be for specific.
- If the original trust purpose cannot be satisfied or met under the cy pres doctrine a court may
modify a charitable trust to seek an alternative charitable purpose if the original one becomes
illegal, impracticable, or impossible to perform. The settlor's intent controls. To determine
whether it should modify the trust, a court will analyze whether the trust has a specific intent to
help one charity or a general intent to help charity.
-- If there is specific intent, the court may not modify the trust and the trust will be terminated
and become a resulting trust (an implied trust that is held for the settlor or his/her heirs). If for a
specific purpose it will not be modified by the court.
-- If there is general intent, the court will substitute a similar charity. The court may re-write a
provision and find a charitable purpose. The modern approach is to presume a general intent and
apply the cy pres doctrine even if the settlor's intent is not known.
Resulting Trust : When a trust fails in some way or when there is an incomplete disposition of
trust property, a court may create a resulting trust requiring the holder of the property to return it
to the settlor or to the settlor's estate. When a testamentary trust fails, the residuary legatee
succeeds to the property interest. The purpose of a resulting trust is to achieve the settlor's likely
intent in attempting to create the trust.
Support Trust : A beneficiary entitled to distribution is entitled to the right of alienation and can
alienate their interest in the trust freely when the trust allows so. The creditors can only reach
that right when the Trustee makes a distribution, but in a support trust where the trustee is
directed to pay income or principal as necessary to support the trust beneficiary creditors cannot
reach the assets of a support trust unless the creditors are providing the beneficiaries with
necessaries then they can be paid directly by the trustee.
Discretionary Trust : A discretionary trust is where the trustee is given complete discretion
regarding whether or not to apply payments of income or principal to the beneficiary and make a
distribution. If the trustee exercises his discretion to pay, then the beneficiary's creditors are
entitled to reach the trusts assets. If the direction to pay is not exercised then the beneficiary's
interest cannot be reached by his creditors.
Mandatory Trust : The trustee must pay out income and principal to the beneficiaries according
to the instructions of the trust. They have no discretion to choose whether to do so or not. When
the money is paid out to the beneficiary the creditor has a right to it reach that property.
Spendthrift Trust : Expressly restricts the beneficiaries right to transfer his or her interest in the
trust. It does not allow beneficiary to actually promise or alienate his or her interest in the trust
assets or income. In this case creditors usually cannot reach that money because it was
specifically created as a spendthrift trust with the exception that if money is owed for tax lien,
child or spousal support or basic necessities the creditor might be able to reach the money for a
trust.
 The Area of law is
Trusts and Estates

With a focus on
Trust Modification and
Termination
The Rule is

Trusts can be modified or terminated upon consent of the settlor and all beneficiaries, or by court
order if modification or termination aligns with the settlor's intent and purposes of the trust.
 The Area of law is
Wills & Decedent's Estates

With a focus on
Abatement
The Rule is

Gifts by will are abated, i.e. reduced, when the assets of the estate are insufficient to pay all debts
and legacies. If not otherwise specified in the will, gifts are abated in the following order: (i)
intestate property; (ii) residuary bequests; (iii) general bequests; and then (iv) specific bequests.
Abatement within each category is pro rata.
 The Area of law is
Wills & Decedent's Estates

With a focus on
Life Insurance Policies
The Rule is

A beneficiary of a life insurance policy takes by virtue of the insurance contract. The proceeds
are not part of the decedent's estate, unless they are payable to the estate as beneficiary. Life
insurance policies typically provide that proceeds will only be paid to a beneficiary named on an
appropriate form filed with the insurance company; other possible methods of changing a
beneficiary are thus viewed as being excluded by the insurance contract. However, some courts
have upheld a beneficiary change by will if the insurance company does not object.
 The Area of law is
Wills & Decedent's Estates

With a focus on
Children
The Rule is

A parent-child relationship must be established for an individual to be classified as issue of

another. Under the UPC and the majority of jurisdictions, adoption establishes a parent-child
relationship between the stepparent and child, including full inheritance rights in both directions.
The common-law rule was that if a child was born out of wedlock, he could not inherit from his
natural father. Most jurisdictions provide that an out-of-wedlock child can inherit from his
natural father if (i) the father subsequently married the natural mother, (ii) the father held the
child out as his own and either received the child into his home or provided support, (iii)
paternity was proven by clear and convincing evidence after the father's death, or (iv) paternity
was adjudicated during the lifetime of the father by a preponderance of the evidence. Further,
the Supreme Court has held that a statute is unconstitutional if it denies inheritance rights to a
nonmaterial child when paternity has been established during the father's lifetime.
 The Area of law is
Wills & Decedent's Estates

With a focus on
Codicils
The Rule is

A codicil is a supplement to a will that alters, amends, or modifies it. A codicil must be executed
with the same formalities as a will. A validly executed codicil republishes the will as of the date
of the codicil.
A validly executed codicil may validate an invalid will if the codicil refers to the will with
sufficient certainty to identify and incorporate it, or if the codicil is on the same paper as the
invalid will. A will may incorporate by reference another writing provided the other writing
existed at the time the will was executed, is intended to be incorporated, and is described in the
will with sufficient certainty so as to permit its identification.
 The Area of law is
Wills & Decedent's Estates

With a focus on
Disclaimer
The Rule is

Under disclaimer statutes, a disclaiming party is treated as if she had predeceased the decedent.
When a disclaiming party is deemed to have predeceased the testator, the bequest passes either to
the disclaimant's issue or to the residuary legatee. The typical anti-lapse statute provides for
alternate disposition of lapsed bequests. Under the majority of state statutes, if the gift was made
to a relation of the testator within a specific statutory degree, and the relation predeceased the
testator but left issue, the issue succeeds to the gift, unless the will expressly states to the
contrary.
 The Area of law is
Wills & Decedent's Estates

With a focus on
Elective Shares
The Rule is

An elective share gives the surviving spouse a fraction of the decedent's estate if the surviving
spouse decides to elect that share, rather than a gift in the will....
 The Area of law is
Wills & Decedent's Estates

With a focus on
Holographic Wills
The Rule is

A holographic will is in a testator's handwriting, signed by the testator, and need not be
witnessed. To be valid, a will must be acknowledged by the testator and signed in the presence of
at least two attesting witnesses, who also sign the will within 30 days
 The Area of law is
Wills & Decedent's Estates

With a focus on
Incorporation
The Rule is

A will may incorporate by reference another writing not executed with testamentary formalities,
provided the other writing meets three requirements: (i) it existed at the time the will was
executed; (ii) the testator intended the writing to be incorporated; and (iii) the writing is
described in the will with sufficient certainty so as to permit its identification.
 The Area of law is
Wills & Decedent's Estates

With a focus on
Inter Vivos Transfers
The Rule is

In some jurisdictions, the surviving spouse can set aside inter vivos transfers made by the
decedent during marriage, without spousal consent, if the decedent initiated the transfer within
one year of her death, retained an interest in the property, or received less than adequate
consideration.
 The Area of law is
Wills & Decedent's Estates

With a focus on
Intestate Succession
The Rule is

Intestacy is the default statutory distribution scheme. It applies when, as here, an individual dies
without disposing of his property through a valid will. Intestacy statutes generally favor the
decedent's surviving spouse and issue, followed by the decedent's other relations....
 The Area of law is
Wills & Decedent's Estates

With a focus on
Lapse & Anti-Lapse
The Rule is

Under common law, if a beneficiary died before the testator or before a point in time by which he
was required to survive under the will, the gift failed and went to the residue unless the will
provided for an alternate disposition. Today, almost all states have anti-lapse statutes that
provide for the alternate disposition of lapsed gifts. Typically, an anti-lapse statute will save the
gift if: (i) the gift was made to a beneficiary related to the Testator by blood within a certain
degree of relationship, and (ii) that beneficiary is survived by issue.
 The Area of law is
Wills & Decedent's Estates

With a focus on
Pretermitted Heir Statutes
The Rule is

Pretermitted heir statutes permit children of a testator under certain circumstances to claim a
share of the estate even though they were omitted from the testator's will. While the birth or
adoption of a child after the execution of a will does not invalidate the will, such children are
typically not provided for in the will. If the testator then dies without revising the will, a
presumption is created that the omission of the child was accidental. An omitted child statute
does not apply if: (i) it appears that the omission of the child was intentional; (ii) the testator had
other children at the time the will was executed and left substantially all of his estate to the other
parent of the pretermitted child; or (iii) the testator provided for the child outside of the will and
intended this to be in lieu of a provision in the will.
 The Area of law is
Wills & Decedent's Estates

With a focus on
Replacement Gifts
The Rule is

Under common law, if the subject matter of a specific bequest is missing or destroyed, the
beneficiary takes nothing, not even the equivalent in cash. If the specifically-bequeathed item is
not a part of the estate at the testator's death, it is adeemed. The Uniform Probate Code created a
mild presumption against ademption. The UPC permits a beneficiary of a specific extinct gift to
inherit the property acquired by the testator as replacement property or the outstanding balance.
 The Area of law is
Wills & Decedent's Estates

With a focus on
Revocation
The Rule is

A will may be revoked wholly or partially in three ways: by subsequent writings, by physical
destruction of the will, or by operation of law. Physical destruction may take the form of burning
any portion of the will or canceling, tearing, obliterating, or destroying a material portion of the
will with the intent to revoke it. Both the act and a simultaneous intent to revoke must be proven
to yield a valid revocation.
 The Area of law is
Wills & Decedent's Estates

With a focus on
Rule of Construction
The Rule is

Because of the rule of construction that a will “speaks†at the time of death, a bequest of
generically described property applies to property that meets the generic description at the
testator's death. The doctrine of ademption applies only to specific bequests.
 The Area of law is
Wills & Decedent's Estates

With a focus on
Slayer Statute
The Rule is

A party cannot take property from a decedent when the party was responsible for the decedent's
death....
 The Area of law is
Wills & Decedent's Estates

With a focus on
Stock Dividends
The Rule is

At common law, a stock dividend is a property interest distinct from stock given by a specific
bequest. A bequest of stock owned by a testator when the testator's will is signed excludes
subsequently acquired shares of the same stock. A bequest of a certain number of shares is
deemed to include any additional shares of that security acquired by reason of a stock split,
reinvestment, or merger initiated by the original security. However, the beneficiary is not
entitled to any pre-death cash dividends or distributions.
Under common law, a bequest of stock owned by a testator when the testator's will was signed
excluded subsequently acquired shares of the same stock. Many states held that a stock dividend
is a property interest distinct from stock given by the specific bequest. Under the modern UPC
approach, a stock dividend is treated like a stock split instead of a cash dividend.
 The Area of law is
Wills & Decedent's Estates

With a focus on
Valid Will Requirements
(Attested Will)
The Rule is

A valid will must be in writing and signed with present testamentary intent by the testator in the
joint presence of two witnesses....
 The Area of law is
Agency and Partnership

With a focus on
Actual Authority
The Rule is

Actual authority can be express, where the agent is expressly given authority to act for the
principal. It can also be implied. Implied authority is present when the principal’s conduct leads
the agent to believe it has authority. This authority can be implied by custom, past course of
conduct by the principal, necessity, or an emergency circumstance.
 The Area of law is
Agency and Partnership

With a focus on
Apparent Authority
The Rule is

The elements of apparent authority are: (a) the person dealing with the agent must do so with a
reasonable belief in the agent’s authority, and (b) the belief must be generated by some act or
neglect on the part of the principal.
 The Area of law is
Agency and Partnership

With a focus on
Liability for Contracts
The Rule is

A principal is liable for contracts entered into by the agent when the agent acted with actual or
apparent authority to bind the principal. An agent is bound to a third party on a contract she
enters into if the agent had no actual or apparent authority or if the principal is undisclosed or
partially disclosed.
 The Area of law is
Corporations and LLCs

With a focus on
Fiduciary Duties
The Rule is

The duty of care requires directors to act on an informed basis, in good faith, and with the honest
belief that the action taken is in the best interest of the company. The duty of loyalty requires
directors to avoid conflicts of interest and to act in the best interest of the corporation.
 The Area of law is
Corporations and LLCs

With a focus on
Shareholder Lawsuits
The Rule is

Direct suits are appropriate when the wrong done amounts to a breach of duty owed to the
shareholder personally. Derivative suits are appropriate when the injury is caused to the
corporation and the shareholder is trying to enforce the corporation’s rights.
 The Area of law is
Corporations and LLCs

With a focus on
LLC Specifics
The Rule is

Articles of organization must be filed to create an LLC. Members of an LLC in a member-

managed LLC are treated as agents of the LLC with actual and apparent authority to bind the
LLC in ordinary affairs. Piercing the LLC veil requires showing that members abused the
privilege of incorporating and fairness requires holding them liable.