Feb. 2012 Bar Exam
Quiz yourself by thinking what should be in
each of the black spaces below before clicking
on it to display the answer.
Help!
|
|
||||
|---|---|---|---|---|---|
| CRIM - ELEMENTS OF ATTEMPT | show 🗑
|
||||
| CRIM - DEFENSES TO LIABILITY FOR ATTEMPT | show 🗑
|
||||
| show | Defendant entitled to acquittal if proof establishes:
a) disease of the mind
b) caused a defect of reason
c) such that defendant lacked ability at time his actions to either:
1) know the wrongfulness of his actions; or
2) understand nature & quality
🗑
|
||||
| show | defendant entitled to acquittal if he was unable to control his actions or to conform his conduct to the law
🗑
|
||||
| CRIM - DURHAM (NEW HAMPSHIRE) TEST | show 🗑
|
||||
| CRIM - A.L.I./MPC TEST | show 🗑
|
||||
| show | some jurisdictions - prosecution must prove sanity beyond a reasonable doubt
some jurisdictions - defense must prove insanity by preponderance
federal courts - defense must prove insanity by clear and convincing evidence
🗑
|
||||
| show | defendant is unable to:
(i) understand the nature of the proceedings brought against him; or
(ii) assist his lawyer in the preparation of his defense
🗑
|
||||
| CRIM - VOLUNTARY INTOXICATION | show 🗑
|
||||
| CRIM - INVOLUNTARY INTOXICATION | show 🗑
|
||||
| CRIM - INFANCY (COMMON LAW) | show 🗑
|
||||
| CRIM - INFANCY (MODERN STATUTES) | show 🗑
|
||||
| CRIM - SELF DEFENSE (NONDEADLY FORCE) | show 🗑
|
||||
| CRIM - SELF DEFENSE (DEADLY FORCE) | show 🗑
|
||||
| show | 1) withdrawal has been attempted and communicated
2) other party suddenly escalates minor fight into major one
🗑
|
||||
| CRIM - DEFENSE OF OTHERS | show 🗑
|
||||
| show | a. nondeadly force allowed if reasonable belief that such conduct necessary to terminate another's unlawful entry or attack
b. deadly force allowed when:
1) tumultuous entry plus personal danger
2) felony
🗑
|
||||
| CRIM - DEFENSE OF OTHER PROPERTY | show 🗑
|
||||
| CRIM - CRIME PREVENTION | show 🗑
|
||||
| show | a. by police officer - deadly force allowed only when felon threatens death or serious bodily harm
b. private person - nondeadly if reasonable grounds to believe guilt; deadly allowed ONLY IF injured person was actually guilty
🗑
|
||||
| show | person not guilty of an offense (other than homicide) if he performs an otherwise criminal act under the threat of imminent infliction of death or great bodily harm (or to a family member)
excusable, not justifiable
🗑
|
||||
| show | a. mistake must negate state of mind
b. mistake must be reasonable for crimes that involve malice and general intent crimes; no reasonableness required for specific intent crimes
c. mistake is no defense to strict liability crimes
🗑
|
||||
| show | a. general rule - no defense
b. may negate intent
c. exceptions
1) statute not reasonably available
2) reasonable reliance on judicial decision
3) reasonable reliance on official interpretation or advice (not private counsel)
🗑
|
||||
| CRIM - DEFENSES - CONSENT | show 🗑
|
||||
| CRIM - DEFENSES - ENTRAPMENT | show 🗑
|
||||
| CRIM - BATTERY | show 🗑
|
||||
| CRIM - ASSAULT | show 🗑
|
||||
| show | a. justifiable homicides (commanded or authorized by law)
b. excusable homicides (defense to criminal liability)
c. criminal homicides
🗑
|
||||
| CRIM - COMMON LAW CRIMINAL HOMICIDES | show 🗑
|
||||
| CRIM - "MALICE AFORETHOUGHT" | show 🗑
|
||||
| CRIM - DEADLY WEAPON RULE | show 🗑
|
||||
| CRIM - "VOLUNTARY MANSLAUGHTER" | show 🗑
|
||||
| CRIM - "ADEQUATE PROVOCATION" (COMMON LAW) | show 🗑
|
||||
| CRIM - INVOLUNTARY MANSLAUGHTER | show 🗑
|
||||
| show | all murders 2nd degree unless grounds for 1st:
a) deliberate and premeditated
b) 1st degree felony murder - stated by statute (if not stated, then 2nd degree felony murder)
🗑
|
||||
| show | - must convict of underlying felony
- felony must be independent of killing
- death must be foreseeable (but courts are likely to find this)
- must be DURING the commission of the felony
- killing of co-felon not basis for felony murder
🗑
|
||||
| show | a. must be cause-in-fact AND proximate cause
b. year-and-a-day rule @ common law
c. intervening acts:
1) act of nature - insulates liability
2) act of 3rd party - depends on foreseeability (medical negligence)
3) acts by victim (depends on foreseeabi
🗑
|
||||
| CRIM - FALSE IMPRISONMENT (COMMON LAW) | show 🗑
|
||||
| CRIM - KIDNAPPING (COMMON LAW) | show 🗑
|
||||
| CRIM - KIDNAPPING (MODERN) | show 🗑
|
||||
| CRIM - AGGRAVATED KIDNAPPING | show 🗑
|
||||
| CRIM - RAPE (COMMON LAW) | show 🗑
|
||||
| show | a. intercourse accomplished by force
b. intercourse accomplished by threats
c. woman incapable of consenting
d. consent obtained by fraud
🗑
|
||||
| CRIM - STATUTORY RAPE | show 🗑
|
||||
| show | any person who cohabits or has sexual intercourse with another not his spouse if:
a. open and notorious
b. person is married and sexual partner is not spouse
c. person is not married but knows the other is
🗑
|
||||
| show | sexual intercourse between or open and notorious cohabitation by unmarried couples
🗑
|
||||
| show | marriage or sexual act between persons who are too closely related
🗑
|
||||
| show | male person induces an unmarried female of previously chaste character to engage in an act of intercourse on promise of marriage
🗑
|
||||
| show | strict liability - marrying someone while having another living spouse
🗑
|
||||
| CRIM - LARCENY (COMMON LAW ELEMENTS) | show 🗑
|
||||
| show | victim consents to defendant's taking possession but this consent has been induced by a misrepresentation
🗑
|
||||
| show | (i) the fraudulent
(ii) conversion
(iii) of property
(iv) of another
(v) by a person in lawful possession of that property
🗑
|
||||
| CRIM - FALSE PRETENSES (ELEMENTS) | show 🗑
|
||||
| show | (i) a taking
(ii) of personal property of another
(iii) from the other's person or presence
(iv) by force or intimidation
(v) with the intent to permanently deprive him of it
🗑
|
||||
| show | the corrupt collection of an unlawful fee by an officer under color of his office
🗑
|
||||
| show | obtaining property from another by means of certain oral or written threats
🗑
|
||||
| CRIM - RECEIPT OF STOLEN PROPERTY (ELEMENTS) | show 🗑
|
||||
| show | a. making or altering
b. of a false writing
c. with intent to defraud
🗑
|
||||
| CRIM - UTTERING A FORGED INSTRUMENT (COMMON LAW ELEMENTS) | show 🗑
|
||||
| show | (i) malicious
(ii) destruction of or damage to
(iii) property of another
🗑
|
||||
| show | i. a breaking
ii. and entry
iii. of the dwelling
iv. of another
v. at nighttime
vi. with the intent of committing a felony therein
🗑
|
||||
| show | i. the malicious
ii. burning
iii. of the dwelling
iv. of another
🗑
|
||||
| show | i. malicious
ii. burning
iii. of one's own dwelling
iv. if the structure is situated either
a. in a city or town; or
b. so near to other houses as to create danger to them
🗑
|
||||
| CRIM - PERJURY (COMMON LAW ELEMENTS) | show 🗑
|
||||
| show | corrupt payment or receipt of anything of value in return for official action
🗑
|
||||
| show | entering into an agreement for valuable consideration to not prosecute another for a felony or to conceal the commission of a felony or whereabouts of a felon
🗑
|
||||
| show | 4th - prohibition against unreasonable searches and seizures
🗑
|
||||
| CRIMPRO - CONSTITUTIONAL REQ. BINDING ON STATES - 5TH | show 🗑
|
||||
| CRIMPRO - CONSTITUTIONAL REQ. BINDING ON STATES - 6TH | show 🗑
|
||||
| show | 8th - prohibition against cruel and unusual punishment
🗑
|
||||
| CRIMPRO - CONSTITUTIONAL REQ. NOT BINDING ON STATES | show 🗑
|
||||
| show | independent source; intervening act of free will; inevitable discovery; live witness testimony; in-court identification
🗑
|
||||
| show | inapplicable to grand juries; inapplicable to civil proceedings; inapplicable to violations of state law; inapplicable to internal agency rules; inapplicable in parole revocation; good faith exception; impeachment; knock-and-announce rule violations
🗑
|
||||
| show | conviction can be upheld if prosecution can show that the conviction would have resulted despite the harmless error beyond a reasonable doubt
🗑
|
||||
| CRIMPRO - SEIZURE OF THE PERSON | show 🗑
|
||||
| CRIMPRO - ARREST | show 🗑
|
||||
| CRIMPRO - INVESTIGATORY DETENTION | show 🗑
|
||||
| CRIMPRO - AUTOMOBILE STOPS | show 🗑
|
||||
| CRIMPRO - PRETEXTUAL AUTOMOBILE STOPS | show 🗑
|
||||
| show | ok if necessary to prevent destruction of evidence
🗑
|
||||
| CRIMPRO - STATION HOUSE DETENTION | show 🗑
|
||||
| CRIMPRO - LEGITIMATE EXPECTATIONS OF PRIVACY | show 🗑
|
||||
| show | area outside the "curtilage" (dwelling house and outbuildings) are subject to police entry and search
🗑
|
||||
| show | 1) issued by a neutral and detached magistrate; 2) based on probable cause; 3) particularly describe the place to be searched and the items to be seized
🗑
|
||||
| CRIMPRO - 3 REQUIREMENTS TO INVALIDATE A SEARCH WARRANT | show 🗑
|
||||
| CRIMPRO - EXECUTION OF SEARCH WARRANT | show 🗑
|
||||
| show | 1) search incident to lawful arrest; 2) automobiles if probable cause; 3) plain view; 4) consent; 5) stop and frisk; 6) hot pursuit/emergency
🗑
|
||||
| CRIMPRO - WIRETAPING REQUIREMENTS | show 🗑
|
||||
| CRIMPRO - 6TH AMENDMENT RIGHT TO COUNSEL | show 🗑
|
||||
| show | (i) right to remain silent; (ii) anything you say can and will be used against you in court; (iii) right to presence of an attorney; (iv) if he cannot afford one, one will be appointed if he so desires
🗑
|
||||
| CRIMPRO - DUE PROCESS STANDARD FOR PRETRIAL IDENTIFICATION | show 🗑
|
||||
| CRIMPRO - "GERSTEIN" HEARINGS | show 🗑
|
||||
| CRIMPRO - WHEN RIGHT TO SPEEDY TRIAL VIOLATED | show 🗑
|
||||
| show | if (i) evidence is favorable to the defendant because it impeaches or is exculpatory; and (ii) prejudice has resulted (or a reasonable probability that it has)
🗑
|
||||
| CRIMPRO - INCOMPETENT TO STAND TRIAL STANDARD | show 🗑
|
||||
| CRIMPRO - RIGHT TO JURY TRIAL - SERIOUS OFFENSES | show 🗑
|
||||
| show | no right to jury of 12, but must have at least 6
🗑
|
||||
| CRIMPRO - NO ABSOLUTE RIGHT TO UNANIMITY | show 🗑
|
||||
| show | may be for any rational or irrational reason, but cannot be based on race or gender alone
🗑
|
||||
| CRIMPRO - 6TH AMENDMENT RIGHT TO CONFRONT WITNESSES | show 🗑
|
||||
| CRIMPRO - WHEN IS PRIOR TESTIMONIAL EVIDENCE ADMISSIBLE? | show 🗑
|
||||
| show | must be "voluntary and intelligent;" must be on the record; defendant must understand (i) nature of charge; (ii) maximum penalty and mandatory minimum; (iii) right to plead not guilty and trial;
🗑
|
||||
| CRIMPRO - PROCEDURAL RIGHTS TO SENTENCING AND PUNISHMENT | show 🗑
|
||||
| show | a. punishment grossly disproportionate (but no right to compare to previous); b. death penalty for murder if judge has discretion; c. no death penalty for rape; no death penalty for felony murder where accomplice did not intend death (but ok if reck. indi
🗑
|
||||
| CRIMPRO - EXECUTION OF MINORS | show 🗑
|
||||
| CRIMPRO - HABEAS CORPUS PROCEEDING | show 🗑
|
||||
| show | jury trial - empaneling and swearing of jury; bench trials - first witness sworn; juvenile - commencement; not in civil proceedings
🗑
|
||||
| CRIMPRO - WHEN CAN STATE RETRY AFTER SUCCESSFUL APPEAL OF CONVICTION? | show 🗑
|
||||
| PROP - NONPOSSESSORY INTERESTS IN LAND | show 🗑
|
||||
| PROP - FEE SIMPLE ABSOLUTE | show 🗑
|
||||
| show | automatically terminates on the happening of a certain event and goes back to grantor
🗑
|
||||
| PROP - POSSIBILITY OF REVERTER | show 🗑
|
||||
| show | land goes to 3rd party upon happening of a condition (as opposed to grantor in a reverter situation)
🗑
|
||||
| show | continues until the grantor exercises her power of termination (right of entry) by bringing suit or making reentry (must be expressly reserved) (grantor may later waive) (inaction not necessarily waiver, unless detrimental reliance)
🗑
|
||||
| PROP - RIGHT OF ENTRY | show 🗑
|
||||
| show | if there is durational language and a power of termination, courts will typically construe it as a F.S.S.T.Cond.Sub.
🗑
|
||||
| PROP - FEE SIMPLE SUBJECT TO AN EXECUTORY INTEREST | show 🗑
|
||||
| show | typically lasts for the life of the grantee, but may be defeasible
🗑
|
||||
| PROP - LIFE ESTATE PUR AUTRE VIE | show 🗑
|
||||
| PROP - DOCTRINE OF WASTE | show 🗑
|
||||
| PROP - AFFIRMATIVE (VOLUNTARY) WASTE | show 🗑
|
||||
| show | if mining done before grant, life tenant may only use the existing mines, and may not open new ones
🗑
|
||||
| show | allowing land to fall into disrepair or failure to take rsbl steps to protect land
🗑
|
||||
| show | acts that econ. benefit property; life tenant can subst. alter or demolish existing buildings if: (i) market value of future interests not diminished and either (ii) remaindermen do not object; or (iii) change in neighborhood deprived property of value
🗑
|
||||
| show | transferable, devisable by will, descendible by inheritance
🗑
|
||||
| PROP - REMAINDERS | show 🗑
|
||||
| PROP - INDEFEASIBLY VESTED REMAINDER | show 🗑
|
||||
| show | certain to take on the termination of the preceding estates, but is subject to dimunition by reason of other persons becoming entitled to share in the remainder (aka "vested remainder subject to partial divestment)
🗑
|
||||
| show | when the remainderman is in existence and ascertained and his interest is not subject to any condition precedent, but his right to possession is subject to being defeated by the happening of some condition subsequent
🗑
|
||||
| PROP - CONTINGENT REMAINDER SUBJECT TO CONDITION PRECEDENT | show 🗑
|
||||
| show | created in favor of unborn or unascertained persons
🗑
|
||||
| PROP - DOCTRINE OF MERGER | show 🗑
|
||||
| show | if life estate given to A and remainder to A's heirs, Rule operates to abolish purported remainder and A takes both
🗑
|
||||
| PROP - DOCTRINE OF WORTHIER TITLE | show 🗑
|
||||
| PROP - REMAINDERS AND EXECUTORY INTERESTS | show 🗑
|
||||
| show | divests the interest of another transferee
🗑
|
||||
| PROP - SPRINGING EXECUTORY INTEREST | show 🗑
|
||||
| PROP - TRANSFERABILITY OF REMAINDERS AND EXECUTORY INTERESTS | show 🗑
|
||||
| PROP - RULE OF CONVENIENCE | show 🗑
|
||||
| show | must have an indefinite group of beneficiaries; Rule Against Perpetuities does not apply to trusts that are entirely charitable
🗑
|
||||
| show | if purposes of charitable trust are impossible to fulfill or are illegal or have already been fulfilled, court will redirect trust to a different purpose "as near as may be" to settlor's original intent
🗑
|
||||
| PROP - RULE AGAINST PERPETUITIES | show 🗑
|
||||
| PROP - RULE AGAINST PERPETUITIES APPLIES TO | show 🗑
|
||||
| PROP - WHEN AN INTEREST BECOMES "VESTED" | show 🗑
|
||||
| show | if Rule Against Perpetuities would so undermine transferor's intent, then entire disposition is void (rather than leaving others intact)
🗑
|
||||
| show | if it is possible that a disposition might vest remotely with respect to any member of the class, the entire class gift is invalid
🗑
|
||||
| show | as a general rule, any restriction on the transferability of a legal interest in property is void
🗑
|
||||
| show | i. disabling, under which any attempted transfer is ineffective; ii. forefeiture, under which an attempted transfer results in a forfeiture of the interest; and iii. promissory, under which an attempted transfer becomes a covenant
🗑
|
||||
| show | a. total restraints void; b. partial restraints ok if rsbl (but cannot discriminate)
🗑
|
||||
| PROP - RESTRAINTS ON LIFE ESTATE | show 🗑
|
||||
| show | marked by a right of survivorship
🗑
|
||||
| show | 4 unities: time, title, interest, and possession (common law); express language required
🗑
|
||||
| show | 1. inter vivos transfer by one joint tenant; 2. contract to convey by one joint tenant; testamentary disposition has no effect
🗑
|
||||
| PROP - TENANCY BY THE ENTIRETY | show 🗑
|
||||
| PROP - TENANCY IN COMMON | show 🗑
|
||||
| show | if one tenant wrongfully excludes another co-tenant from possession of the whole or any part of the whole of the premises, there is an ouster
🗑
|
||||
| show | joint tenant or tenant in common has a right to judicial partition either in kind or by sale and division of the proceeds
🗑
|
||||
| show | can be compelled for repairs, taxes, and mortgages, but not for improvements
🗑
|
||||
| show | when one co-tenant acquires a lienholder's claim against the co-tenancy property, she must give others a rsbl time to pay their share and acquire proportionate interest
🗑
|
||||
| show | a. fixed period of time; b. created by written leases (max 51 years for farm; 99 for urban prop. @ common law)
🗑
|
||||
| PROP - PERIODIC TENANCIES | show 🗑
|
||||
| show | estate in land that is terminable at the will of either the landlord or the tenant; if only landlord, similar right implied in favor of tenant (but not reverse)
🗑
|
||||
| show | may be done by either party without notice, but must be rsbl demand to quit premises; terminates by operation of law if i. party dies; ii. tenant commits waste; iii. tenant tries to assign; iv. landlord transfer interest; v. landlord executes term lease
🗑
|
||||
| PROP - TENANCIES AT SUFFERANCE | show 🗑
|
||||
| show | implied covenant that neither the landlord nor someone else with paramount title will interfere with the tenant's quiet enjoyment and possession of the premises; breached by actual eviction, partial actual eviction, or constructive eviction
🗑
|
||||
| PROP - IMPLIED WARRANT OF HABITABILITY | show 🗑
|
||||
| PROP - ASSIGNMENT AND SUBLEASES OF LEASEHOLD | show 🗑
|
||||
| show | objective intent of annexor determined by considering: i. nature of article; ii. manner in which attached; iii. amount of damage; iv. adaptation
🗑
|
||||
| PROP - EASEMENT | show 🗑
|
||||
| show | a. affirmative - right to enter up and make an affirmative use; b. negative - right to prevent possessor from engaging in something;
🗑
|
||||
| show | the right of special use benefits the holder of the easement in his physical use or enjoyment of another tract of land
🗑
|
||||
| show | holder of the easement interest acquires a right of special use in the servient tenement independent of his ownership or possession of another tract of land
🗑
|
||||
| show | a. express grant; b. express reservation - conveys land but retains right to continue use of tract; c. implication - preexisting use, profit a prendre, necessity; d. prescription - open and notorious, adverse, continuous & uninterrupted
🗑
|
||||
| show | a. stated conditions; b. unity of ownership; c. release; d. abandonment (intention never to make use of easement again); e. estoppel; f. prescription; g. necessity ends; h. condemnation; i. destruction of servient estate
🗑
|
||||
| show | nonpossessory interest in land; holder is entitled to enter upon the servient tenement and take the soil or a substance of the soil
🗑
|
||||
| show | a. intent; b. notice; c. horizontal privity - original parties shared some interest in the land independent of the covenant; d. vertical privity - successor must hold entire durational interest; e. touch and concern
🗑
|
||||
| show | a. intent; b. vertical privity; c. touch and concern
🗑
|
||||
| show | covenant that, regardless of whether it runs with the land, equity will enforce against the assignees of the burdened land who have notice of the covenant
🗑
|
||||
| PROP - ADVERSE POSSESSION | show 🗑
|
||||
| PROP - REQUIREMENTS FOR ADVERSE POSSESSION | show 🗑
|
||||
| show | if true owner under some disability to sue when the cause of action first accrued (i.e. inception of adverse possession), then the statute of limitations does not begin to run
🗑
|
||||
| PROP - WRITING REQUIREMENTS TO SATISFY STATUTE OF FRAUDS | show 🗑
|
||||
| PROP - DOCTRINE OF EQUITABLE CONVERSION | show 🗑
|
||||
| PROP - MARKETABLE TITLE | show 🗑
|
||||
| PROP - EFFECTS OF ENCUMBRANCES ON MARKETABILITY OF TITLE | show 🗑
|
||||
| PROP - LIQUIDATED DAMAGES "CAP" FOR BREACH OF SALE OF PROPERTY CONTRACT | show 🗑
|
||||
| PROP - VOID AND VOIDABLE DEEDS | show 🗑
|
||||
| show | forged, never delivered, obtained by fraud
🗑
|
||||
| show | executed by persons younger than the age of majority or who otherwise lack capacity and deeds obtained through fraud in the inducement, duress, undue influence, mistake, and breach of fiduciary duty
🗑
|
||||
| show | refers to grantor's intent; satisfied by words or conduct evidencing the grantor's intention that the deed have some present operative effect, i.e. that title pass immediately and irrevocably, even though the right of possession may be postponed
🗑
|
||||
| show | i. handed to grantee; ii. acknowledged by grantor before notary; iii. recorded
🗑
|
||||
| PROP - RETENTION OF INTEREST BY GRANTOR OR CONDITIONAL DELIVERY | show 🗑
|
||||
| show | in an escrow transaction, title does not pass to the grantee until performance of the named conditions; however, title of the grantee will "relate back" to the time of the deposit of the deed in escrow
🗑
|
||||
| PROP - RECORDING | show 🗑
|
||||
| show | practically every kind of deed, mortgage, contract to convey, or other instrument affecting an interest in land
🗑
|
||||
| show | subsequent BFP prevails over a prior grantee who failed to record (BFP must not have had notice)
🗑
|
||||
| PROP - RACE-NOTICE STATUTES | show 🗑
|
||||
| PROP - RACE STATUTES | show 🗑
|
||||
| show | i. purchaser; ii. without notice; iii. pay valuable consideration
🗑
|
||||
| show | person who takes from a BFP will prevail against any interest that the transferor-BFP would have prevailed against; true even where transferee had actual knowledge of the prior unrecorded interest
🗑
|
||||
| show | recorded deed that is not connected to the chain of sale; does not give constructive notice
🗑
|
||||
| show | i. act by defendant; ii. intent; iii. causation
🗑
|
||||
| show | intent to commit a tort against one person is transferred to the other tort or to the injured person
🗑
|
||||
| show | a. assault; b. battery; c. false imprisonment; d. trespass to land; e. trespass to chattels
🗑
|
||||
| show | minors and incompetents will be liable for their intentional torts
🗑
|
||||
| TORTS - PRIMA FACIE CASE FOR BATTERY | show 🗑
|
||||
| TORTS - PRIMA FACIE CASE FOR ASSAULT | show 🗑
|
||||
| TORTS - ASSAULT - CONSTRUCTION OF "APPREHENSION" | show 🗑
|
||||
| show | i. act that confines or restrains the plaintiff to bounded area; ii. intent; iii. causation
🗑
|
||||
| TORTS - FALSE IMPRISONMENT - SUFFICIENT METHODS OF CONFINEMENT OR RESTRAINT | show 🗑
|
||||
| show | 1. moral pressure; 2. future threats
🗑
|
||||
| TORTS - PRIMA FACIE CASE FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS | show 🗑
|
||||
| TORTS - WHAT CONSTITUTES "EXTREME/OUTRAGEOUS" CONDUCT? | show 🗑
|
||||
| show | i. plaintiff was present when injury occurred; ii. plaintiff was close relative of injured person; iii. defendant knew that plaintiff was present and a close relative
🗑
|
||||
| show | i. act of physical invasion to plaintiff's real property; ii. intent to bring about physical invasion; iii. causation
🗑
|
||||
| show | i. act of defendant interferes with plaintiff's right of possession in the chattel; ii. intent to perform the act; iii. causation; iv. damages
🗑
|
||||
| show | 1. intermeddling - direct damage; 2. dispossession - dispossesses plaintiff of right of lawful possession
🗑
|
||||
| TORTS - PRIMA FACIE CASE FOR CONVERSION | show 🗑
|
||||
| TORTS - DEFENSES TO INTENTIONAL TORTS | show 🗑
|
||||
| show | i. defamatory language; ii. "of or concerning" plaintiff; iii. publication; iv. damage to reputation; (for public figures - v. falsity; vi. fault)
🗑
|
||||
| show | communication to a third party who understood it
🗑
|
||||
| TORTS - LIBEL | show 🗑
|
||||
| TORTS - SLANDER | show 🗑
|
||||
| show | 1. business or profession; 2. loathsome disease; 3. crime involving moral turpitude; 4. unchastity of a woman
🗑
|
||||
| TORTS - DEFAMATION - PUBLIC FIGURES | show 🗑
|
||||
| TORTS - DEFENSES TO DEFAMATION | show 🗑
|
||||
| TORTS - INVASION OF RIGHT TO PRIVACY | show 🗑
|
||||
| show | unauthorized use for commercial advantage (limited to promotion of product/services)
🗑
|
||||
| show | 1. act of prying or intruding; 2. highly offensive to rsbl person; 3. thing is private
🗑
|
||||
| TORTS - FALSE LIGHT (PRIMA FACIE) | show 🗑
|
||||
| show | i. view that he does not hold; ii. actions he did not take
🗑
|
||||
| show | i. publication or disclosure of private information; ii. highly offensive to rsbl person
🗑
|
||||
| show | 1. misrepresentation; 2. scienter; 3. intent to induce reliance; 4. causation; 5. justifiable reliance; 6. damages
🗑
|
||||
| TORTS - PRIMA FACIE CASE FOR NEGLIGENT MISREPRESENTATION | show 🗑
|
||||
| show | i. valid contractual relationship or business expectancy; ii. defendant's knowledge of that relationship; iii. intentional interference that induces a breach or termination; iv. damage
🗑
|
||||
| TORTS - PRIMA FACIE CASE FOR MALICIOUS PROSECUTION | show 🗑
|
||||
| show | i. duty; ii. breach; iii. causation; iv. proximate cause; v. damages
🗑
|
||||
| TORTS - NEGLIGENCE - GENERAL DUTY OF CARE | show 🗑
|
||||
| show | professionals - required to possess and exercise knowledge of a member of the profession; children - like age, education, intelligence, and experience (must be at least 4)
🗑
|
||||
| TORTS - DUTY OF LANDOWNER TO THOSE OFF PREMISES | show 🗑
|
||||
| TORTS - DUTY OWED TO TRESPASSERS | show 🗑
|
||||
| TORTS - ATTRACTIVE NUISANCE DOCTRINE | show 🗑
|
||||
| show | (licensee = own purpose or business) duty to warn of known conditions (social guests are licensees)
🗑
|
||||
| show | (invitee = open to public or connected with business, churches, museums, store customers) same duty owed to licensees + duty to inspect
🗑
|
||||
| TORTS - FIREFIGHTERS' RULE | show 🗑
|
||||
| TORTS - EFFECT OF VIOLATING STATUTE RE: DUTY OF CARE | show 🗑
|
||||
| show | i. plaintiff must be within zone of danger; ii. plaintiff must suffer physical symptoms from distress (exception - bystander is family member who is there and sees accident happen)
🗑
|
||||
| show | where facts are such as to strongly indicate that plaintiff's injuries resulted from defendant's negligence, the trier of fact may be permitted to infer defendant's liability
🗑
|
||||
| TORTS - NEGLIGENCE - ACTUAL CAUSE (CAUSATION IN FACT) | show 🗑
|
||||
| TORTS - PROXIMATE CAUSE | show 🗑
|
||||
| TORTS - DEFENSES TO NEGLIGENCE | show 🗑
|
||||
| TORTS - CONTRIBUTORY NEGLIGENCE (EFFECT) | show 🗑
|
||||
| show | plaintiff must have known of risk and voluntarily assumed it
🗑
|
||||
| TORTS - COMPARATIVE NEGLIGENCE | show 🗑
|
||||
| show | 1. nature of def. activity imposes absolute duty to make safe; ii. activity is actual and proximate cause; iii. damage suffered
🗑
|
||||
| show | trespassing animals - liable if foreseeable; wild animals - strict liability; domestic - only if knowledge of dangerous propensity
🗑
|
||||
| TORTS - STRICT LIABILITY FOR ABNORMALLY DANGEROUS ACTIVITIES | show 🗑
|
||||
| show | i. intent; ii. negligence; iii. strict liability; iv. implied warranties of merchantability; v. representation theories (misrep. and express warranty)
🗑
|
||||
| show | manufacturing defects; design defects; inadequate warnings
🗑
|
||||
| TORTS - PRODUCTS LIABILITY - PRIMA FACIE CASE FOR STRICT LIABILITY | show 🗑
|
||||
| TORTS - IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS | show 🗑
|
||||
| TORTS - PRODUCTS LIABILITY - REPRESENTATION THEORIES (EXPRESS WARRANTY AND MISREP.) | show 🗑
|
||||
| show | substantial, unreasonable interference with another private individual's use or enjoyment of property he possesses
🗑
|
||||
| show | unrsbl interference with health, safety, or property rights of community
🗑
|
||||
| show | respondeat superior - employer liable if within scope of employment relationship; independent contractor - only if inherently dangerous
🗑
|
||||
| show | if indivisible injury to plaintiff, each is liable for entire damage
🗑
|
||||
| show | materiality exists when the proffered evidence relates to one of the substantive legal issues in the case
🗑
|
||||
| EVID - RELEVANCE | show 🗑
|
||||
| show | material and relevant evidence is admissible if competent, i.e. if it does not violate an exclusionary rule
🗑
|
||||
| EVID - DIRECT EVIDENCE | show 🗑
|
||||
| show | indirect and relies on inference
🗑
|
||||
| show | oral evidence given under oath
🗑
|
||||
| show | in the form of a writing
🗑
|
||||
| show | things versus assertions about things
🗑
|
||||
| show | must relate to time, event, or person in controversy
🗑
|
||||
| EVID - EXCEPTIONS TO GENERAL RULE OF RELEVANCE - CERTAIN SIMILAR OCCURRENCES RELEVANT | show 🗑
|
||||
| show | trial judge has discretion to exclude relevant evidence if probative value substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or undue delay or unfair surprise
🗑
|
||||
| show | 1. liability insurance; 2. subsequent remedial measures; 3. settlement offers; 4. withdrawn guilty pleas and offers to plead guilty; 5. payment of medical expenses
🗑
|
||||
| EVID - CHARACTER EVIDENCE | show 🗑
|
||||
| EVID - CHARACTER EVIDENCE - VICTIMS IN CRIMINAL CASE | show 🗑
|
||||
| EVID - EXCEPTIONS TO RAPE SHIELD | show 🗑
|
||||
| show | generally inadmissible unless independently relevant (see exceptions)
🗑
|
||||
| show | a. motive; b. intent; c. absence of mistake or accident; d. identity; e. preparation; f. opportunity, knowledge
🗑
|
||||
| show | admissible in civil or criminal cases where defendant is accused of committing an act of sexual assault or child molestation (must be disclosed 15 days before trial)
🗑
|
||||
| show | recognition of a fact as true without formal presentation of evidence; must be i. generally known within jurisdiction; or ii. capable of accurate and ready determination by resort to sources whose accuracy cannot be questioned
🗑
|
||||
| EVID - FACTS APPROPRIATE FOR JUDICIAL NOTICE | show 🗑
|
||||
| show | a. must be a request; b. appellate court can take judicial notice and required to assume prior judicial notice; c. judicial notice conclusive in civil cases but not in criminal
🗑
|
||||
| show | mandatory - a. federal public law; b. state public law; c. official regulations; permissive - municipal ordinances, private acts of Congress and state legislature, foreign laws
🗑
|
||||
| show | 1. authentication (recognition testimony or chain of custody)
🗑
|
||||
| EVID - REPRODUCTIONS AND EXPLANATORY REAL EVIDENCE | show 🗑
|
||||
| EVID - DOCUMENTARY EVIDENCE - AUTHENTICATION | show 🗑
|
||||
| show | a. certified public records; b. official publications; c. newspapers/periodicals; d. trade inscriptions; e. documents with certificate of acknowledgement; f. commercial paper; g. business records
🗑
|
||||
| show | in proving the terms of a writing, where the terms are material, the original writing must be produced; testimonial evidence of it only permitted of original proven to be unavailable (duplicates admissible if exact copies of original)
🗑
|
||||
| show | if an agreement is reduced to writing, that writing is the agreement and constitutes the only evidence of it (prior or contemporaneous negotiations merged into written agreement)
🗑
|
||||
| EVID - EXCEPTION TO PAROL EVID RULE - CHALLENGE TO VALIDITY OF CONTRACT | show 🗑
|
||||
| EVID - TESTIMONIAL EVIDENCE - BASIC TESTIMONIAL QUALIFICATIONS | show 🗑
|
||||
| show | a party or person interested in the event, or his predecessor in interest, is incompetent to testify to a personal transaction or communication with a deceased
🗑
|
||||
| EVID - FORM OF EXAMINATION OF WITNESS - LEADING QUESTIONS | show 🗑
|
||||
| EVID - FORM OF EXAMINATION OF WITNESS - IMPROPER QUESTIONS AND ANSWERS | show 🗑
|
||||
| EVID - FORM OF EXAMINATION OF WITNESS - USE OF MEMORANDA | show 🗑
|
||||
| EVID - OPINION TESTIMONY BY LAY WITNESSES | show 🗑
|
||||
| EVID - SITUATIONS WHERE OPINIONS OF LAY WITNESSES ADMISSIBLE | show 🗑
|
||||
| EVID - OPINION TESTIMONY BY EXPERT WITNESSES | show 🗑
|
||||
| show | a. prior inconsistent statements (if foundation laid); b. bias or interest; c. conviction of crime involving dishonesty (or felony if not too remote [10 years]); d. opinion/reputation for truthfulness; e. sensory deficiencies
🗑
|
||||
| show | 1. general obj. sustained - upheld if any ground; 2. general obj. overruled - not avail. on appeal unless evid. not admissible under any circumstances; 3. spec. obj. sustained - upheld on appeal only if ground stated was correct
🗑
|
||||
| show | a. witness offer - proceed with examination outside of jury's hearing; b. lawyer offer - counsel states what witness would have testified; c. tangible offer - marked, authenticated, tangible evidence
🗑
|
||||
| EVID - TESTIMONIAL PRIVILEGES | show 🗑
|
||||
| EVID - HOW PRIVILEGE CAN BE WAIVED | show 🗑
|
||||
| show | must be att.-client relationship; must be confidential communication; duratio is indefinite and termination of the relationship does not terminate priv.; not app. for future acts of wrongdoing, dispute between client and att.
🗑
|
||||
| EVID - PHYSICIAN-PATIENT PRIVILEGE | show 🗑
|
||||
| EVID - HUSBAND-WIFE PRIVILEGE | show 🗑
|
||||
| EVID - SPOUSAL IMMUNITY | show 🗑
|
||||
| EVID - PRIVILEGE FOR CONFIDENTIAL MARITAL COMMUNICATIONS | show 🗑
|
||||
| EVID - PRIVILEGE AGAINST SELF-INCRIMINATION | show 🗑
|
||||
| EVID - GOVERNMENTAL PRIVILEGE TO CONCEAL IDENTITY OF INFORMER | show 🗑
|
||||
| EVID - HEARSAY RULE | show 🗑
|
||||
| EVID - EXAMPLES OF OUT-OF-COURT STATEMENTS THAT ARE NOT HEARSAY | show 🗑
|
||||
| EVID - STATEMENTS THAT ARE NONHEARSAY UNDER THE FEDERAL RULES - PRIOR STATEMENTS BY WITNESS | show 🗑
|
||||
| show | personal knowledge not required; former judicial admissions are conclusive, extrajudicial statements can be explained, silence may be an implied admission
🗑
|
||||
| show | unavailability means declarant: i. exempted by privilege; ii. refuses to testify; iii. lacks memory; iv. dead or mentally ill; or v. absent and proponent cannot procure attendance
🗑
|
||||
| show | party against whom offered was party in the former action; same subject matter; grand jury testimony not admissible; under oath;
🗑
|
||||
| HEARSAY EXCEPTIONS - DECLARANT UNAVAILABLE - STATEMENTS AGAINST INTEREST | show 🗑
|
||||
| show | in a prosecution for homicide or a civil action, declaration by unavailable declarant while believing death was imminent that concerns cause or circumstances of what he believed to be his impending death is admissible
🗑
|
||||
| HEARSAY EXCEPTIONS - DECLARANT UNAVAILABLE - STATEMENTS OF PERSONAL OR FAMILY HISTORY | show 🗑
|
||||
| show | statements of an unavailable declarant are admissible when offered against a party who has engaged in wrongdoing that intentionally procured the declarant's unavailability
🗑
|
||||
| EVID - HEARSAY EXCEPTIONS - DECLARANT'S AVAILABILITY IMMATERIAL - PRESENT STATE OF MIND | show 🗑
|
||||
| show | startling event required and statement must relate to startling event; statement must be made while under stress of excitement
🗑
|
||||
| show | comment made concurrently with sense impression;
🗑
|
||||
| EVID - HEARSAY EXCEPTIONS - DECLARANT'S AVAILABILITY IMMATERIAL - DECLARATIONS OF PHYSICAL CONDITION | show 🗑
|
||||
| show | for profit doesn't matter; must have been maintained in conjunction with a business activity;
🗑
|
||||
| EVID - HEARSAY EXCEPTIONS - DECLARANT'S AVAILABILITY IMMATERIAL - PAST RECOLLECTION RECORDED | show 🗑
|
||||
| show | what may be admitted: records, reports, statements, or data compilations if they set forth: i. activities of office or agency; ii. matters observed pursuant to a duty of law; or iii. factual findings resulting from an investigation made pursuant to law
🗑
|
||||
| EVID - HEARSAY EXCEPTIONS - DECLARANT'S AVAILABILITY IMMATERIAL - OFFICIAL RECORDS - JUDGMENTS | show 🗑
|
||||
| EVID - HEARSAY EXCEPTIONS - DECLARANT'S AVAILABILITY IMMATERIAL - ANCIENT DOCUMENTS | show 🗑
|
||||
| EVID - HEARSAY EXCEPTIONS - DECLARANT'S AVAILABILITY IMMATERIAL - LEARNED TREATISES | show 🗑
|
||||
| EVID - HEARSAY EXCEPTIONS - DECLARANT'S AVAILABILITY IMMATERIAL - REPUTATION | show 🗑
|
||||
| show | admissible hearsay
🗑
|
||||
| show | admissible if generally used an relied upon by the public or persons in particular occupation
🗑
|
||||
| show | if primary purpose is to help in an ongoing emergency, then nontestimonial; if primary purpose to establish or prove past events potentially relevant to later criminal prosecution, then testimonial
🗑
|
||||
| show | applies to things movable and supersedes common law in sale of goods
🗑
|
||||
| show | a. void contract - without any legal effect, cannot be enforced; b. voidable contract - either party may elect to avoid; c. unenforceable contract - may be unenforceable due to various defenses
🗑
|
||||
| CONT - CREATION OF A CONTRACT | show 🗑
|
||||
| CONT - MUTUAL ASSENT | show 🗑
|
||||
| show | must create a rsbl expectation in the offeree that the offeror is willing to enter into a contract on the basis of the offered terms
🗑
|
||||
| show | i. expression of promise, undertaking, or commitment to enter into contract?; 2. certainty & definiteness of terms?; 3. communication to offeree?
🗑
|
||||
| show | capable of being enforced? i. identity of offeree; ii. subject matter; iii. price
🗑
|
||||
| show | terminates if communicated before offeree accepts; effective when received by offeree; options not revocable; merchant's firm offer not revocable; may not be revocable if offeree detrimentally relied on offer; unilateral contract irrevocable if part perf.
🗑
|
||||
| show | rejection - terminates offer; counteroffer rejects first offer and creates a new one (distinguish mere inquiry); effective when received by offeror
🗑
|
||||
| CONT - TERMINATION OF OFFER - TERMINATION BY OPERATION OF LAW | show 🗑
|
||||
| show | manifestation of assent to the terms of an offer
🗑
|
||||
| show | not accepted until performance is completed; generally, offeree not required to give notice, but required to notify offeror within rsbl time of completion of perf.
🗑
|
||||
| CONT - ACCEPTANCE OF OFFER FOR BILATERAL CONTRACT | show 🗑
|
||||
| show | acceptance must be unequivocal acceptance of each and every term of the offer; common law says any difference in terms is a rej. and counteroffer
🗑
|
||||
| CONT - ACCEPTANCE OF OFFER FOR BILATERAL CONTRACT - MAILBOX RULE | show 🗑
|
||||
| show | a. offeree sends rejection, then acceptance - mailbox rule does not apply, whichever received first is effective; b. offeree sends acceptance, then rejection - mailbox rule gen. applies,
🗑
|
||||
| CONT - CONSIDERATION | show 🗑
|
||||
| show | i. must be a bargained-for exchange between the parties; and ii. that which is bargained for must be considered of legal value, courts will generally not inquire into adequacy of consideration
🗑
|
||||
| show | effective consideration if detriment to the promisee in performing an act or making a promise - i.e. does something he is under no legal obligation to do
🗑
|
||||
| show | detriment or benefit to either party
🗑
|
||||
| CONT - REQUIREMENT OF MUTUALITY | show 🗑
|
||||
| CONT - SURETYSHIP PROMISES | show 🗑
|
||||
| CONT - PROMISSORY ESTOPPEL OR DETRIMENTAL RELIANCE | show 🗑
|
||||
| CONT - DEFENSES TO FORMATION - ABSENCE OF MUTUAL ASSENT | show 🗑
|
||||
| show | no contract exists
🗑
|
||||
| show | if either consideration or subject matter is illegal, then defense to enforcement
🗑
|
||||
| show | individuals in certain protected classes are legally incapable of incurring binding contractual obligations; timely assertion of this defense by a promisor makes the contract voidable at his election
🗑
|
||||
| CONT - DEFENSES BASED ON LACK OF CAPACITY - CONTRACTS OF INFANTS | show 🗑
|
||||
| CONT - DEFENSES BASED ON LACK OF CAPACITY - MENTAL INCAPACITY | show 🗑
|
||||
| show | considered to have made a voidable promise; may affirm upon recovery
🗑
|
||||
| show | voidable and may be rescinded as long as not affirmed; economic duress gen. not a defense
🗑
|
||||
| show | a. writing requirement; b. signature required; c. interest in land - leases of > 1 year, easements of > 1 year, fixtures, minerals in structures, goods priced at $500 or more
🗑
|
||||
| CONT - DEFENSES TO ENFORCEMENT - UNCONSCIONABILITY | show 🗑
|
||||
| show | where parties express their agreement in a writing with the intent that it embody the full and final expression of their bargain, any other expressions-written or oral-made prior to the writing, as well as any made contemp. with the writing, inadmissible
🗑
|
||||
| show | Corbin test - (majority) takes into account specific circumstances of transaction involved; Williston test - look only at face of agreement and decide whether contracting parties in general would include the term sought to be proved
🗑
|
||||
| show | UCC 2-207 provides that a contract can be ormed even though terms of offer do not match terms of accep.; a. involving nonmerchant - terms of offer govern; b. contracts b/t merchants - additional terms in accep. usually included unless materially alter
🗑
|
||||
| CONT - KNOCKOUT RULE | show 🗑
|
||||
| CONT - DELIVERY TERMS AND RISK OF LOSS | show 🗑
|
||||
| show | implied in every sale by a merchant who deals in goods of the kind sold
🗑
|
||||
| show | goods must at least: i. pass w/o objection; ii. be of fair average quality; iii. be fit for ordinary purpose; iv. be of even kind, quality, and quantity; v. be adequately contained/packaged/labeled; vi. conform to promises on label
🗑
|
||||
| show | requires perfect tender - the delivery and condition of the goods must be exactly as promised in the contract
🗑
|
||||
| CONT - DISTINCTION BETWEEN PROMISE AND CONDITION | show 🗑
|
||||
| show | nonrepudiating party has 4 alternatives: i sue immediately; ii. wait to sue; iii. treat contract as discharged; iv. urge promisor to perform
🗑
|
||||
| CONT - RULE OF DIVISIBILITY | show 🗑
|
||||
| show | all 3 must be satisfied: i. performance of each party divided into 2 or more parts; ii. # of parts due from each party is same; iii. perf. of each part by one party is agreed on as the equivalent of the corresponding part
🗑
|
||||
| show | 1. impossibility must be objective; 2. impossibility must arise after; 3. each party excused from perf.; 4. imposs. can be partial (discharges only that part); 5. imposs. can be temporary (only suspends)
🗑
|
||||
| CONT - CONTRACTS TO BUILD & IMPOSSIBILITY | show 🗑
|
||||
| CONT - DISCHARGE OF DUTY TO PERFORM BY IMPRACTICABILITY | show 🗑
|
||||
| CONT - DISCHARGE OF DUTY TO PERFORM BY FRUSTRATION | show 🗑
|
||||
| CONT - DISCHARGE OF DUTY TO PERFORM BY RESCISSION | show 🗑
|
||||
| show | requires: a. mutual assent; b. consideration;
🗑
|
||||
| show | occurs when new contract substitutes a new party to receive benefits and assume duties; elements - i. previous valid K; ii. agreement among all parties; iii. immediate extinguishment of duties of old parties; iv. valid & enforceable new K
🗑
|
||||
| CONT - DISCHARGE OF DUTY TO PERFORM BY ACCORD & SATISFACTION | show 🗑
|
||||
| CONT - DETERMINING MATERIALITY OF BREACH | show 🗑
|
||||
| show | (Article 2) if goods or their delivery fail to conform to the contract in any way, the buyer generally may reject all, accept all, or accept any and reject rest
🗑
|
||||
| show | goods must have subst. defect that impairs their value, and must have accepted them on rsbl belief that defect was cured, and accepted because of difficulty of discovering defects; must be in rsbl time and before any subst. change occurs
🗑
|
||||
| CONT - NONMONETARY REMEDIES - SPECIFIC PERF. | show 🗑
|
||||
| show | 1. laches; 2. unclean hands; 3. sale to a bona fide purchaser
🗑
|
||||
| CONT - NONMONETARY REMEDIES UNDER ARTICLE 2 - BUYER | show 🗑
|
||||
| CONT - SELLER'S NONMONETARY REMEDIES | show 🗑
|
||||
| CONT - MONETARY REMEDIES FOR BREACH - DAMAGES | show 🗑
|
||||
| show | put the nonbreaching party where she would have been had the promise been performed; standard measure - expectation; also reliance damage measurement (position if K never formed); consequential - if rsbly foreseeable; incidental (sale of goods)
🗑
|
||||
| CONT - PUNITIVE DAMAGES | show 🗑
|
||||
| CONT - NOMINAL DAMAGES | show 🗑
|
||||
| show | must be rsbl in view of actual or anticipated harm; req. for enforcement: i. damages must have been difficult to estimate at formation; ii. must be rsbl forecast and not a penalty; recoverable even if no actual damages
🗑
|
||||
| show | seller doesn't deliver or rejection - diff. in K price and market price or cost of replacement goods; seller delivers nonconf. goods - if buyer accepts, warranty damages, consequential damages
🗑
|
||||
| CONT - K'S FOR SALE OF GOODS - SELLER'S DAMAGES | show 🗑
|
||||
| show | difference between K price and fair market value
🗑
|
||||
| show | breach by employer - full K price; breach by employee - cost to replace employee (if intentional); same for unintentional, but can be mitigated for work done
🗑
|
||||
| show | breach by owner - builder gets profits (or profits + costs if work started) (+ interest if completed); breach by builder = cost of completion (+ rsbl comp. for delay if applicable) (+ interest if late perf.)
🗑
|
||||
| show | based on unjust enrichment; measure of damages is generally value of benefit conferred
🗑
|
||||
| CONT - RESCISSION | show 🗑
|
||||
| CONT - REFORMATION | show 🗑
|
||||
| show | 4 years for sales K's
🗑
|
||||
| show | intended vs. incidental benficiaries (according to language of K);
🗑
|
||||
| show | federal courts have judicial power over all cases and controversies: 1. arising under Cons., laws, treaties of US; 2. admiralty/maritime; 3. if US is party; 4. b/t states; 5. diversity; 6. citizen vs. foreign state/citizen
🗑
|
||||
| CONS - POWER OF JUDICIAL REVIEW | show 🗑
|
||||
| CONS - TYPES OF FEDERAL COURTS | show 🗑
|
||||
| show | original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party; appellate juris. in all cases arising under Cons., act of Cong., or treaty, appeal, certiorari (4 must agree)
🗑
|
||||
| show | immediate threat of harm
🗑
|
||||
| show | federal court will not hear a case that has become moot; real, live controversy must exist at all stages of review, not merely when complaint filed
🗑
|
||||
| show | SCOTUS will not decide a cons. challenge unless a person has standing; components - 1. injury; 2. causation; 3. redressability
🗑
|
||||
| show | P must have suffered injury AND: i. 3rd parties find it difficult to assert own rights; ii. injury suffered by P adversely affects relationship with 3rd party
🗑
|
||||
| show | standing to challenge action that causes injury to org. itself, or to its members IF: i. injury in fact to members; ii. injury related to org.'s purpose; AND iii. neither nature of claim nor relief requires participation of indiv. members in lawsuit
🗑
|
||||
| CONS - CITIZENSHIP STANDING | show 🗑
|
||||
| show | gen. no standing to litigate gov. expenditures; exception: Cong. measures under taxing and spending power that violate establishment clause
🗑
|
||||
| CONS - ADEQUATE AND INDEPENDENT STATE GROUNDS | show 🗑
|
||||
| CONS - ABSTENTION | show 🗑
|
||||
| show | SCOTUS will not decide political questions; political questions are: i. those issues committed by the Constitution to another branch of gov.; or ii. those inherently incapable of resolution and enforcement by the judicial process
🗑
|
||||
| CONS - 11TH AMENDMENT LIMITS ON FEDERAL COURTS - WHAT IS BARRED? | show 🗑
|
||||
| CONS - SOVEREIGN IMMUNITY - WHAT IS BARRED? | show 🗑
|
||||
| show | a. actions against state officers for injunctions; b. actions against state officers for monetary damages from officer (for violations of federal law); c. actions against state officers for PROSPECTIVE payments from state
🗑
|
||||
| CONS - EXCEPTIONS TO 11TH AMENDMENT - CONGRESSIONAL REMOVAL OF IMMUNITY UNDER 14TH AMENDMENT | show 🗑
|
||||
| CONS - NECESSARY AND PROPER "POWER" | show 🗑
|
||||
| CONS - TAXING POWER | show 🗑
|
||||
| CONS - SPENDING POWER | show 🗑
|
||||
| CONS - COMMERCE POWER | show 🗑
|
||||
| show | federal law must :i. regulate the channels of interstate commerce; or ii. regulate the instrumentalities; or iii. regulate activities that have subs. effect
🗑
|
||||
| show | Cong. has power to declare war, raise and support armies, provide/maintain navy, make rules/regulations for armed forces, and organize/arm militia
🗑
|
||||
| show | Cong. has power to dispose of and make all needful rules/regulations respecting the territory or other property belonging to the US
🗑
|
||||
| show | -
🗑
|
||||
| CONS - BANKRUPTCY POWER | show 🗑
|
||||
| show | Cong has power to establish post offices and post roads
🗑
|
||||
| CONS - POWER OVER CITIZENSHIP | show 🗑
|
||||
| CONS - ADMIRALTY POWER | show 🗑
|
||||
| show | -
🗑
|
||||
| CONS - PATENT/COPYRIGHT POWER | show 🗑
|
||||
| CONS - LIMITATIONS ON CONGRESSIONAL DELEGATION OF POWER | show 🗑
|
||||
| show | extends to aides who engage in acts that would be immune if performed by a legislator, but NOT state legislators; bribes excluded; speeches outside Cong. excluded; defamation excluded
🗑
|
||||
| CONS - CONGRESSIONAL "VETO" OF EXECUTIVE ACTIONS INVALID | show 🗑
|
||||
| show | Pres. empowered with advice and consent of Senate to appoint all ambassadors, other public ministers and consuls, judges of SCOTUS, and all other officers of US, but Cong. may vest appointment of inferior officers in Pres., courts, or heads of departments
🗑
|
||||
| CONS - EXEC. POWERS - REMOVAL | show 🗑
|
||||
| show | Pres. empowered to grant reprieves and pardons for offenses against the US, except in cases of impeachment; includes power to commute sentence
🗑
|
||||
| CONS - EXEC. POWERS - VETO POWER | show 🗑
|
||||
| CONS - EXEC. POEWRS - POWER OVER EXTERNAL AFFAIRS | show 🗑
|
||||
| CONS - EXEC. PRIVILEGE/IMMUNITY | show 🗑
|
||||
| CONS - IMPEACHMENT | show 🗑
|
||||
| CONS - SUPREMACY CLAUSE | show 🗑
|
||||
| show | 1. actual conflict; 2. state prevents federal objective
🗑
|
||||
| CONS - PREEMPTION | show 🗑
|
||||
| show | full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state
🗑
|
||||
| show | state need not consent
🗑
|
||||
| show | US must consent
🗑
|
||||
| CONS - FEDERAL OFFICER AS DEFENDANT | show 🗑
|
||||
| CONS - PRIVILEGES AND IMMUNITIES CLAUSE - ARTICLE IV | show 🗑
|
||||
| CONS - PRIVILEGES AND IMMUNITIES CLAUSE - 14TH AMENDMENT | show 🗑
|
||||
| show | lies exclusively with Cong. (traffic on high seas)
🗑
|
||||
| CONS - REGULATION OF INTERSTATE COMMERCE | show 🗑
|
||||
| CONS - EXAMPLES OF INVALID REGULATIONS AGAINST INTERSTATE COMMERCE | show 🗑
|
||||
| show | repealed prohibition, gave state governments wide latitude over the importation of liquor and the conditions under which liquor is sold or used within the state
🗑
|
||||
| CONS - POWER OF STATES TO TAX INTERSTATE COMMERCE | show 🗑
|
||||
| show | imposed on the users of goods purchased out of state; not considered to discriminate against interstate commerce; state may force seller to collect use tax
🗑
|
||||
| show | generally do not discriminate against interstate commerce;
🗑
|
||||
| show | taxes based on a percentage of the assessed value of the property in question; generally valid; goods in transit totally exempted
🗑
|
||||
| show | for privilege of doing business within the state; must meet basic requirements (subst. nexus, not discriminate, fair apportionment, fairly related to services)
🗑
|
||||
| CONS - BILL OF RIGHTS (FIRST 10) | show 🗑
|
||||
| CONS - BILL OF RIGHTS - RIGHTS NOT APPLICABLE TO STATES | show 🗑
|
||||
| show | prohibits states from enacting any law that retroactively impairs contract rights (does not affect contracts not yet entered into)
🗑
|
||||
| CONS - EX POST FACTO LAWS | show 🗑
|
||||
| CONS - BILLS OF ATTAINDER | show 🗑
|
||||
| show | government shall not take a person's life, liberty or property without due process of law (contemplates fair process/procedure, and neutral decisionmaker)
🗑
|
||||
| CONS - PROCEDURAL DUE PROCESS - IS LIFE, LIBERTY, OR PROPERTY BEING TAKEN? | show 🗑
|
||||
| show | fundamental rights - waiver of fees required; nonfundamental rights - waiver not required
🗑
|
||||
| show | 5th Amend. prohibits governmental taking of private property "for public use without just compensation"
🗑
|
||||
| show | 1. actual appropriation or physical invasion (exc: emergencies); 2. use restrictions - denial of ALL economic value of land = taking; remedy = compensation, or termination of regulation and damages
🗑
|
||||
| show | substantive due process - guarantees that laws will be rsbl and not arbitrary; equal protection - similarly situated persons will be treated alike
🗑
|
||||
| CONS - SUBST. DUE PROCESS & EQUAL PROTECTION - WHAT STANDARD OF REVIEW WILL THE COURT APPLY? | show 🗑
|
||||
| show | right to travel, privacy, voting, all 1st Amend. rights (strict scrutiny); other rights = business/labor, taxation, lifestyle, zoning (RBR)
🗑
|
||||
| show | EPC of 14th Amend. has no counterpart in Constitution applicable to government; limited to state action (but grossly unrsbl discrimination by fed. gov. violates 5th Amend.)
🗑
|
||||
| show | 1. facial disc. - explicit distinction; 2. disc. application - neutral on face, applied in diff. manner; 3. disc. motive - neutral on face and application, disproportionate impact (but must be purpose, not just effect)
🗑
|
||||
| CONS - SUSPECT CLASSIFICATIONS | show 🗑
|
||||
| CONS - QUASI-SUSPECT CLASSIFICATIONS | show 🗑
|
||||
| show | 1. marriage; 2. use of contraceptives; 3. abortion; 4. obscene reading material (but not child porn); 5. keeping extended family together; 6. rights of parents; 7. intimate sexual conduct; 8. collection and distribution of personal data
🗑
|
||||
| show | pre-viab rule: no undue burdens; inf. consent not undue; waiting period is not undue; parental consent not undue; (if bypass available); spousal consent IS undue; partial-birth ban NOT undue; post-viab rule: may prohibit unless woman's health threatened
🗑
|
||||
| CONS - FUNDAMENTAL RIGHTS - RIGHT TO VOTE | show 🗑
|
||||
| show | individuals have a fundamental right to travel from state to state and to be treated equally if they become a resident
🗑
|
||||
| show | SCOTUS has NOT explained which standard of review should be used
🗑
|
||||
| show | free speech clause restricts government regulation of private speech
🗑
|
||||
| CONS - FIRST AMENDMENT FREEDOMS - CONTENT-BASED REGULATIONS | show 🗑
|
||||
| show | depends on whether the forum involved is a public forum, a designated public forum, a limited public forum, or a nonpublic forum
🗑
|
||||
| show | must: i. be content neutral; ii. be narrowly tailored to serve an important government interest; iii. leave open alternative channels of communication
🗑
|
||||
| CONS - TEST TO DETERMINE WHETHER AN INJUNCTION THAT RESTRICTS SPEECH OR PROTEST IS CONSTITUTIONAL | show 🗑
|
||||
| CONS - LIMITED PUBLIC FORUMS AND NONPUBLIC FORUMS | show 🗑
|
||||
| CONS - UNPROTECTED SPEECH - REGULATION/PUNISHMENT BECAUSE OF CONTENT | show 🗑
|
||||
| CONS - PRIOR RESTRAINTS | show 🗑
|
||||
| CONS - FREEDOM OF THE PRESS | show 🗑
|
||||
| CONS - FREEDOM OF ASSOCIATION AND BELIEF | show 🗑
|
||||
| CONS - FREEDOM OF RELIGION | show 🗑
|
||||
| show | 1. sect preference presumed invalid; 2. no sect preference - Lemon test: valid if i. secular purpose; ii. primary effect neither advances nor inhibits religion; and iii. does not produce excessive gov. entanglement
🗑
|
||||
| show | relationship that arises when principal manifests an intention that the agent shall act on his behalf
🗑
|
||||
| show | 1. capacity - principal - contract cap.; agent - minimal cap.; 2. formalities - consent of both parties, no consid. req., no writing req.
🗑
|
||||
| AGEN - MODES OF CREATING AGENCY RELATIONSHIP | show 🗑
|
||||
| show | 1. duty of loyalty (no self-dealing); 2. duty of obedience (obey all rsbl directions; 3. duty of rsbl care (in light of local community standards, taking into acct skill of agent)
🗑
|
||||
| AGEN - REMEDIES OF PRINCIPAL FOR BREACH OF DUTY BY AGENT | show 🗑
|
||||
| show | a. liability of agent for subagent breaches; b. liability of subagent to agent
🗑
|
||||
| show | a. duties imposed by law (compensation/reimbursement); b. duties imposed by K; c. duty to cooperate
🗑
|
||||
| AGEN - REMEDIES OF AGENT | show 🗑
|
||||
| AGEN - ACTUAL & APPARENT AUTHORITY - ACTUAL AUTHORITY | show 🗑
|
||||
| AGEN - TERMINATION OF ACTUAL AUTHORITY | show 🗑
|
||||
| AGEN - IRREVOCABLE AGENCIES (MAY NOT BE UNILATERALLY TERMINATED) | show 🗑
|
||||
| show | prin. can still be held liable on K's entered into on behalf of 3rd party if 3rd party can show agent had apparent authority to act ("holding out," rsbl reliance); lingering app. auth. may require notice to term.
🗑
|
||||
| AGEN - INHERENT AUTHORITY | show 🗑
|
||||
| AGEN - RATIFICATION | show 🗑
|
||||
| show | 1. prin. must know material facts; 2. prin. must accept entire transaction; 3. prin. must have capacity; 4. no consid. needed (undisclosed prin. may not ratify)
🗑
|
||||
| AGEN - LIABILITIES OF THE PARTIES - 3RD PARTY VS. PRIN. | show 🗑
|
||||
| AGEN - LIABILITIES OF THE PARTIES - 3RD PARTY VS. AGENT | show 🗑
|
||||
| AGEN - RIGHT TO HOLD 3RD PARTY LIABLE | show 🗑
|
||||
| show | an association of two or more persons to carry on as co-owners a business for profit
🗑
|
||||
| show | except with respect to partners' personal liability for partnership obligations, a partnership generally is treated as legal entity distinct form indiv. partners; may own land; may be sued
🗑
|
||||
| PART - GOVERNING LAW - RUPA | show 🗑
|
||||
| show | 1. agreement (writing not req.); 2. capacity - K capacity; 3. legality of purpose; 4. consent of all
🗑
|
||||
| PART - PROOF OF PARTNERSHIP EXISTENCE | show 🗑
|
||||
| show | a. title to property; b. designation of entity by parties; c. extensive activity involved; d. sharing of gross returns;
🗑
|
||||
| PART - FAILURE TO SHARE LOSSES | show 🗑
|
||||
| show | may be bound to third parties if they consent to holding themselves out as partners; those that hold non-partners out as partners may be liable due to power to bind
🗑
|
||||
| PART - PROPERTY OF PARTNERSHIP | show 🗑
|
||||
| PART - COMMON LAW CRITERIA FOR UNTITLED PARTNERSHIP PROPERTY | show 🗑
|
||||
| show | i. management and other rights; ii. right to share in part. profits and losses and receive distributions
🗑
|
||||
| show | each partner has transferable interest in part., which consists of share of profits/losses and right to recieve dist. (unless agreement to the contrary)
🗑
|
||||
| show | not entitled to interfere in management or administration of part. business or affairs, to require information, or to inspect books
🗑
|
||||
| PART - RIGHT TO PARTICIPATE IN MANAGEMENT | show 🗑
|
||||
| show | partnership must indemnify partners for payments rsbly made and obligations rsbly incurred by a partner in carrying on business of part.
🗑
|
||||
| show | focus on apparent auth.; act of any part. in ordinary course of business binds partnership unless: i. part. had no auth.; and ii. 3rd party had notice
🗑
|
||||
| PART - STATEMENT OF AUTHORITY | show 🗑
|
||||
| PART - LIABILITIES OF PARTNERS - CIVIL LIABILITY | show 🗑
|
||||
| PART - LIABILITIES OF PARTNERS - CRIMINAL LIABILITY | show 🗑
|
||||
| PART - DISSOCIATION - EVENTS OF DISSOCIATION | show 🗑
|
||||
| PART - DISSOLUTION - EVENTS CAUSING DISSOLUTION | show 🗑
|
||||
| PART - DISTRIBUTION OF ASSETS - FINAL ACCOUNTING | show 🗑
|
||||
| show | 1. voting (partnership agreement); 2. filing with sec. of state; 3. must be named RLLP/LLP; 4. no personal liability for partnership obligations
🗑
|
||||
| show | composed of one or more general partners and one or more limited partners; general partners personally liable; limited partners not (except to make contributions)
🗑
|
||||
| show | 1. certificate filed with sec. of state; 2. records office; 3. agent for service of process
🗑
|
||||
| show | NO FIDUCIARY DUTY (but still duty of good faith/fair dealing)
🗑
|
||||
| PR - SOURCES OF REGULATION | show 🗑
|
||||
| show | 1. citizenship req. - state may NOT require; 2. residency req. - state may NOT require; 3. character req. OK; may not not reject for political membership, personal beliefs
🗑
|
||||
| PR - DISCIPLINARY PROCESS | show 🗑
|
||||
| show | a. complaint; b. screening and hearing
🗑
|
||||
| show | a. disbarment; b. suspension; c. public or private censure
🗑
|
||||
| PR - UNAUTHORIZED PRACTICE OF LAW | show 🗑
|
||||
| show | lawyer licensed in one state may not: i. open law office in other state; ii. hold himself out as practicing in other state; or iii. establish a "systematic and continuous presence" in other state without becoming licensed
🗑
|
||||
| PR - PERMISSIBLE PRACTICING IN ANOTHER STATE | show 🗑
|
||||
| show | 1. law firms; 2. may not partner with laypersons to practice law or share legal fees; lawyer must exercise independent judgment
🗑
|
||||
| show | lawyer must not participate in offering or making: i. partnership or employment agreement that restricts rights of lawyer to practice after term. of relationship; or ii. agreement in which restriction on lawyer's right to practice is part of settlement
🗑
|
||||
| PR - SALE OF LAW PRACTICE | show 🗑
|
||||
| PR - SALE OF LAW PRACTICE - CA DIFFERENCES | show 🗑
|
||||
| PR - ADVERTISING VS. SOLICITATION | show 🗑
|
||||
| show | 1. communications must be true and not misleading; 2. must include name and office address of at least 1 lawyer in firm;
🗑
|
||||
| show | may enter into RRA if arrangement not exclusive and lawyer explains arrangement to client when making refferal
🗑
|
||||
| PR - ADDITIONAL CA RESTRICTIONS ON ADVERTISING | show 🗑
|
||||
| PR - SOLICITATION RULES | show 🗑
|
||||
| show | model rules suggest 50 hours/year
🗑
|
||||
| PR - ACCEPTING APPOINTMENTS | show 🗑
|
||||
| PR - EMERGENCY REP. OF NONSOLICITED PERSON WITH DIMINISHED CAPACITY | show 🗑
|
||||
| show | 1. concurrent - directly adverse to interests of another client; 2. client consent - 4 conditions - rsbly believes can rep.; rep. not prohibited; clients not adverse; informed, written consent
🗑
|
||||
| PR - GENERAL RULE OF IMPUTED CONFLICTS | show 🗑
|
||||
| show | not subject to discipline for imputed conflict
🗑
|
||||
| PR - OWNERSHIP/FINANCIAL INTEREST ADVERSE TO CLIENT | show 🗑
|
||||
| PR - DESIGNATING ONESELF AS BENEFICIARY | show 🗑
|
||||
| PR - LITERARY/MEDIA RIGHTS BASED ON REP. | show 🗑
|
||||
| PR - FINANCIAL ASSISTANCE | show 🗑
|
||||
| PR - COMPENSATION FROM PARTY OTHER THAN CLIENT | show 🗑
|
||||
| show | may not seek unless all clients give informed written consent
🗑
|
||||
| show | can't do it; also can't settle malpractice claim with unrep. client or former client
🗑
|
||||
| PR - LAWYERS CLOSELY RELATED TO EACH OTHER | show 🗑
|
||||
| show | must not do unless preexisting
🗑
|
||||
| PR - CONFLICTS FACING INSURANCE DEFENSE LAWYERS | show 🗑
|
||||
| PR - REPRESENTING AN ORG. - DUTIES | show 🗑
|
||||
| PR - SECURITIES LAWYER'S DUTIES UNDER SARBANES-OXLEY | show 🗑
|
||||
| show | 1. duty to avoid fee misund.; 2. fee must be rsbl; 3. minimum fee schedules NO, maximum OK; 4. contingency - must be signed in writing, noting fees (can't for domestic rel. or crim.); 5. no ref. fees unless client consent in writing & prop. work & no hike
🗑
|
||||
| PR - DISCLOSURE OF LACK OF PROF. LIABILITY INSURANCE | show 🗑
|
||||
| PR - COMPETENT REPRESENTATION | show 🗑
|
||||
| PR - DUTY TO PRESERVE CONFIDENCES | show 🗑
|
||||
| PR - DUTY TO PROTECT CLIENT'S PROPERTY | show 🗑
|
||||
| PR - COMMUNICATIONS WITH ADVERSE PARTIES | show 🗑
|
||||
| show | must not knowingly: i. make false statement; ii. fail to correct false statement; iii. fail to disclose adverse authority; iv. offer false evidence
🗑
|
||||
| show | if you KNOW it's perjury, must try to convince otherwise, may withdraw, must disclose enough info to court to set matter straight
🗑
|
||||
| show | narrative statement; cannot rely on false parts in closing argument
🗑
|
||||
| PR - FAIRNESS TO OPPOSING PARTY AND COUNSEL | show 🗑
|
||||
| PR - AVOIDING IMPROPER CONTACT WITH JURORS AND THE COURT | show 🗑
|
||||
| PR - TRIAL PUBLICITY | show 🗑
|
||||
| PR - TERMINATION OF LAWYER-CLIENT RELATIONSHIP - MANDATORY WITHDRAWAL | show 🗑
|
||||
| show | 1. client persists in course of action that is criminal/fraudulent; 2. lawyer's services used to perpetuate crime/fraud; 3. repugnance; 4. client fails to subst. fulfill oblig. to lawyer; 5. unrsbl financial burden; vi. other good cause
🗑
|
||||
| PR - SPECIAL ROLE OF PUBLIC PROSECUTOR | show 🗑
|
||||
| show | must report if know that lawyer has committed violation of Rules that raises subst. question as to that lawyer's honesty, trustworthiness, or fitness in other respects (but not in CA)
🗑
|
||||
| show | i. sued for malp. 3x in a year; 2. found civilly liable for fraud/breach of fid.duty; 3. sanctioned more than $1k; 4. charged with fel.; 5. conv. of serious crimes; 6. disciplined in another juris.
🗑
|
||||
| TRUS - CHARACTERISTICS OF EXPRESS PRIVATE TRUST | show 🗑
|
||||
| TRUS - GROUNDS FOR REMOVAL OF TRUSTEE | show 🗑
|
||||
| TRUS - RESIGNATION OF TRUSTEE | show 🗑
|
||||
| TRUS - ACCEPTANCE OF TRUST | show 🗑
|
||||
| show | must be definite; need not be identified, but must be susceptible of identification at time interest comes to enjoyment, class OK if sufficiently definite
🗑
|
||||
| show | any purpose allowed that is not contrary to public policy; invalid if illegal or involves comm. of crime/tort
🗑
|
||||
| TRUS - CREATION OF EXPRESS TRUSTS | show 🗑
|
||||
| show | essential terms must be ascertained from terms of will itself, or incorporation by ref. or facts having indep. significance or power of appointment
🗑
|
||||
| show | if will makes absolute gift to beneficiary, but in reality conditioned on holding for another, intended benef. may present clear and conv. extrinsic evid. to create constructive trust
🗑
|
||||
| TRUS - SEMI SECRET TRUST | show 🗑
|
||||
| TRUS - DISTINCTIVE RULES APPLICABLE TO CHARITABLE TRUSTS | show 🗑
|
||||
| TRUS - CHARITABLE | show 🗑
|
||||
| show | does not apply
🗑
|
||||
| TRUS - HONORARY TRUSTS | show 🗑
|
||||
| TRUS - ALIENABILITY OF TRUST | show 🗑
|
||||
| TRUS - RESTRAINTS ON ALIENATION - SPENDTHRIFT TRUSTS | show 🗑
|
||||
| show | 1. creditors rights - before discretion - cannot reach, after discretion - payments made to creditors;
🗑
|
||||
| show | trustee required to pay or apply only so much of the income or principal or both as necessary for support of beneficiary
🗑
|
||||
| TRUS - POWER OF SETTLOR TO REVOKE OR MODIFY TRUST | show 🗑
|
||||
| TRUS - MODIFICATION OR TERMINATION OF TRUST BY BENEF. | show 🗑
|
||||
| TRUS - JUDICIAL POWER TO TERMINATE/MODIFY TRUST | show 🗑
|
||||
| TRUS - JOINT POWERS OF MULTIPLE TRUSTEES | show 🗑
|
||||
| TRUS - POWERS OF TRUSTEE | show 🗑
|
||||
| show | rsbly prudent person; duty of loyalty (no self-dealing); duty to separate and earmark trust res (no commingling); duty to perform personally (no delegation); duty to defend trust from attack; duty to preserve trust res and make it productive
🗑
|
||||
| TRUS - LIABILITIES OF TRUSTEE | show 🗑
|
||||
| show | clauses that attempt to relieve the trustee of liability for breach are construed narrowly and held void against public policy generally
🗑
|
||||
| TRUS - LIABILITIES OF 3RD PARTIES TO THE TRUST | show 🗑
|
||||
| TRUS - WILL SUBSTITUTES | show 🗑
|
||||
| TRUS - REVOCABLE INTER VIVOS TRUST | show 🗑
|
||||
| TRUS - POUR-OVER GIFT FROM WILL TO REVOACABLE TRUST | show 🗑
|
||||
| show | contingent benef. trust
🗑
|
||||
| TRUS - TOTTEN TRUST BANK ACCOUNTS | show 🗑
|
||||
| TRUS - RESULTING TRUSTS | show 🗑
|
||||
| show | to prevent unjust enrichment
🗑
|
||||
| TRUS - WHEN ARE RESULTING TRUSTS IMPLIED? | show 🗑
|
||||
| show | 1. arising from theft/conversion; 2. fraud/duress; 3. breach of fid.duty; 4. homicide; 5. breach of promise - no cons.trust
🗑
|
||||
| CORP - GENERAL CHAR. OF A CORP. | show 🗑
|
||||
| CORP - FORMATION OF A DE JURE CORPORATION | show 🗑
|
||||
| show | 1. de facto corp. - statute for valid inc. avail., colorable compliance/good faith, exercise of corp. priv.; corp. by estoppel - those treating as corp. estopped from denying later
🗑
|
||||
| CORP - DISREGARD OF CORP. ENTITY ("PIERCING THE CORPORATE VEIL") | show 🗑
|
||||
| show | a. creditors; b. shareholders
🗑
|
||||
| CORP - TRADITIONAL PAR VALUE APPROACH TO SHARES | show 🗑
|
||||
| show | a. elect and remove directors; b. modify bylaws; c. approve fundamental corporate changes
🗑
|
||||
| CORP - ANNUAL SHAREHOLDER MEETING | show 🗑
|
||||
| CORP - PROXIES | show 🗑
|
||||
| show | valid for 11 months unless it provides otherwise
🗑
|
||||
| CORP - REVOCABILITY OF PROXIES | show 🗑
|
||||
| CORP - MECHANICS OF SHAREHOLDER VOTING | show 🗑
|
||||
| show | voting trusts (must be given to corp.); voting agreements; shareholder management agreements
🗑
|
||||
| CORP - SHAREHOLDERS' INSPECTION RIGHTS | show 🗑
|
||||
| show | yes at common law, no under RMBCA (unless in articles); may be waived; do not apply to compensation for directors/employees, shares issued for consid. other than money, shares w/o general voting rights but with dist. pref.
🗑
|
||||
| CORP - SHAREHOLDER SUITS - DIRECT ACTIONS | show 🗑
|
||||
| CORP - SHAREHOLDER SUITS - DERIVATIVE SUITS | show 🗑
|
||||
| show | at least one class of stock must have a right to recover the corporation's net assets on dissolution; generally solely within board's discretion; cannot become insolvent; directors may be pers. liable for unlawful distributions
🗑
|
||||
| show | general responsibility for management of business and affairs of the corporation
🗑
|
||||
| show | 1 or more; elected at annual meetings (maybe w/ staggering); may resign with notice; vacancies may be filled by directors and shareholders;
🗑
|
||||
| show | with or w/o cause by shareholders, unless articles provide only for cause
🗑
|
||||
| show | regular or special; within or outside state; must all simultaneously hear each other; reg. meetings w/o notice; special require 2 days; quorum usually 1/2, art. may say otherwise (min 1/3); maj of quo. to approve; action by written unan. consent
🗑
|
||||
| show | comm. require 2 or more; may NOT: authorize dist, submit actions to shareholders, fill vacancies on boards, amend articles, alter bylaws, approve mergers, authorize reaq. of shares, issue shares
🗑
|
||||
| show | duty of due care, duty of loyalty, duty to protect interests of other intracorporate parties
🗑
|
||||
| show | court will not question decision in hindsight if due care was given
🗑
|
||||
| CORP - DIRECTORS DUTY NOT TO WASTE | show 🗑
|
||||
| CORP - CONFLICTING INTEREST TRANSACTION WITH DIRECTOR | show 🗑
|
||||
| show | may set their own, unless otherwise provided for in articles or bylaws (must be rsbl to fulfill fid.duty)
🗑
|
||||
| show | determined by bylaws
🗑
|
||||
| CORP - POWERS OF OFFICERS | show 🗑
|
||||
| show | may resign with notice; corp. may remove with or w/o cause
🗑
|
||||
| show | mandatory - d/o who prevails in defending; discretionary - if unsuccessful and: d acted in good faith; and believed conduct in best interest of corp.
🗑
|
||||
| CORP - CHANGES IN CORPORATE STRUCTURE - FUNDAMENTAL CHANGES | show 🗑
|
||||
| CORP - GENERAL PROCEDURE FOR FUNDAMENTAL CHANGE | show 🗑
|
||||
| show | "housekeeping" needs no approval, such as: extending duratio, deleting orig. directors names, changing abbrev. or geo. loc.;
🗑
|
||||
| show | may require vote of voting group with dissenter's rights if: change aggregate # shares auth., change shares in class to diff. #, exchange/reclassify shares of class, change rights/preferences, cancel dist. rights
🗑
|
||||
| show | merger - blending of one or more into another corp, who survives; share exchange - 1 corp buys all outs. or one or more classes of another corp; conversion - 1 entity changing its form into another
🗑
|
||||
| show | approval by shareholders of surviving corp not required if: articles not differ; and each shareh. same # shares; and voting power of shares issued from merger comprises no more than 20% of voting power of shares surviving
🗑
|
||||
| CORP - SHORT FORM MERGER SUBSIDIARY | show 🗑
|
||||
| show | only shareh of corp being acquired need approve
🗑
|
||||
| show | requires shareh approval
🗑
|
||||
| CORP - DISPOSITION OF PROPERTY OUTSIDE REGULAR COURSE OF BUSINESS | show 🗑
|
||||
| CORP - DISSENTING SHAREHOLDERS APPRAISAL REMEDY - WHO MAY DISSENT? | show 🗑
|
||||
| show | corp must give notice; shareh must give notice of intent to demand payment; corp must give dissenters notice; shareholder must demand payment; corp must pay fair value; shareh must give notice of dissatisfaction and show own value; court
🗑
|
||||
| CORP - TENDER OFFERS AND CORPORATE CONTROL TRANSACTIONS | show 🗑
|
||||
| show | must be open for 20 days; must be open to all holders of class; shareh must be permitted to withdraw tendered shares while offer open; if oversubscribed, must pro rata; if price goes up, goes up for all
🗑
|
||||
| CORP - TARGET OF TENDER OFFER | show 🗑
|
||||
| show | by incorporators or initial directors (if shares not yet issued/business not yet commenced); by corporate act (fundamental change); must wind up and liquidate affairs; known claims notice and min 120 days
🗑
|
||||
| show | failure to pay fees, failure to deliver annual report; failure to maintain reg. agent; failure to notify state of change in agent; expiration of corporate duration
🗑
|
||||
| CORP - JUDICIAL DISSOLUTION | show 🗑
|
||||
| CORP - LLC | show 🗑
|
||||
| show | file articles with sec.of.state; management presumed to be by all members (or as in articles); if management by memb, maj must approve decisions and each is an agent
🗑
|
||||
| show | on basis of contributions, may only transfer interest in profits/losses, not management
🗑
|
||||
| CORP - PROFESSIONAL CORPORATIONS | show 🗑
|
||||
| show | election and filing; must deemed prof corp, or prof assoc, or service corp, or PC/PA/SC
🗑
|
||||
| show | architects, attorneys, CPAs, engineers, dentists, doctors, pharmacists, psychologists
🗑
|
||||
| CORP - FOREIGN CORPORATIONS | show 🗑
|
||||
| show | unlawful for any person, directly, or indirectly, to use means or instrumentality of interstate commerce to defraud or make untrue statements or omissions that would operate to defraud re: security
🗑
|
||||
| show | violation if breach duty of trust and confidence owed to issuer, shareholder of issuer, or another person who is source of material nonpublic info
🗑
|
||||
| show | tipper liable if tipping for improper purpose; tippee liable if he breached and knew tipper was breaching
🗑
|
||||
| show | gov can prosecute person under 10b-5 in breach of duty of trust owed to source of info
🗑
|
||||
| CORP - 16B | show 🗑
|
||||
| show | a. public company audit committee; b. corporate resp. for financial reports; no personal loans to execs; crim penalties for destruction of audit records; whistleblower protection
🗑
|
||||
| CP - APPLICATION TO NON-MARRIAGES | show 🗑
|
||||
| show | ask: 1. when was asset acquired? 2. how? (what source, by labor or gift?); 3. is there a legal presumption?; 4. did either or both spouses act in a way to have changed the asset's character?
🗑
|
||||
| CP - TIME OF ACQUISITION | show 🗑
|
||||
| CP - SOURCE OF ACQUISITION | show 🗑
|
||||
| CP - HOW TO OVERCOME PRESUMPTION OF CP IF ACQUIRED DURING MARRIAGE | show 🗑
|
||||
| show | still subject to cp system while married and domiciled in CA
🗑
|
||||
| CP - DIFFICULT TO CLASSIFY ASSETS | show 🗑
|
||||
| CP - PRESUMPTION THAT PROPERTY ACQUIRED DURING MARRIAGE IS CP | show 🗑
|
||||
| CP - PRESUMPTIONS RELATED TO FORM OF TITLE | show 🗑
|
||||
| CP - PRESUMPTION OF UNDUE INFLUENCE | show 🗑
|
||||
| CP - UNFAIR ADVANTAGE | show 🗑
|
||||
| show | agreements to treat earnings as sp during marriage; no consid required; must be a writing;
🗑
|
||||
| show | agreements promoting divorce; agreements executed involuntarily; unconscionability coupled with nondisclosure
🗑
|
||||
| CP - AGREEMENTS DURING MARRIAGE (TRANSMUTATION) | show 🗑
|
||||
| show | joint tenancy; tenancy in common; community property; community property with right of survivorship
🗑
|
||||
| CP - PRESUMPTIONS FOR TRACING FUNDS IN COMMINGLED ACCOUNT | show 🗑
|
||||
| show | exhaustion method - proponent may show that at time of purchase comm funds in acct already exhausted so sep funds must have been used; direct tracing - sufficient sep and comm funds, and intent was to use sep funds to purchase asset
🗑
|
||||
| CP - COMMUNITY FUNDS OR LABOR USED TO ENHANCE VALUE OF SP | show 🗑
|
||||
| show | Pereira - when management by spouse was primary cause of growth or productivity; Van Camp - when character of sep business is largely responsible for its growth or productivity
🗑
|
||||
| show | community gets interest in that amount; rest is sp
🗑
|
||||
| CP - WHEN CP USED TO IMPROVE SP | show 🗑
|
||||
| show | purchases made with borrowed funds treated as cash purchases;
🗑
|
||||
| show | divorce court has juris; both parties must make full disclosure; equal division req; norm is in-kind division
🗑
|
||||
| CP - DEVIATION FROM IN-KIND DIVISION AT DIVORCE | show 🗑
|
||||
| show | one spouse deliberately misappropriates cp; one spouse has incurred education debts; tort liability; separate debt has been incurred; one spouse receives comm estate personal inj damages
🗑
|
||||
| CP - DISPOSITION BY TESTAMENTARY TRANSFER | show 🗑
|
||||
| show | all property not transferred by will or testamentary substitute passes by intestacy;
🗑
|
||||
| show | passes to surviving spouse
🗑
|
||||
| show | entirely to surv spouse - if no issue, parent, brother, sister, or issue of brother/sister; 1/2 to surv spouse - 1 child or issue of deceased child, or no child but parent (or issue); 1/3 to surv spouse - >1 child/issue, issue of 2+ deceased kids
🗑
|
||||
| show | quasi-cp; at divorce, treated same as cp
🗑
|
||||
| CP - COMMON LAW MARRIAGES | show 🗑
|
||||
| show | not lawfully married, but has good faith belief that she is lawfully married; must have rsbly objective basis
🗑
|
||||
| show | has almost same prop. rights as lawful spouse; quasi-marital property
🗑
|
||||
| CP - UNMARRIED COHABITANTS | show 🗑
|
||||
| CP - MANAGEMENT OF SP | show 🗑
|
||||
| CP - MANAGEMENT OF CP | show 🗑
|
||||
| CP - EXCEPTIONS TO MANAGEMENT OF CP | show 🗑
|
||||
| show | when one spouse deposits her earnings in a bank account titled in her name alone, she effectively deprives her spouse of his equal management rights
🗑
|
||||
| show | gifts of cp require written consent; fid.duty to manage cp;
🗑
|
||||
| CP - CREDITORS' RIGHTS FOLLOW MANAGEMENT RIGHTS | show 🗑
|
||||
| show | power over particular type of case
🗑
|
||||
| show | ability of a court having subj matter juris to exercise power over a particular D or item of prop
🗑
|
||||
| show | statutory limitations; constitutional limitations - D must have such contacts w/ forum so juris is fair & rsbl; D gets notice & hearing; assessment of pers. juris for fed cts same as state cts
🗑
|
||||
| show | in personam - when forum has power over person of part.D; in rem - when ct has power to adjudicate rights of all persons in world w/ respect to part. item of prop.; quasi in rem - when ct has power to det. whether part. indiv. own prop. w/i ct's ctrl
🗑
|
||||
| CIV - STATUTORY LIMITATIONS ON IN PERSONAM JURIS | show 🗑
|
||||
| CIV - LONG ARM STATUTES | show 🗑
|
||||
| CIV - CONSTITUTIONAL LIMITATIONS ON IN PERSONAM JURIS | show 🗑
|
||||
| CIV - IN PERSONAM - NOTICE | show 🗑
|
||||
| show | nexus - no juris if prop not located in state, no juris if prop brought in by fraud/force;
🗑
|
||||
| show | nexus (minimum contacts standard); type I - dispute involves rights of parties in prop itself; type II - when dispute unrelated to ownership of prop, must be minimum contacts b/t D and forum
🗑
|
||||
| show | district cts have orig juris of all civil actions where matter in cont. >$75k and is between: citizens of diff. states; citizens of State and foreign state; a foreign state as P of State or diff. states
🗑
|
||||
| show | must be complete diversity when action commenced;
🗑
|
||||
| show | assignment of claims ignored in determining div; adroit selection of named members of class OK;
🗑
|
||||
| CIV - IN EXCESS OF $75K | show 🗑
|
||||
| CIV - CAN ONE AGGREGATE CLAIMS TO SATISFY FED. DIV. REQUIREMENT OF 75K? | show 🗑
|
||||
| CIV - SUPPLEMENTAL JURIS | show 🗑
|
||||
| show | a federal ct, in exercise of diversity juris, is required to apply the subst. law of state in which it is sitting (but still apply fed. proc. law); may apply fed. law if on point & valid
🗑
|
||||
| CIV - NO FED. DIRECTIVE ON POINT, IS ISSUE SUBST. OR PROC? | show 🗑
|
||||
| show | bound to apply law that would be applied by highest state court; if no decision made, or decisions old and not on point, may consider decisions in other juris
🗑
|
||||
| show | appellate court reviews federal trial judge's deicsion as to state law de novo
🗑
|
||||
| show | tort - governmental interest approach; contract - choice of law clauses
🗑
|
||||
| CIV - EXCEPTIONS TO DIVERSITY OF CITIZENSHIP JURIS | show 🗑
|
||||
| show | req: single accident, 75 people died, at discreet location, minimal diversity of citizenship, and one of: i. D resides in different state than situs of acc., or ii. any 2 D's reside in diff. states, or iii. subst. parts of acc. in diff. states
🗑
|
||||
| show | federal question must appear in complaint, might be implied
🗑
|
||||
| CIV - PENDENT JURIS OVER STATE CLAIMS | show 🗑
|
||||
| CIV - EXCLUSIVE FED JURIS | show 🗑
|
||||
| show | limited - $25k or less; more than $25k
🗑
|
||||
| show | common law doctrine that permits a district court to dismiss an action in favor of a more convenient forum outside the federal judicial system
🗑
|
||||
| CIV - VENUE - GENERAL RULES FOR MOST CIVIL ACTIONS | show 🗑
|
||||
| show | corp - where contract made or oblig/liab arises; uninc assoc or partnerships - principal place of business if on file with sec of state
🗑
|
||||
| show | equitable remedy by which a person is ordered to act or to refrain from acting in a specified manner
🗑
|
||||
| CIV - PRELIMINARY INJUNCTION | show 🗑
|
||||
| CIV - TEMPORARY RESTRAINING ORDER | show 🗑
|
||||
| CIV - CA STANDARD OF FACT PLEADING OR CODE PLEADING | show 🗑
|
||||
| CIV - FEDERAL COMPLAINTS | show 🗑
|
||||
| show | must contain: statement of facts constituting the cause of action and a demand for judgment for the relief pleader claims to be entitled
🗑
|
||||
| CIV - PRE-ANSWER MOTIONS - RULE 12(B) | show 🗑
|
||||
| show | D in an unlimited case may file a general or special demurrer to entire complaint or any causes within it; gen grounds are: pleading fails to state facts suff to const a cause of action; or ct lacks subj matter juris
🗑
|
||||
| show | before responding; opposing party has 14 days unless ct says otherwise;
🗑
|
||||
| show | fed - w/i 21 days after service, strike insuff defense or redundant, immaterial, impertinent matter; CA - any irrelevant, false, improper matter in pleading (30 days)
🗑
|
||||
| show | must contain denials or admissions and any affirm defenses; 21 days after service; counterclaims
🗑
|
||||
| CIV - ANSWER - CA STATE COURTS | show 🗑
|
||||
| CIV - EFFECT OF FAILURE TO ANSWER | show 🗑
|
||||
| show | fed - pleading may be amended once within 21 days of serving it; CA - once before answer or demurrer complaint filed or after demurrer but before hearing on issue raised by demurrer
🗑
|
||||
| show | compulsory (rule 19) - if complete relief cannot be given to existing parties in her absence; disposition in her absence may impair her ability to protect interest in controv.; or absence would expose existing parties to subst risk of double oblig
🗑
|
||||
| CIV - PERMISSIVE JOINDER | show 🗑
|
||||
| show | fed - permit adjud of all claims b/t parties and all claims arising out of single trans; CA - very similar to fed
🗑
|
||||
| CIV - CLASS ACTIONS IN FED COURTS | show 🗑
|
||||
| CIV - DUTY OF DISCLOSURE - DISCOVERY | show 🗑
|
||||
| show | names/addresses/#'s of indiv's likely to have discerable info; copies or desc's of documents & tangible things in disclosing party's poss.; computation of damages claimed; copies of insurance agreements, expert witnesses used at trial
🗑
|
||||
| CIV - SCOPE OF DISCLOSURE AND DISCOVERY - RELEVANCE | show 🗑
|
||||
| CIV - SCOPE OF DISCLOSURE AND DISCOVERY - WORK PRODUCT PROTECTION/PRIVILEGE | show 🗑
|
||||
| show | oral deposition of witness, including party-witness (max 10 in fed); interrogatories (25 max fed; 35 max CA); production of documents/things; phys/mental exams
🗑
|
||||
| show | violation of order to compel; failure to attend depo or provide ANY answers - immediate sanctions; failure to disclose w/o subst. justif - automatic sanction
🗑
|
||||
| show | fed Rule 26(f) - planning for discovery; Rule 16(b) scheduling
🗑
|
||||
| show | standard is monetary damages; general damages = foreseeable; special damages = not foreseeable, must be specially pleaded; must be causal, foreseeable, certain
🗑
|
||||
| REM - TORT REMEDIES - NOMINAL DAMAGES | show 🗑
|
||||
| show | for willful, wanton, malicious conduct; intent. torts - punitive may be awarded; negligence - usually not; sales of corp. stock - possible; cannot be grossly excessive
🗑
|
||||
| REM - TORT REMEDIES - RULE OF THUMB FOR CALCULATING PUNITIVE DAMAGES | show 🗑
|
||||
| REM - TORT REMEDIES - ATTORNEYS' FEES | show 🗑
|
||||
| show | look to whether D wrongfully obtained benefit retention of which would result in D's unjust enrichment
🗑
|
||||
| REM - REST. REMEDIES - REPLEVIN | show 🗑
|
||||
| show | where D wrongfully in possession of P's real property, plaintiff may bring action at law to have possession restored to him
🗑
|
||||
| show | title held by D; unjust enrichment; inadequacy of legal remedy
🗑
|
||||
| show | equitable defenses (laches, unclean hands); transfer to bona fide purchaser
🗑
|
||||
| show | once imposed on D's property, iien can be foreclosed and property sold to satisfy P's claim
🗑
|
||||
| show | identification of tort critically important; inadequacy of legal remedy;
🗑
|
||||
| show | money damages inadequate; damages too speculative; multiplicity of suits; irreparable injury; prospective tort
🗑
|
||||
| show | decree must be practical to enforce
🗑
|
||||
| show | strict (minority) view - refuse to balance hardships; liberal (majority) view - if harm to P does not outweigh harm to D or to public, P will be left to remedy of damages
🗑
|
||||
| show | laches - unrsbl delay asserting equitable claim, prejudice to other party; unclean hands - party seeking relief must not himself have been guilty of wrongful conduct with respect to transaction or subj of suit; interference w/ freedom of speech;
🗑
|
||||
| REM - INJUNCTIVE RELIEF - INTERLOCUTORY INJUNCTIONS | show 🗑
|
||||
| show | must generally show irreparable injury and likelihood of prevailing on merits; notice to D for prelim, not necessarily for TRO
🗑
|
||||
| show | damages; rest - quasi contract, constructive trust, equitable lien
🗑
|
||||
| REM - SPECIFIC TORT REMS - DESTRUCTION OF CHATTELS | show 🗑
|
||||
| REM - SPECIFIC TORT REMS - INJURY TO CHATTELS | show 🗑
|
||||
| REM - SPECIFIC TORT REMS - DISPOSSESSION OF CHATTELS | show 🗑
|
||||
| REM - SPECIFIC TORT REMS - TRESPASS TO LAND | show 🗑
|
||||
| REM - SPECIFIC TORT REMS - TRESPASS CAUSING SEVERANCE | show 🗑
|
||||
| show | ejectment - must prove right to possession and wrongful withholding; mesne damages - rental value for period land occupied by trespasser (improvements set off against mesne)
🗑
|
||||
| REM - SPECIFIC TORT REMS - ENCROACHMENTS | show 🗑
|
||||
| show | dest of buildings - value @ time of dest; damage to buildings - cost of repair + loss of use; dest of trees/crops - diminution in value of realty or by separately valuing crops/trees;
🗑
|
||||
| REM - SPECIFIC TORT REMS - DESTRUCTION OR INTERFERENCE W/ EASEMENTS | show 🗑
|
||||
| REM - SPECIFIC TORT REMS - WASTE | show 🗑
|
||||
| REM - SPECIFIC TORT REMS - NUISANCE | show 🗑
|
||||
| show | no rest.; injunction rarely sought; damages: economic losses (special damages) such as medical expenses, loss of earnings; noneconomic damages (general damages) such as pain & suffering
🗑
|
||||
| REM - SPECIFIC TORT REMS - DEFAMATION | show 🗑
|
||||
| REM - SPECIFIC TORT REMS - PRIVACY | show 🗑
|
||||
| show | damages - benefit of bargain or out of pocket measure; rest - rescission; const trust
🗑
|
||||
| REM - SPECIFIC TORT REMS - BUSINESS TORTS - INDUCING BREACH | show 🗑
|
||||
| REM - CONTRACT REMS - COMPENSATORY DAMAGES | show 🗑
|
||||
| show | D receives benefit pursuant to unenforceable K; grounds: by mistake, prior to material breach of K, pursuant to perf of unenforc K
🗑
|
||||
| show | rec against breaching party - value of perf; by breaching party - benefit conferred in excess of damages suffered as result of breach
🗑
|
||||
| REM - CONTRACT REMS - SPECIFIC PERFORMANCE | show 🗑
|
||||
| show | laches; unclean hands; hardship - inadequacy of consideration + marked inequality + unfair advantage
🗑
|
||||
| REM - CONTRACT REMS - RESCISSION | show 🗑
|
||||
| REM - CONTRACT REMS - REFORMATION | show 🗑
|
||||
| WILL - CP - RIGHT TO DECEDENT'S CP | show 🗑
|
||||
| WILL - CP - RIGHT TO DECEDENT'S QUASI CP | show 🗑
|
||||
| show | takes 1/3 of sp if decedent survived by more than one kid or one kid and issue of one or more dead kids or issue of 2 or more dead kids; takes 1/2 if decedent survived by one kid or issue of dead kid or no issue but parent or issue of parent; all if none
🗑
|
||||
| show | to issue - (lineal descendents) equal degree: per capita, unequal degree: per capita with right of representation (aka division into equal shares), happens at level of highest surviving issues (unless "pure per stirpes")
🗑
|
||||
| show | to parents; then to issue of parents; then to grandparents or their issue; then to issue of predeceased spouse or domestic partner; then to next of kin; then to parents of predeceased spouse or partner or their issue; then escheats to state
🗑
|
||||
| show | passes to heirs of previously deceased spouse or domestic partner
🗑
|
||||
| show | if it cannot be established by clear and convincing evidence that a person who would otherwise be an heir has survived the decedent by 120 hours for purposes of intestate succession it is deemed that the person failed to survive decedent
🗑
|
||||
| WILL - DISCLAIMERS | show 🗑
|
||||
| show | must be w/i 9 months of later of death or vesting of interest
🗑
|
||||
| show | relatives of decedent conceived before the decedent's death but born thereafter inherit as if they had been born in the lifetime of the decedent
🗑
|
||||
| WILL - POSTHUMOUSLY BORN CHILD | show 🗑
|
||||
| show | inherit from adoptive parents same as natural child; do not inherit from natural parents;
🗑
|
||||
| WILL - STEPCHILDREN AND FOSTER CHILDREN | show 🗑
|
||||
| show | recgonized as heirs of mothers in all states; most states permit inheritance from father if paternity established through subsequent marriage, paternity test; statutes permitting inheritance only from mother unconstitutional
🗑
|
||||
| WILL - RELATIVES OF HALF BLOOD | show 🗑
|
||||
| show | instrument must either dispose of property, appoint an executor, or revoke another instrument; will cannot serve solely to disinherit an heir (to do so, must give all property to other persons)
🗑
|
||||
| show | must be 18 and of sound mind
🗑
|
||||
| show | testator's separate property; one-half community property interest; one-half quasi community property interest
🗑
|
||||
| show | for an alleged will to be valid, the testator must have had the intention to make the particular instrument her will
🗑
|
||||
| show | a will may be made expressly conditional upon the happening of a certain event; if the condition does not happen, the will is not given any effect
🗑
|
||||
| show | except as provided for holo. wills, must: be in writing, be signed by the testator, signing must occur in the joint presence of at least 2 witnesses who sign the instrument during the testator's lifetime, witnesses must understand as will
🗑
|
||||
| show | competency; if beneficial interest, witness disqualified; CA rule - presumption against devise to witness, failure to rebut presum. means witness takes no more than intestate share;
🗑
|
||||
| show | valid if signature and material provisions in handwriting of testator; must still have testamentary capacity;
🗑
|
||||
| WILL - CA STATUTORY WILL | show 🗑
|
||||
| show | in writing; testator must declare presence of 2 witnesses and person authorized to act in connection with international wills; testator signs; witnesses sign
🗑
|
||||
| WILL - REVOCATION OF WILLS | show 🗑
|
||||
| show | express - same formalities or holographic will can revoke prior; implied - by subsequent instrument
🗑
|
||||
| show | burned, torn, canceled, obliterated, destroyed; must be simultaneous present intent to revoke; if 3rd party, must act in presence of testator and at his direction
🗑
|
||||
| show | burning - mere singing ok; tearing, obliteration, cancellation - should be through material part of provision
🗑
|
||||
| WILL - INCREASE BY PHYSICAL ACT | show 🗑
|
||||
| show | subsequent marriage or domestic part - common law: woman's will revoked at marriage, needed consent of husband for new, man's revoked at marriage + kids; modern: prior will revoked on marriage;
🗑
|
||||
| WILL - REVOCATION BY OPERATION OF LAW - DISSOLUTION OR ANNULMENT OF MARRIAGE | show 🗑
|
||||
| WILL - DEPENDENT RELATIVE REVOCATION - MISTAKEN BELIEF | show 🗑
|
||||
| WILL - DEPENDENT RELATIVE REVOCATION - PHYSICAL ACT | show 🗑
|
||||
| WILL - REVIVAL OF REVOKED WILLS - WILL 1 REVOKED, THEN WILL 2 (WHICH EXPRESSLY OR IMPLIEDLY REVOKES WILL 1) REVOKED | show 🗑
|
||||
| WILL - COMPONENTS OF A WILL - INTEGRATION | show 🗑
|
||||
| show | testamentary instrument executed subsequent to the execution of a will, and it is ordinarily intended to modify, alter, or expand the will in some fashion; must be executed with same formalities as will; will deemed to be "republished" with codicil
🗑
|
||||
| show | CA - writing in existence when will executed may be incorporated by reference if language of will manifests this intent and describes the writing sufficiently to permit identification
🗑
|
||||
| WILL - ACTS OF INDEPENDENT SIGNIFICANCE | show 🗑
|
||||
| WILL - WILL SUBSTITUTES | show 🗑
|
||||
| show | if K requirements met, K to make, not to make, or not to revoke will is valid; must be in writing; joint will revocable by either, doesn't affect other;
🗑
|
||||
| WILL - SURVIVING SPOUSE'S OR DOMESTIC PARTNER'S WAIVER OF RIGHTS | show 🗑
|
||||
| WILL - ENFORCEABILITY OF WAIVER | show 🗑
|
||||
| WILL - TESTAMENTARY CAPACITY | show 🗑
|
||||
| show | one to which testator adheres irrationally against evidence and reason to the contrary; may serve to invalidate portion or all of will
🗑
|
||||
| show | will invalid if obtained through undue influence (mental or physical coercion); req: T susceptible to undue influence, influencer had opportunity and disposition to influence, provisions unnatural
🗑
|
||||
| show | on transfer to drafter or other disqualified person (fid.relationship, care custodian)
🗑
|
||||
| show | requires that the testator be willfully deceived as to the character or content of an instrument, as to extrinsic facts that would induce the will or a part. disposition, or material facts
🗑
|
||||
| show | execution of wrong document - cannot be probated; mistake as to contents - probate may be denied mistaken portion; mistake in inducement - no relief unless mistake on face of will
🗑
|
||||
| show | extrin.evid admissible to explain any ambiguity
🗑
|
||||
| show | slayers (CA: feloniously and intentionally); persons who abuse or neglect elder or dependent adults; aliens;
🗑
|
||||
| WILL - WILL CONTESTS | show 🗑
|
Review the information in the table. When you are ready to quiz yourself you can hide individual columns or the entire table. Then you can click on the empty cells to reveal the answer. Try to recall what will be displayed before clicking the empty cell.
To hide a column, click on the column name.
To hide the entire table, click on the "Hide All" button.
You may also shuffle the rows of the table by clicking on the "Shuffle" button.
Or sort by any of the columns using the down arrow next to any column heading.
If you know all the data on any row, you can temporarily remove it by tapping the trash can to the right of the row.
To hide a column, click on the column name.
To hide the entire table, click on the "Hide All" button.
You may also shuffle the rows of the table by clicking on the "Shuffle" button.
Or sort by any of the columns using the down arrow next to any column heading.
If you know all the data on any row, you can temporarily remove it by tapping the trash can to the right of the row.
Embed Code - If you would like this activity on your web page, copy the script below and paste it into your web page.
Normal Size Small Size show me how
Normal Size Small Size show me how
Created by:
m1chaelk1m
Popular Law sets