MBE Strategies & Tactics Notes
a. b.
a. b. c. d. e. f. g. h. i. j. 3.
You’ You’rre ask asked ed about bout the the va validi liditty of of a sta statute tute;; or or You’re You’re asked asked to identi identify fy the the best best or worst worst argume argument nt for for uphold upholding ing or overtu overturni rning ng a statut statute. e. ivil ights lections (Congressional) dmiralty axation minent Domain pending/Taxing for General Welfare efense nterstate Commerce itizenship xternal/Foreign Affairs – applies to federal government, source.
a.
b.
c.
d.
1) Channels of interstate commerce, rce, 2) Inst Instrrumen umenta tali liti ties es of inter nterst stat ate e com comm merce erce,, 3) Arti rticles cles movi moving ng in int inter ersstate tate comme ommerrce, ce, an and 4) Acti Activi viti ties es “sub “subst stan anti tial ally ly affe affect ctin ing” g” comm commer erce ce.. Most Most CC ques questi tion onss on MBE invo involv lve e the sale sale or dist distri ribu buti tion on of an item item,, usua usuall lly y in a comm commer erci cial al setting. But if activity is non-commercial, there’s stricter test; you must find a “pretty obvious connection” between the activity and interstate commerce. Doesn’t apply to use of item once it’s left the stream of interstate commerce. If the the acti activit vity y being being regula regulated ted involv involves es u use se of of an item item after after it’s it’s finis finished hed trav traveli eling ng thro through ugh inters interstat tate e commerce, or if the activity being regulated is non-commercial, the statute under CC may have gone too far. While While CC is source of federal federal power, it’s also a limitation limitation on the states’ power. power. Only time you analyze state statutes’ impact on interstate commerce under CC is when there’s no relevant federal legislation. Then you have to determine determine if a state regulation unduly burdens interstate interstate commerce. If federal legislation exists, then analysis analysis falls under Supremacy Clause. If there’s no direct conflict between state and federal law, you have to determine whether Congress intended the federal law to occupy occupy the entire entire field by lookin looking g at 4 factor factors: s: 1) 2) 3)
4. 5.
Whet Whethe herr the the subj subjec ectt matt matter er is is trad tradit itio iona nally lly clas classi sifi fied ed as as loca locall or fed feder eral al;; How perv ervasi asive the fede federral reg regulat ulatio ion n is; How simil similar ar the the sta state te and and fede federal ral laws laws are are (the (the more more they they coinci coincide de the the more more likel likely y it it is is that that federal law was intended to supersede state law); and 4) Wheth hether er ther there’ e’ss a nee need d for for unif unifor orm m fed feder eral al regu regula lati tion on.. – gives Congress power to tax and spend for general welfare. Congress doesn’t have power to enact any legislation that promotes promotes the general welfare welfare of the nation. Tax and spend, that’s it. it. States have power to legislate for general welfare but only under police power. No federal police power. – prohibits states from passing any law which impairs the obligations of contracts. Usually correctly applied when state seems to be trying to escape its own obligation. As prerequisite for protection under this clause, the contract must have existed when statute was a. passed. States can regulate regulate contract formation prospectively. prospectively. If contract in question predates offending statute, KC is relevant. If postdated, then it’s irrelevant. b. c. Not Not all all cont contrract impa impair irm ment ents are are inv inva alid lid und under er KC. KC. d.
1) 2)
3)
Serv Serve e an an im import portan antt and and legi legiti tim mate ate pub publi licc int inter eres estt and and Are Are nec neces essa sary ry to achi achiev eve e tha thatt pub publi licc int inter eres est; t; and and IF IF The contract impairment is reasonable under the circumstances.
6. a. 1)
2) 3)
Voids state enactments which clearly infringe on the privileges of national citizenship. Protection is limited to the fundamental rights shared by all citizens, such as the right to travel freely from state to state, to petition Congress for redress of grievances, to vote for national officers, to assemble peacefully and to discuss matters of national legislation. Reliance on this clause is usually wrong answer on MBE because the same rights protected are also protected by DPC and EPC of the 14 thA both of which are stronger arguments. argume nts. th If you see 14 A PIC as MBE choice for invalidating state statute, most likely likely wrong answer.
b. 1)
2)
3)
Only PI PIC wi with so some ef effect. Prevents states from discriminating against out-of-state citizens and residents in matters concerning “essential activities” (i.e. jobs, owning property) and “basic rights” (i.e. medical care, care, court court access), access), unless unless the discriminati discrimination on is closely related to a substanti substantial al state state purposes (i.e. protecting state’s natural resources) and there are no less restrictive means available to achieve the purpose. Doesn’t protect corporations or aliens, just out-of-state, human US citizens.
7. a. b.
Forbid Forbidss most most action actionss in in feder federal al cour courts ts by privat private e citi citizen zenss for for dam damage agess again against st the state. state. 1) 2)
c.
Suits uits by fede ederal ral go govern vernm ment ent ag again ainst state tates; s; or or Suit Suitss b by y any anyon one e aga again inst st stat state e sub subdi divi visi sion onss (co (coun unti ties es,, cit citie ies) s);; or or Equity suits in federal court where state official violated ∏’s federal constitutional rights; 3) 4) Suit Suitss agai agains nstt a stat state e offi offici cial al for for mon money ey dam damag ages es as as long long as as dama damage gess are are to be be paid paid out out of of the official’s own pocket. Congress may not abrogate 11thA except where it passes statute giving private citizens the right to sue a state state under the post-C post-Civi ivill War War Amend Amendmen ments. ts. Limi Limited ted to measur measures es that that are fitted fitted to remedying of actual constitutional violations by the states.
8. a.
b. c. a.
b.
c.
d. e.
Outl Outlaw awss any any “badg badge es or or inc incid ide ents” nts” of slave lavery ry.. Gives Congress power to prohibit virtually any discrimination against blacks, or whites (and it may cover other kinds of discrimination). 13th A is only amendment explicitly limiting private private acts by individuals – no state action is required. required. Cong Congre ress ss can can only only act act pursu pursuan antt to its its enum enumer erat ated ed powe powers rs unde underr Cons Consti titu tuti tion on.. Thus Thus any vali valid d federal statute must be rationally related to an enumerated power, or it must be necessary and proper to effectuate an enumerated power. Congre Congress ss has has a almo lmost st exclu exclusiv sive e power power over over feder federall ally-o y-owne wned d lands lands under under Prop Propert erty y Claus Clause; e; it it contr controls ols Bankruptcy. Congress has state-like powers over DC (can regulate marriages, educations, and other state-oriented areas). Any Any vali valid d feder federal al law law will will have have to to be rati ration onal ally ly rela relate ted d to one one of the the CREAT CREATES ES DICE DICE powe powers rs,, or necessary and proper to effectuate one of them. If Congress tries to legislate beyond powers, it violates 10 th Amendment (which reserves to the states and people those powers not expressly delegated to Congress, nor prohibited to the states). No fede federa rall poli police ce power power.. Cong Congre ress ss can can use use its its comm commer erce ce power power for for poli police ce-l -lik ike e acti activi viti ties es like like prohibiting interstate transportation of stolen property, misbranded goods, lottery tickets, etc.
a. 1) 2) 3)
Law Law must must be be ena enact cted ed wit withi hin n stat state’ e’ss powe powers rs (i. (i.e. e. pol polic ice e pow power); er); It must must not not vio viola late te anyo anyone ne’s ’s Cons Consti titu tuti tion onal al righ rights ts;; and and It mu must not not un unduly duly burd burden en inte nterst rstate ate com comm merce. rce.
b.
Stat State e polic police e power power is mos mostt commo common n sourc source e of stat state e autho authori rity ty;; state state legi legisl slat atio ion n is enac enacte ted d under under police powers if it involves public health, safety, welfare, or morals. Very broad power.
a.
Test to determine which one applies – see if a classification is built into the statute (i.e. residents v. non-residen non-residents, ts, men v. women, legitimat legitimate e children children v. illegitim illegitimate ate children, etc). If there’s there’s a classification, then EPC applies. If no classification, then DP.
b.
1) 2) 3)
4) 5) 6)
If statute is a federal statute, there’s no EPC problem because EPC doesn’t apply to federal government EPC on only ap applies to to st state ac action. If a sta state te or or fe fede dera rall gove govern rnme ment nt is ena enact ctin ing g a law law then then you you hav have e stat state e acti action on.. If priv privat ate e individual or group of individuals is involved, you need to look for 2 things – 1) is there a nexus of governmen governmentt involveme involvement nt (whether (whether governme government nt encourages encourages or benefits benefits from private conduct), 2) Does private conduct have public function that’s normally exclusively reserved to the state? If yes to either, then then state action. – In order for statute to be held invalid, it must (1) be discriminatory on its face; or (2) be facially neutral but unequally administered; or (3) have the intent to discriminate. Stat Statut ute e won’ won’tt be fou found nd inv inval alid id if if disc discri rimi mina nati tion on resu result ltss mere merely ly from from its its imp impac act. t. If you’ you’re re face faced d with with newly newly enac enacted ted statut statute e but but aren aren’t ’t told told anyt anythin hing g about about its backgr backgroun ound, d, itit can be held invalid only because it’s invalid on its face.
c. 1)
2 types of DP problems:
a)
b)
– Addresses fairness of a procedure used to deprive someone of significant interest, usually in property but also in life or liberty. Ask if a notice and a hearing are necessary necessary when a right is removed. removed. There must be a law, law, whether federal, state, or local, under which person has a legitimate property interest. – when state action substantially interferes with a fundamental right. Must meet SS. SS. If right isn’t fundamental, fundamental, must meet RB. Only Only person personal al rights rights are consid considere ered d fundam fundament ental al under under SDP – voting voting (i) st restrictions on age, residency, and citizenship are valid. 1 A rights, right of privacy privacy (conception (conception,, procreati procreation, on, marriage, marriage, abortion), abortion), and the right right to interstate (and probably international) travel. (ii) (ii) MBE MBE like likess to ask ask you you in SDP SDP prob proble lems ms who who has has the the bur burde den n of per persu suas asio ion. n. If the impaired right is fundamental, then burden is on government to defend defend its action. If right is not fundamental, fundamental, then burden burden is on person attacking government action.
d. 1) a)
c)
Applies only to: (i) (i) Susp Suspec ectt cla class ssif ific icat atio ions ns (ba (base sed d on race race or alie aliena nage ge); ); or or (ii) (ii) Clas Classi sifi fica cati tion on rel relat ates es to to who who may may exe exerc rcis ise e a fun funda dame ment ntal al rig right ht.. Fundamental rights: (i) Freedom of association; (ii) Interstate tr travel; (iii (iii)) Priv Privac acy y (mar (marri riag age, e, proc procre reat atio ion, n, abor aborti tion on); ); (iv) Voting; (v) Freedom of of ex expression; (vi) Freedom of of re religion Must be necessary to promote a compelling governmental interest.
a) b)
Appl Applie iess to to qua quasi si-s -sus uspe pect ct clas classi sifi fica cati tions ons – gen gende derr and and legi legiti tima macy cy.. A law law mus mustt be sub subst stan anti tial ally ly rel relat ated ed to to an imp impor orta tant nt sta state te int inter eres estt to be be vali valid. d.
a)
Appl Applie iess to eve every ryth thin ing g else else.. Pove Povert rty/ y/we weal alth th,, age, age, men menta tall reta retard rdat atio ion, n, etc etc..
b)
2)
3)
b)
12. a. b.
c. d.
e. f. g.
13. of
a.
b. c.
State State needs only RB for discriminatin discriminating g against against non-citizens non-citizens for essential essential state state functions functions – can require police, public school teachers, teachers, probation probation officers, officers, and others be US citizens. – covers freedom of speech, press, assembly, and association. Any statute regulating freedom of speech or association must contain narrow and definite standards. No overbreadth overbreadth or vagueness. If a statute prohibits prohibits not only unprotected unprotected speech but also protected speech, it’s unconstitutionally overbroad. Defam Defamat atio ion, n, obsc obscen enit ity, y, and and fig fight htin ing g wor words ds – not not prot protec ecte ted d spe speec ech. h. – government can prohibit advocacy of illegal conduct if it meets clear and present danger test – if (1) advocacy is intended to produce or incite imminent illegal action and (2) the advocacy is likely to produce or incite such action, it can be prohibited. – governmen governmentt action action that prohibits prohibits speech speech before it takes takes place. place. Presumpti Presumptively vely invalid due to vagueness or placing too much discretion in public officials, i.e. those granting licenses licenses to hold demonstratio demonstrations ns (apply TPM test). test). Can be valid where the mere existence existence of communication is proven to create some special harm to society, i.e. prohibiting publication of planned army movement in wartime would be valid). – speech speech whose primary primary goal is a commercia commerciall transacti transaction. on. Somewhat Somewhat protected, but subject to greater regulation than non-commercial speech, i.e. it’s permissible to prohibit misleading ads. – time place, and manger regulations. If you determine that speech in given fact pattern is constitutionally protected, don’t stop there. It’s still subject to TPM regulations. – to be valid, a TPM regulation: Must be neutral as to content of speech, both on its face and as as applied. Content-neutral. 1) 2) Must Mu st furth further er sign signif ific ican antt gove govern rnme ment nt inter interes estt not not capa capabl ble e of acco accomp mpli lish shme ment nt by less less restrictive means; and 3) Must Mu st all allow ow for for ade adequ quat ate e alt alter erna nati tive ve cha chann nnel elss for for com commu muni nica cati tion on inf info. o. st – under 1 A government can neither outlaw or seriously burden a person’s pursuit relig religion ion ( ) nor endorse endorse or suppor supportt a partic particula ularr religi religion on ( ). Government has to be religion neutral. Any government action must conform with following Lemon Lemon test: Government action must have a secular (non-religious) purpose; 1) Primary or principal effect of action must not be the advancement of religion; and 2) Government action must not foster excessive government entanglement with religion. 3) Government can’t prohibit you from believing in a certain religion but may burden the practice of your beliefs if burden meets the Lemon test. 1st A only protects those beliefs paralleling traditional religious views, so mere political or philosophical view won’t be protected, while something as bizarre as devil worship will be. Court can’t investigate investigate the reas reasonable onableness ness of your religious religious views, views, but can determine determine how important important a particular practice is to the exercise of religion.
d. 1)
14.
Ther There’ e’ss pote potent ntia iall EC probl problem em any time time gover governm nmen entt help helpss out out priv privat ate, e, relig religio ious us schoo schools ls even if that help is on same scale as help given to public schools. 2 guidelines – (1) aid must be for secular instruction, and (2) aid to post-secondary 2) schools (i.e. colleges) is more likely to be upheld than aid to elementary or secondary schools because there’s less risk of religious indoctrination of college students. 3) Wher Where e any any kind kind of of gove govern rnme ment nt aid aid to to a paro paroch chia iall scho school ol wou would ld req requi uire re tha thatt gove govern rnme ment nt keep close surveillance on how the funds are dispensed, i.e. grants for salaries of teachers of secular subjects only, the entanglement required to monitor such a program which would otherwise be constitutional, is impermissible. – prerequisite for every case. If P doesn’t have it, doesn’t doesn’t matter how legitimate legitimate his claim is, the case must be dismissed. Standing exists only if the action challenged challenged has caused, or is imminently likely to to cause, an injury to the party seeking review. – taxpa taxpayer yerss gener generall ally y don’t don’t have have standi standing, ng, but there there is very very narro narrow w a. exception which only applies to cases involving religion based on EC. Federal taxpayer can gain standing to challenge if he can show 2 things: (1) that federal tax was invalidly applied to him,
15.
16.
17.
making injury personal, or (2) that expenditures in question both exceeded a specific constitutional limitation on the taxing and spending powers, AND they were part of federal spending program. This restricts taxpayer standing to religion cases. When ∏ has standing to assert someone else’s constitutional rights, this is possible only where ∏ is b. injured because someone else’s constitutional rights have been violated, or where those who are injured can’t assert their own rights. i.e. NAACP would have standing to file on members’ behalf so member memberss wouldn wouldn’t ’t have have to reveal reveal their their ident identiti ities es in case case about about compel compelling ling produc productio tion n of membership lists. – a. Cong Congre ress ss has has power power to to creat create e court courtss infer inferio iorr to SCOT SCOTUS US and and can con contr trol ol thei theirr juris jurisdi dict ctio ion n as long long as it stays within boundarie boundariess of Article Article III. Congress Congress can also control appellate appellate jurisdicti jurisdiction on of SCOTUS, SCOTUS, i.e. could stop SCOTUS from hearing abortion abortion case. Only thing thing it couldn’t do is monkey monkey with SCOTUS’s original jurisdiction (where an ambassador, a state, or US itself is a party.) Basis of federal court jurisdiction – diversity jurisdiction (cases between citizens of different states b. with with at least least $75K $75K in contro controver versy) sy),, federa federall questi question on jurisd jurisdict iction ion (if case case arises arises under under federa federall statute, treaty, or Constitution, federal court has has jurisdiction). Cases between state and and citizen of another state. – (1) whether source of case is federal court or c. highest state court, and (2) whether SCOTUS review is sought by appeal (review as of right) or by writ of certiorari (discretionary (discretionary review). To get to SCOTUS at all, state court court case must address a federal question. If state case rests on adequate and independent state grounds, even if it also addresses a federal question, SCOTUS won’t review the case. – case casess wher where e stat state e cour courtt held held fede federa rall 1) statu statute/ te/tre treaty aty invali invalid d or held held state state statu statute te valid valid in face face of claim claim of invali invalidit dity y under under Constitution or federal law. – cases where state court addressed addressed 2) constitutional or federal statutory claim (where there was challenge to constitutionality of a federal law, a challenge to a state statute on grounds of being unconstitutional or contrary to federal law, or any claim asserted under constitution or federal law). – cases where lower federal court held federal 3) statute invalid in civil action where US is a party; or found a state statute invalid under federal law or constitution. – any case, civil or criminal, regardless 4) of whether constitutional issue is involved. Federal courts won’t address political questions – issues Constitution commits to other government d. branches and issues judicial process can’t resolve, i.e. foreign relations because they are domain of President and Congress, so a lawsuit by any person or organization which challenged handling of foreign affairs won’t be heard by federal court. e. Fede Federa rall court courtss won’ won’tt issu issue e advi adviso sory ry opi opini nion onss – one one that that ans answe wers rs a lega legall ques questi tion on whe when n none none of partie partiess before before court court has suffered suffered or will will face face speci specific fic injury injury relate related d to it. Federa Federall court court has jurisdiction only over cases and controversies. controversies. Federal courts won’t hear claims that are moot or unripe. Case is if it’s been resolved or f. rendered academic before it reaches the court, but if an event is recurring but will always evade review, review, court will address address issue anyway. anyway. Class actions actions can proceed proceed as long as any of the claims remains valid even even if the claim of of the class rep becomes becomes moot. Case is if doesn’t present immediate threat of harm. – Congre Congress ss ma makes kes the the laws, laws, Presi Presiden dentt execut executes es the law, law, and the judici judiciary ary interprets the laws. MBE questions where President attempts attempts to impound funds appropriated by Congress – remember that as long as Congress specifies that the funds are to be spent, executive branch must spend the funds, if not there’s separation of powers violation. – law, either federal or state, that punishes without a trial, past or future conduct of specific individuals or named groups. groups. Impermissible. Hallmark of bill of attainder attainder – punishment punishment on basis of political beliefs or activities.
a.
If asked about validity of law, first check to see if it’s a federal or state law.
b. c. d.
e.
a. b.
c. d. e. f. g.
h. a.
If asked about P’s standing, ignore the issues – see if the P has standing to bring claim, not whether his claim has merit. P must either have suffered or be imminently likely to suffer an injury due to the challenged action. Avoid Avoid answ answers ers that that say say a statut statute e is consti constitut tution ional al beca because use the P’s inter interest est is a privi privileg lege e not not a right right.. Always incorrect. Con law on MBE MBE fre freque quentl ntly y gives gives 2 quest question ionss on sam same e fact fact patt pattern ern,, one one askin asking g stron stronges gestt argum argument ent for holding holding statute statute constituti constitutional, onal, and the other asking asking strongest strongest argument argument for striking striking down statute. May help to look for common issue in answer choices – strongest strongest argument for one side is likely to be weakest argument for other. If you’re faced with purely economic or social statute, remember there’s no DP or EPC problem because statute will be subject only to the RB test.
∏’s ∏’s or or ∆’s ∆’s best est arg argum ume ent or th theory eory for for rec recov over ery y How How con contr trac actt ter terms ms ssho houl uld d be be con const stru rued ed (i. (i.e. e. as as con condi diti tion ons) s) How to characterize facts (i.e. if certain acts constitute offer, acceptance, contract) Whether ∏ will succeed Legal ef effect of of additional fa facts If cour courtt de decid cides for for a speci pecifi fied ed part party y, the the reas reason on why How How a goa goall coul could d be acco accom mplis plishe hed d (i.e (i.e.. offe offerr acce accept pted ed or or rev revok oked ed)) Which of 2 or 3 alternatives are correct, or would influence outcome of case. Common Law Modifications of Ks require consideration.
b.
An offer can be made irrevocable only with consideration – offeree must pay for irrevocability and thus create an option K. Reasonable delay is only minor breach unless K provides time is of the essence or unless breach breaching ing party party knew knew (when (when K was create created) d) of some some extrao extraordi rdinar nary y fact fact which which made made deadline essential. If time is of the essence, any delay is major breach.
Minor breach – other party must perform and sue for damages
Major breach – other party doesn’t have to perform and can still sue for damages.
U CC
Modifications of Ks require good faith. Merchants can make irrevocable or “firm” offers without consideration as long as offers are in writing and signed. Perfect tender rule – every deadline must be met precisely and any delay is a major breach. Exception – with notice to buyer, seller can cure defective performance if there’s time left for performanc performance. e. Even if time for performanc performance e has passed, seller seller can still cure if buyer rejected nonconforming tender that seller had reasonable grounds to believe buyer would accept.
a. b. 4.
Unilateral – offer for unilateral K seeks performance in return, not a promise. Bilateral – offer for bilateral K seeks promise in return, not performance. – modern view is that offeree need only complete performance with knowledge of a reward offer (or public offer of any kind) to earn the reward. Traditional rule is that public offer must have provoked offeree’s performance. Reward offer must be seeking unilateral contract.
a.
Any enforc enforceab eable le agreem agreement ent requir requires es consid considera eratio tion n or or a substi substitut tute e (i.e. (i.e. promis promissor sory y esto estoppe ppel). l).
b. c. d.
– bargained-for exchange, plus either detriment to the promisee or benefit to the promisor, promisor, or typically typically both. Both parties parties must view the return promise promise (or performance) performance) as the “price” of the contract. If they don’t, there’s no consideration. consideration. – Promises to make a gift is unenforceable. Best way to distinguish gift from bargain is to look at whether whether or not promisor promisor is getting getting something something in return. return. If not, it’s gift and promise promise is unenforceable unless promissory estoppel applies. an inva invali lid d clai claim m can can stil stilll be cons consid ider erat atio ion n if 2 requ requir irem emen ents ts are are met: et: (reasonableness and good faith) Reasonable person (person surrendering the claim) could believe the claim is well-founded (doesn’t matter what other party believes, only belief of surrendering person matters); and It can be pursued in good faith. Consid Considera eratio tion n in in uni unilat latera erall Ks Ks – offere offeree’s e’s perfor performan mance ce is is cons conside iderat ration ion for the agreem agreement ent.. – triggered by a gratuitous promise which is likely to, and does, induce the promi promisee see’s ’s relianc reliance. e. Substi Substitut tute e for conside considerat ration ion.. Lack Lack of an otherwi otherwise se enforce enforceabl able e K is prerequisite for promissory estoppel. – requires requires no enforceab enforceable le contract. contract. Courts apply this if ∏ has conferred conferred benefit benefit on ∆ and ∆ would be unjustly enriched enriched if he were allowed to retain retain benefit without paying paying for it. There must be unjust enrichment enrichment and no enforceable K. Can’t be unjust enrichment enrichment if performing party suffered no detriment.
e.
f. g.
a.
Cond Condit itio ion n – an even event, t, othe otherr than than mere mere pass passag age e of time time,, that that trig trigge gers rs,, limit limits, s, or ext extin ingu guis ishe hess an absolute duty to perform on behalf of one party to K. b. 2 wa ways to to ca categorize co conditions: How the condition came about – express, implied, impli ed, and constructive – parties parties explici explicitly tly includ included ed it in the K. Mus Mustt be strictl strictly y 1) complied with. Substantial performance won’t suffice. If there’s there’s substantial, substantial, but not complete, performance, the nonbreaching party doesn’t have to perform at all. – Substantial Substantial performance is sufficient. sufficient. If performance performance isn’t 2) complete, other party will be able to recover damages but still has to perform. – Substantial Substantial performance performance is sufficient. If performance performance 3) isn’t complete, other party will be able to recover damages but still has to perform. Time of performance – Event or act which must occur first to trigger part’s 1) absolute absolute duty of performance. performance. Is there an enforceable enforceable duty before before the required event happens? happens? If NO, then that’s condition condition precedent. I.e. If Yankees make it to World Series, I’ll buy your your tickets for $500. Yankees making it to World World Series is condition precedent to my duty to perform (buy tickets for $500) as well as your duty to tender tickets. – Exis Exists ts wher where e each each part party’ y’ss duty duty to perf perfor orm m is 2) conditioned on the other other party’s performance. performance. I.e. Laurel offers to sell sell Hardy his piano for $200, Hardy agrees. Hardy’s tendering the piano piano is condition to Laurel’s Laurel’s duty to pay, and Laurel’s tendering $200 is condition to Hardy’s duty to tender piano, piano, so concurrent concurrent conditions. conditions. Concurrent Concurrent condition conditionss have to be capable of simult simultane aneous ous perfor performan mance. ce. Howeve However, r, if there’ there’ss agreem agreement ent to whitew whitewash ash someone’s fence for $100, this can’t be concurrent condition since they can’t be done at same time – it’ll take awhile to whitewash fence and this performance would precede duty to pay. – Discharges Discharges previously absolute duty to perform. I.e. 3) insurance contract, where the insurance company’s duty to perform is discharged if the insured doesn’t doesn’t sue within say 6 months months of an accident. Very rare. – some MBE questions require you to interpret interpret K provisions. Don’t imply promises promises where parties parties have expressly expressly dealt with with set of circumstan circumstances ces in the K. If parties addresse addressed d a situation, situation, or determined who should bear the risk of a certain kind of loss, court won’t look outside K. – if K falls within SoF categories it must be in writing to be enforceable.
7. 8.
Contracts of Suretyship (i.e. K to answer for another’s debt or default – guarantee of performance); (if main purpose of surety is to further own interest, promise doesn’t fall within SoF) Ks for sale of an interest in land (which includes leases of one year or longer); Ks for sale of goods worth more than $500 (UCC) (except specially specially manufactured manufactured goods, or where there’s partial performance); Ks which can’t be performed within a year; Ks for sale of securities; Ks for sale of person personal al prope property rty other than goods with value of more more than than $5,000 $5,000 (regardless of cost), i.e. royalty rights (UCC). Ks in consideration of marriage – Marriage
– Personal property over $5,000 value – Suretyship
– Interest in land;
– Goods more than $500;
– Not performable within a year; – Securities. Nee Need to to kn know when when nee need fo for wri writi ting ng will be excu xcused. sed.
c.
1) 2) 3)
4) 5)
Full performance b by y both sides; Seller conve nveys property to buye uyer; Buye Buyerr pays pays all all or part part of the the pur purch chas ase e price price AND AND perfo perform rmss some some act exp expla lain inab able le only by the K’s existence (i.e. constructing buildings on land); Promissory estoppel; Waive aiverr (i.e (i.e.. by not not aff affir irma mati tive vely ly ple plead adin ing g SoF SoF as a defe defens nse) e)..
1)
Where here a tran transa sact ctio ion n in good goodss is invol involve ved, d, part part perf perfor orma manc nce e remo remove vess the the writi riting ng requirement (but only to extent of performance), 2) As does does an admi admiss ssio ion n in in cou court rt by part party y deny denyin ing g the the K’s K’s e exi xist sten ence ce.. 3) Speci pecia ally lly manuf anufac actu ture red d goods oods don don’t requi quire writin iting g once once selle ellerr has has start tarted ed manufacture or made commitments to procure the goods. 4) Lett Letter er of of confi confirm rmati ation on can can sat satis isfy fy SoF SoF ifif tran transa sact ctio ion n is betw betwee een n merc mercha hant nts. s. – regarding Ks of suretyship (where one promises to pay for debts of another); if surety’s main purpose was to further his/her own interest, promise doesn’t fall within SoF. Even Even if K fails fails for noncom noncompli plianc ance e with with SoF, SoF, party party may be entitl entitled ed to quasiquasi-con contra tract ct recovery for reasonable value of his part performance, and to restitution of any other benefits he may have conferred. – if promisee of contractual promise intends that her performance should benefit benefit someone outside outside of K, then other person is called the intended intended third party beneficiar beneficiary. y. Only intended intended beneficiaries beneficiaries have enforceable enforceable rights, not incidental incidental beneficiaries. beneficiaries. Even then, rights aren’t aren’t enforceable until they have vested. Until then, parties to K can modify or even rescind K without regard regard to beneficiar beneficiary. y. Once rights rights vest, any modifica modification tion requires requires beneficiar beneficiary’s y’s consent. consent. Rights Rights can’t vest vest until beneficiar beneficiary y knows about about the K. Before a 3rd party beneficiary finds out about K, it can be modified and rescinded with no regard to beneficiary’s rights. a. Beneficiary’s ri rights vest when: The beneficiary manifests assent to the promise;
9.
Beneficiary sues to enforce the promise; or
Beneficiary justifiably relies on the promise to his detriment.
10.
– need to know what can or can’t be assigned or delegated, and the effect of K prohibitions on assignment and delegation. Assignment – under both common law and UCC, the only rights that CAN’T be assigned are those a. which which would would ma mater terial ially ly change change the other other party party’s ’s duty, duty, risk, risk, or chance chance of receiv receiving ing return return performan performance. ce. That includes includes personal services, services, rights under future contracts, contracts, requirements requirements and output contracts, and assignments contrary to public policy (i.e. government pensions and alimony payments). All other rights can be assigned. Delegation – determining what duties can be delegated is more complicated. Easiest way is with 2 b. tier analysis: Is the duty “impersonal”? “impersonal”? If not, it can’t be delegated. delegated. 1) Impe Impers rson onal al dut duty y is one one in in whic which h the the one one re rece ceiv ivin ing g perf perfor orma manc nce e has has no par parti ticu cula larr inte intere rest st in limi limiti ting ng perfo perform rman ance ce only only to the the one one from from who who he expe expect cted ed performance. 2) Pers Person onal al duti duties es inclu include de serv servic ices es of peopl people e like like lawy lawyer ers, s, docto doctors rs,, arch archit itec ects ts,, and and portrait painters. If duty is impersonal, impersonal, does the delegation delegation materially alter alter performance? If not, it can be delegated. c. K pro prohi hibi biti tion onss on on ass assiignm gnment ents an and de deleg legatio ations ns An “assignment of the contract” impliedly includes a delegation of duties as well, unless circumstances suggest otherwise (i.e. K is only assigned as security for a loan, which would indicate that duties weren’t delegated as part of assignment of K.) Assignment and delegation rules apply when when K contains nothing preventing transfer.
K prohibition throws a wrench into the works but exactly what prohibition does depends on how it’s worded. 1) “Ass “Assig ignm nmen entt of righ rights ts unde underr this this contr contrac actt is prohi prohibi bite ted” d” or simi simila larr lang langua uage ge – assignment is valid. Other party can only sue sue for damages for breach of covenant. covenant. Under UCC assignment of right to receive payment cannot be prohibited, and any prohibition is invalid. “Assignment of rights under this contract is void” or similar language – Assignment 2) is voidable at other other party’s option. Under the UCC, assignment of right right to receive payment cannot be prohibited. 3) The The cont contra ract ct pro prohi hibi bits ts ass assig ignm nmen entt “of the the cont contra ract ct”” – this this bar barss only only del deleg egat atio ion n of duties duties,, not assignm assignment ent of rights rights.. While While such provis provision ionss are upheld, upheld, they’re they’re narrowly construed. – in order to determine if PER bans evidence of contract terms, you have to determine determine if K is “completely “completely integrated”. Under PER, a writing writing that is “completely “completely integrated” cannot be contradicted or supplemented by prior written or oral agreements, or by contemporaneous oral agreements. – parties intended agreement to be a final and complete a. statement of their agreement. b. Need Need to to know know 2 thin things gs – 1) wha whatt PER PER exce except ptio ions ns are are,, and 2) 2) what what hap happe pens ns if if agre agreem emen entt isn’ isn’tt completely integrated. – PER doesn’t bar evidence of defects in K formation such as lack of consideration, fraud, and duress. one that doesn’t reflect the complete agreement of the parties. Even if court determines that K is only partially partially integrated, doesn’t doesn’t mean open season on evidence of other other terms. Written agreement agreement will be considered final on stated terms terms,, and agreeme agreement nt may be supple suppleme mente nted d by consis consisten tent, t, additi additiona onall terms terms.. Can’t Can’t dispute anything in the writing because they’re fully integrated in writing and can’t be contradicted. c. On MBE, MBE, if an ans answe werr choic choice e addre address sses es a mate materi rial al term term that that was wasn’ n’tt in writ writte ten n agree agreeme ment nt,, chance chancess are the agreement was only partially integrated.
11.
a.
Chec Check k MBE MBE Con Contr trac acts ts que quest stio ions ns to to see see ifif tran transa sact ctio ion n in in good goodss is is inv involv olved ed.. If so, so, UCC UCC app appli lies es.. 1 in in 4 MBE Contracts questions involves sale of goods.
K modifications require consideration. (pre-existing duty rule) An irrevocable offer requires consideration consideration in order to make it a valid “option” “option” No consideration is required for modifications as long as they’re made in good faith.
Merchants can make irrevocable or “firm” offers without consideration, as long as offer is embodied in signed writing. Tradi raditi tion ona ally lly a K requi equire ress an offe offer, r, acce cceptan ptance ce,, and cons consiidera derattion ion (or (or some ome con conside sidera rattion ion substitute). If K exists, then promissory promissory estoppel and quasi-contract quasi-contract don’t apply. For For nonnon-me merc rcha hant nt offer offer to be irre irrevo voca cabl ble, e, it must ust be suppo support rted ed by cons consid ider erat atio ion n (enf (enfor orce ceab able le option K). 3rd party party beneficiaries beneficiaries v. assignees assignees – A beneficia beneficiary ry is created created in the K, and an assignee assignee gains his rights later after creation creation of K, when a party transfers his K rights rights to the assignee. A person who doesn’t have rights created and arising in the K can’t be a beneficiary.
d. e.
f.
a. b. c. d. e.
You’ You’re re aske asked d You’ You’re re aske asked d You’ You’re re aske asked d You’ You’re re aske asked d You’re You’re asked asked
a.
Common law doesn’t recognize degrees of murder, so if MBE question wants to discuss degrees it will supply appropriate statute. r – at common law, it is an unlawful killing (neither justifiable nor excusable) with malice aforethought. Malice doesn’t mean mean intent. 1) Intent to kill 2) Intent to cause serious bodily harm 3) Depr Deprav aved ed hear heartt – acto actorr disre disrega gard rdss an unre unreas ason onab ably ly high high risk risk of harm harm to hum human an life life – recklessness, extreme negligence 4) Felony murder – killing with with adequate provocat provocation. ion. Killing Killing in the heat of passion. Provocation must be enough to anger ∆ and should be of a type that would provoke reasonable person to kill. ∆ must not have cooled off when when killing takes place, and a reasonable person would not have cooled off in these circumstances. – 2 types: – ∆ ignores a risk of harm to human life which is less than the risk 1) represented by depraved heart murder. Gross negligence here, extreme negligence for murder. – misdemeanor equivalent of felony murder. 2)
b.
c.
d.
whe wheth ther er,, und under er the the fac facts ts give given, n, the the ∆ shou should ld be guil guilty ty;; the the pros prosec ecut utor or’s ’s or ∆’s ∆’s bes bestt arg argum umen ent; t; whi which ch of 4 pre prece cede dent ntss is is the the best best one one for for the the fac facts ts give given; n; the the most most seri seriou ouss cri crime me for for whi which ch the the ∆ coul could d be be con convi vict cted ed;; whic which h of 4 fact fact patt pattern ernss most most closel closely y fits fits a certai certain n type type of of crim crime e (i.e. (i.e. felony felony murder murder). ).
3. a. b. c.
4. a.
– trespassory taking and carrying away of the personal property of another with the intent to steal it. – larceny from a person which is accomplished by force or fear – the breaking and entering of the dwelling house of another at night with the intent to commit a felony therein.
– must remember how intent applies to different different crimes – conspirators must intend to agree and must also intend that criminal goal of conspiracy be done.
b. c. d.
e.
– accomplice must intend intend that his principal carry carry out the crime. crime. If he offers help without that intent, he’s not liable. – trespassory taking must be done with intent to steal. If actor only intends to borrow, there’s no intent to steal and no larceny. – requires breaking and entering another’s dwelling at night with intent to commit felony therein. If he goes in and plays scrabble, scrabble, no intent. If he mistakes mistakes house for his own, own, goes in and removes removes jewelry, jewelry, no intent intent and no burglary. Even an unreasonabl unreasonable e belief can be defense if it negates intent. - ∆ liable for one crime while while intended intended to do another crime. crime. Liable Liable even if second crime isn’t performed.
a. 1) 2) 3) 4) 5) 6) 7) 8)
b. c.
a.
b. c.
d. e.
1. 2. 3.
Caus Causat atio ion n alwa always ys req requi uire red d for for crim crimin inal al lia liabi bili lity ty.. If ∆’s ∆’s con condu duct ct did didn’ n’tt caus cause e vict victim im’s ’s inj injur ury, y, no no criminal liability. Forgiveness or condonation by victim, or return of stolen property, doesn’t negate criminal liability; crimes are considered wrongs against state, not against individual. Pers Person on can can obje object ct to to sear search ch only only if if he has has legit legitim imat ate e expec expecta tati tion on of pri priva vacy cy as to to plac place e sear search ched ed.. Likely to be issue if something incriminating one person is seized from someone else’s home, car, office, etc. If no expectation expectation of privacy, privacy, no standing to challenge search. No privacy expectation in bank records. If ques questi tion on says says jury jury beli believ eves es test testim imon ony, y, trea treatt tes testi timo mony ny as FACT FACT.. Mista Mistake ke of of fact fact woul would d negat negate e inte intent nt to to stea steal, l, but but mist mistake ake of law law isn’t isn’t vali valid d defen defense se to to larce larceny. ny.
is an out of court statement offered for the truth of the matter asserted. are admissible as exception to hearsay without requiring speaker’s availability. Know the requirements for substantive use of and a.
4.
Search in incident to to la lawful ar arrest Inventory searches Exigent circumstances Plain view doctrine Automobile searches Consent searches Stop and frisk Regu Regula lato tory ry insp inspec ecti tion onss (act (actua uall lly y need need warr warran antt for for this this one one but but requ requir irem emen ents ts aren’ aren’tt as stringent) applies only to searches and seizures done by the police or by people working under the direction of the police. – Mirand Miranda a warni warnings ngs are requir required ed only only when when police police intend to conduct custodial custodial (suspect is not free to leave) leave) interrogation. If police arrest someone and have no intent intent to questi question, on, no Miranda Miranda.. If sus suspec pectt volunt volunteer eerss confes confessio sion, n, no Miran Miranda. da. Custodial interrogations can take place away from the police station and can be conducted of someone who isn’t under arrest or even a suspect, but must be administered by police or agent of police.
If an answ answer er choi choice ce on MBE MBE menti mentions ons pri prior or iden identi tifi fica cati tion on,, prior prior incon inconsi sist sten entt state stateme ment nt,, or prior prior consistent statement, check to see if declarant declarant is currently testifying. If he’s not, answers can’t be correct. b. Even Even if a prior prior inco inconsi nsiste stent nt state statemen mentt doesn’ doesn’tt meet meet all all requ require iremen ments ts for for admis admissib sibili ility, ty, itit will will alwa always ys be available as non-hearsay to impeach or rehabilitate a witness. Know the requirements of admissibility on items like and
a.
5.
Need Need to be be famil familia iarr with with minim minimum umss requi require red d to admi admitt docum documen ents ts,, photo photogr grap aphs hs,, exper expertt testi testimo mony ny,, and the like. Expert testimony is not needed to authenticate a – all that’s needed is person who b. saw scene in question and can testify that photograph fairly and accurately represents or illustrates what it’s supposed to depict. Expert testimony testimony isn’t isn’t required required to authenticat authenticate e – anyone personally familiar with c. individual individual’s ’s handwritin handwriting g can testify to its authenticity authenticity as long as familiari familiarity ty isn’t isn’t acquired acquired for purposes of litigation. Graphologist could authenticate by comparing handwriting samples, without any d. personal familiarity with the individual’s handwriting – but expert testimony isn’t necessary if a lay witness meeting requirements testifies. – where the material terms of a writing are at issue, the original writing itself (including (including photocopie photocopiess and carbon copies) must be produced. produced. Copies Copies and oral testimony testimony concerning concerning writing’s contents are permissible only on showing that original is unavailable and that its lack of availability isn’t result of proponent’s serious misconduct. BER doesn’t apply in collateral matters. a. Only Only 2 situa situatio tions ns in in whic which h BER BER requ require iress that that origin original al docume document, nt, if availa available ble,, be introd introduce uced: d: 1) The term termss of of th the wri writi ting ng are are bei being ng prov prove en; or 2) The The witn witnes esss is is tes testi tify fyin ing g rel relyi ying ng on the the writ writin ing. g. b. Appl Applie iess onl only y to to mat mater eria iall ter term ms, not not coll collat ater eral al ma matt tter ers. s. a. b. c.
d.
e.
f.
g. h. i.
j.
k.
Form Former er tes testi timo mony ny is is avai availa lable ble both both for for imp impea eachm chmen entt and and as sub subst stan anti tive ve evi evide denc nce. e. “Sel “Selff-se serv rvin ing” g” answ answer er choi choice ce is alwa always ys inco incorr rrec ect. t. “Res “Res gest gestae ae”” ans answ wer choi choice ce is alw always incor ncorrrect. ect. (unavailability not required for most hearsay exceptions) 1) Prior testimony 2) Dying de declarations 3) Declarations ag against in interest 4) Statements of pedigree 5) Catch-all exception. – evidence may be admissible for one purpose and not for another purpose. Evidence being offered to establish an identifying circumstances makes what would be otherwise otherwise inadmissible inadmissible evidence, evidence, into admissible admissible evidence. evidence. If it’s offered only to show that ∆ is willing to commit robbery, not admissible, but if it’s offered to help ID ∆, it’s admissible. If witness testifies light was red, then upon CX is presented with depo statement that light 1) was was yell yellow ow,, tran transc scri ript pt is selfself-au auth then enti tica cati ting ng and and evid eviden ence ce is admi admiss ssib ible le for for both both impeachment and substantive substantive evidence. Admissible under former former testimony. “Ina “Inad dmissi issib ble beca becaus use e prob proba ative ive valu alue of evid eviden ence ce is out outweig weighe hed d by proba robabi bili litty of undue ndue prejudice” – sometimes it’s best choice, sometimes not. Keep in mind type of evidence typically excluded due to legal relevance problems – shocking evidence. When When an ans answe werr choic choice e says says “ina “inadm dmis issi sibl ble e as hear hearsa say y not wit withi hin n any exce except ptio ions ns”, ”, it rea reall lly y mean meanss “inadmissible under any other answer answer choice for this question.” A prior prior ID is is only only admi admissi ssible ble when when the the decla declaran rantt is testif testifyin ying, g, i.e. i.e. draw drawing ing sketch sketch of a sus suspec pect. t. Subs Subseq eque uent nt reme remedi dial al meas measur ures es cann cannot ot be admi admitt tted ed to prov prove e negli neglige genc nce e or wrong wrongdo doin ing g due to public policy reasons. – be careful not to confuse incompetence with bias (normally what’s at issue when competence is raised). FRE has only 2 requirements: requirements: Witness must have of the matter on which he’ll testify, and 1) He must declare that he will by oath or affirmation. 2) – an expert may base his opinion on facts not in evidence and even on facts which could not be admitted as evidence because they’re inadmissible hearsay. a) b) c)
Personal observation; Fact Factss pres presen ente ted d to the the exp exper ertt at tri trial al (i.e (i.e.. answe answeri ring ng a hypo hypoth thet etic ical al que quest stio ion) n);; or Facts acts int introdu roduce ced d to the expe expert rt outs outsid ide e the the cour courtr troo oom m (i. (i.e. by tech techni nici cian anss or consultants) of the type upon which experts in his field reasonably rely.
1) 2) 3) 4)
2. 3.
4. 5. 6. 7.
Offe Offers rs and and pay payme ment nt of of sett settle leme ment ntss them themse selv lves es – ina inadm dmis issi sibl ble; e; Admi Admiss ssio ions ns in in conj conjun unct ctio ions ns wit with h an offer offer to to pay pay a set settl tlem emen entt – ina inadm dmis issi sible ble;; Offe Offers rs and and pay payme ment nt of me medi dica call bil bills ls – ina inadm dmis issi sibl ble; e; Admi Admiss ssio ions ns in in conj conjun unct ctio ion n with with an an offe offerr to pay pay med medic ical al bil bills ls – admi admiss ssib ible le..
a. Natu Nature re and and char charac acte teri rist stic icss of of the the elem elemen ents ts of of Rea Reall Pro Prope pert rty; y; b. How a particul cular el element ca can be be cr created; c. How to classify the element; d. The The righ rights ts of of poss posses essi sion on and and rig right htss of the the use userr of the the ele eleme ment nt;; and and e. The The leg legal al a and nd equi equita tabl ble e rem remed edie iess stem stemmi ming ng fro from m tha thatt ele elem ment. ent. 2 distinct property subjects on MBE – Real Property and Future Interests. – BFP status doesn’t matter between between original parties to transaction. transaction. Status as BFP (one who takes for value without notice of prior claims) is relevant on questions about recording statutes. Only relevant if subsequent subsequent purchasers are involved. Not relevant for whether whether P could sue for breach breach of title/contract. – existence and conveyance of marketable title are implied in land sale contracts, but once the deed takes effect, effect, the terms of deed control. If vendor contracts contracts to sell property property and later conveys property via quitclaim deed, there are no covenants with QCD. – the deed, not the contract, controls. Know and – if requirements are met, person can be bound by them even even if they don’t don’t appear appear in his deed. Notice Notice is important. important. Notice Notice can be express express or implied, implied, i.e. mere physical appearance of a neighborhood can provide notice that a building restriction exists. Know differences between . Pure notice and race-notice are easily distinguishable by one point – whether or not a subsequent BFP is protected BEFORE he records. In both cases BFP must have no actual knowledge knowledge of prior conveyance at time time he takes conveyance. If he does, he won’t be BFP BFP and conveyance won’t be valid valid against prior purchaser. If MBE question says recording act requires requires good faith, it’s notice or race-notice. – doesn’t require good faith. Very rare and doesn’t pop up up on MBE too often. Easy to a. spot because first recorded conveyance wins (first in time). – BFP is protected from moment the conveyance to him takes place. b. – BFP isn’t protected protected until he records records his own interest. interest. Most commonly commonly tested tested on c. MBE. Watch for language such as “No unrecorded conveyance or mortgage of real property shall be good against subsequent purchasers for value without notice, who shall first record.”
8. a. b.
c. d.
e.
f.
Elim Elimin inat ate e answe answers rs tha thatt are are wron wrong g on the the fac facts ts,, wron wrong g on the the law law,, and tha thatt are are irre irrele leva vant nt.. Join Jointt tenan tenantt can uni unila late tera rall lly y sever sever join jointt tenan tenancy cy by any any act act distu disturb rbin ing g one of 4 unit unitie iess (time (time,, title title,, possession, and interest); includes the act of one joint tenant in mortgaging property (under title jurisdictions) as well as act of alienation alienation by any tenant (voluntary or involuntary). involuntary). Reco Record rdin ing g is done done for bene benefi fitt of subse subsequ quen entt purch purchas aser ers, s, does doesn’ n’tt affec affectt parti parties es curr curren entl tly y in titl title; e; they can change their interests without recording. Tran Transa sact ctio ions ns invo involv lvin ing g inte intere rest st in land land are are cover covered ed by SoF SoF whic which h in turn turn requ requir ires es a writ writin ing g to evidence the agreement. Beware of answers stating “X will prevail, BECAUSE”, the fact that makes answer correct must be in the fact pattern!!! Otherwise, if answer says “X will will prevail, IF”, the fact doesn’t have to be in the question. question. With conditional conditional answers answers need only determine determine if the fact provided provided is central to resolving the issue, if so it’s correct. Cons Constr truc ucti tive ve not notic ice e is bas based ed on on circ circum umst stan ance cess whic which h appe appear ar in in gran grante tee’ e’ss chai chain n of tit title le.. Most Most lik likel ely y to trip you up is fact pattern containing evidence that something’s amiss in previously recorded deed when the deed itself doesn’t appear appear in chain of title. If there isn’t an indication of a problem in chain of title, then then grantee has no notice. notice. Watch out for inquiry inquiry notice.
g.
h.
a.
b. c. d.
e. f. g. h.
i.
j.
k.
a. b. c.
Ques Questi tion onss askin asking g whic which h argum argumen entt is most most like likely ly to suc succe ceed ed – dete determ rmin ine e which which answ answer er choi choice ce most most closely closely addresses addresses greatest greatest obstacle to success success in case. case. At least one of the answer answer choices must address a central issue in order to be the best response! In orde orderr for for zoni zoning ng ordi ordinan nance ce or or cove covenan nantt to to viola violate te the the cons constit tituti ution, on, must must be far outsid outside e the the realm realm of standard restrictions. Futu Future re Inte Intere rest stss outli outline ne – (1) clas classi sifi fica cati tion on of esta estate tes; s; (2) (2) probl problem emss of vesti vesting ng (inc (inclu ludi ding ng clas classs gifts); gifts); (3) RAP; and (4) Rules relating relating to restraints restraints on alienation. alienation. 2 types of future interests interests questions – (1) what interest is created by a given conveyance or devise, or (2) whether the interest created is valid. Futu Future re inte intere rest stss q que uest stio ions ns freq freque uent ntly ly invo involv lve e RAP RAP and and cla class ss gift gifts. s. Need Need to to know know dif diffe fere renc nce e betw betwee een n class class gif giftt in int inter er viv vivos os conv convey eyan ance ce and and class class gif giftt in wil will. l. Know Know rule rule on on spli splitt ttin ing g mortg mortgag age e payme payment ntss betw betwee een n remai remaind nder erme men n and lif life e esta estate te hol holde derr – when when there’s a mortgage on property which is possessed by life estate holder, life estate holder is responsible for interest payments and remainderman is liable for principal. Not enough to know that an interest violates RAP is void, must know what happens to the interest if it’s voided. voided. You have to figure out the results of removing removing that interest from the conveyance conveyance,, and do this by looking at what grantor/testator intended to create. Shifti fting ex executory in interests vi violate RAP RAP.. If RAP RAP is viola violated ted,, the the enti entire re tran transac sactio tion n is is not not void voided; ed; only only the the offe offendi nding ng part part of itit fail fails. s. Don’ Don’tt confu confuse se fee fee simp simple le dete determ rmin inab able le with with fee fee simple simple sub subje ject ct to con condi diti tion on subs subseq eque uent nt.. Only 2 general types of future interests that can be created in transferees – remainders and executory interests. – takes upon the natural termination of the prior estate (i.e. death of life 1) estate holder). – divests divests the prior estate estate holder. If interest interest divests divests prior 2) estate holder, it must be an executory interest. – Class gifts to grandchildren are usually valid if they appear in a will and invalid if they appear in an inter vivos vivos conveyance. Check to see if the gift is created in in will or conveyance. If it’s created by a , and class involves grandchildren of testator, less likely to have to deal with unborn widows, fertile octogenarians, or any any other problems. problems. If it’s created by , have to watch for interests which might arise to violate RAP. Under RAP, an interest must vest vest within a life in being plus 21 years years to be valid. Try to see if you can think of any situation situation that won’t won’t satisfy satisfy RAP. If you can think of even one, RAP has been violated and interest is void.
Questions a assking П’ П’s best claim. Questions ons askin king Δ’s best defen fense. Questions ons as askin king yo you ifif П will pr prevail.
2. a.
3.
Δ must fail to exercise such care as a reasonable person in his position would have exercised; his conduct must be a breach of the duty to prevent the foreseeable risk of harm to anyone in П’s position, and this breach must cause П’s damages. – merely one means of proving proving negligence negligence claim. Establishe Establishess a prima prima facie case of negligence only where direct evidence evidence of the circumstances of the injury are unclear. If you have direct evidence of how a result came about, res ipsa loquitur loquitur doesn’t apply. 3 elements of res ipsa loquitur: a. Even Eventt caus causin ing g inju injury ry wou would ld nor norma mally lly not not have have hap happe pene ned d in the the abs absen ence ce of of negl neglig igen ence ce;; Δ was in exclusive control of the instrumentality instrumentality causing injury; and b. c. П mus mustt not not have have volu volunt ntar aril ily y con contr trib ibut uted ed to the the eve event nt caus causin ing g his his inju injury ry..
a.
Only one situation where П must prove special damages as part of his defamation claim: when his claim is based on slander and is for a slanderous statement not within the following four
categories: claim will fail) Statements 1) Statements 2) Statements 3) Statements 4)
b. c.
d.
(if claim doesn’t fall within slander per se, he must prove special damages or
accusing someone of a crime; alleging that someone has a foul or loathsome disease; adversely reflecting on a person’s fitness to conduct her business or trade; and imputing serious sexual misconduct to someone (almost always a woman). – pecuniary/economic damages, i.e. lost job, inheritance, gift, customer. – defamation requires that the statement be communicated to a 3 rd party (someone other than П). Strict liability not not required; П must show that that Δ either intended to to communicate the rd statement to a 3 person or that Δ negligently publicized the statement to 3 rd persons. persons. If 3rd person learns of statement through no fault of Δ, i.e. П throws away letter and someone else finds it in the trash can, then П’s claim will fail. – addresses addresses the level level of fault П will have to prove in order order to prevail. prevail. If qualif qualified ied privi privileg lege e exists exists,, П will will have have to prove prove that that not only only was state stateme ment nt defam defamato atory ry and published through Δ’s fault, fault, but that it was made made with malice. When no privilege exist exist and there’s no special D which causes malice to be proven (i.e. media) defamation is never strict liability offense. At very least, P will have to prove negligence. – knowing falsity or reckless disregard for the truth. 1) Qualified privilege protects a public or private interest, and any statements in furtherance 2) of that interest. Such situations include a former former employer warning a new employer about an employee’s tendency to steal, testifying to parole board about a prisoner’s shortcoming, et cetera.
3)
e.
a) Publi ublicc fig figur ure, e, publ publiic iss issue ue,, med mediia Δ – mal malic ice; e; b) Publ Public ic figu figure re,, pri priva vate te issu issue, e, me medi dia a Δ – neg negli lige genc nce; e; c) Private fi figure, me media Δ – ne negligence; ce; d) Non-media Δ – negligence. If Δ reasonably believed statement was true, he can’t be liable for negligence, but if Δ is 4) media and issue is public, П has more to prove and has to prove malice (Δ knew statement was false or evidenced a reckless disregard for its truth or falsity). Proving negligence wouldn’t be enough. Truth is a complete defense.
5. a.
6.
7.
Truth is not a defense. Invasi Invasion on of privac privacy y tort tort covers covers 4 distin distinct ct claim claims: s: ( b. ) 1) Appr Approp opri riat atio ion n of П’s П’s per perso sona nali lity ty for for Δ’s Δ’s own own com comme merc rcia iall gain gain;; 2) Intrusio sion on on П’ П’s af affairs or or se seclusion; on; 3) Publ Public icat atio ion n of of fac facts ts whic which h pla place ce П in in fal false se ligh light; t; and and 4) Publi ublicc di disclos closur ure e of of pri priv vate ate fa facts cts abo about ut П. – Requires Requires (absolute) (absolute) duty, breach, breach, causation, causation, and damages. damages. Only 3 ways a Δ can be strictly liable: By keeping a wild animal; a. By conducting conducting an abnormally abnormally dangerous dangerous activity; activity; (abnormally (abnormally dangerous dangerous activitie activitiess cannot cannot be b. performed with complete safety no matter how much care is taken, includes fumigation, use of explosives, blasting, excavating, and mining) By selling a defective defect ive product (strict products liability) c. – there are 3 different ways in which someone who makes or sells a product can be held liable for harm that product causes: – things to know: (CCC BoND – Control, Changes, Changes, Causation, Business, a. No privity, Defect) 1) Defect fect – pro prod duct uct mus mustt ha have been een de defect fectiv ive; e; Control – condition must have existed when it left Δ’s control; (retailer can be liable for 2) manufacturer-created defect even if he didn’t know about it and couldn’t have discovered it, but he can then seek indemnity from manufacturer)
3) 4) 5) 6)
b. 1)
2) 3)
1) 2) 3)
4) 5)
Chan Change gess – prod produc uctt must must not not be be expe expect cted ed to to unde underg rgo o sign signif ific ican antt chan change gess befo before re it it gets gets to to the user (or it must not actually undergo significant changes); Busi Busine ness ss – sell seller er mus mustt be in busi busine ness ss of sell sellin ing g the pro produ duct ct (can (can’t ’t be be a casu casual al sel selle lerr or user); Caus Causat atio ion n – damag damage e must must resu result lt from from the the def defec ectt (Δ is lia liabl ble e for any any harm harm to to pers person onss or property); No Pri Privi vity ty – Δ’s duty duty exte extend ndss to anyon anyone e fores foresee eeab ably ly enda endang nger ered ed by the the produ product ct (whi (which ch means no privity requirement). – express and implied warranty П who who succ success essful fully ly sues sues someon someone e for for brea breach ch of of war warran ranty ty is entit entitled led to benefi benefitt of bargai bargain. n. Privity is an issue with implied warranty but courts don’t like denying П recovery due to no Privity, Privity, and Privity unlikely unlikely to be an issue because of differences differences among the states as to who’s covered. Privi rivity ty isn isn’t ’t re requi quired red unde underr exp express ress war warra ran nty. ty. Always available as an alternative theory when a product hurts someone. Negligence can be correct answer choice only if strict products liability isn’t available (usually because one of requirements hasn’t been met). Δ can’t an’t be lia liable ble for for prod produc uctt-re rela late ted d neg neglige ligen nce unle unless ss defec efectt was dis discov covera erable ble by reasonable means. If purch purchas aser er of a defe defect ctiv ive, e, unrea unreaso sona nabl bly y dang danger erou ouss prod produc uctt lear learns ns about about an avail availab able le safety device but fails to install it, and the device was cheap and the danger from not installing the device is great, then purchaser Δ may be found negligent for failing to install device. No privity needed. Δ must must have have fai faile led d to exer exerci cise se due due car care e in orde orderr to be lia liabl ble, e, can can’t ’t be be held held liab liable le for for negligence of those preceding him in distribution chain.
a.
– П only needs to prove an act by Δ creating an unreasonable, substantial interference with П’s use or enjoyment of property. Δ doesn’t have to intend intend to interfere with with П’s rights and doesn’t have to be negligent about interfering with П’s rights in order to be liable. Δ could have done everything possible to avoid interfering with П’s use and enjoyment of land and still be liable.
a.
3 im important To Torts ca categories Intentional Torts 1) 2) Negligence 3) Strict Liability – was Δ’s conduct reasonable? If it was, Δ can’t be negligent, because negligence requires unreasonable behavior. – there can be more than one cause in fact. The fact that someone other than Δ contributed to П’s damages doesn’t in itself relieve Δ of liability if Δ’s conduct was substantial factor in causing П’s damages. Try ignoring every actor except Δ and П – were П’s damages/injuries within the risk created by Δ’s act? relieve relieve original original tortfeaso tortfeasorr of liability liability only if results results of interveni intervening ng causes are unforeseeable. Intervening Intervening actor(s) actor(s) may also be liable. Negligence Negligence of interveni intervening ng actors won’t relieve relieve original tortfeasors of liability unless results of intervening negligence are unforeseeable. P is free free to to pick pick his his D and and mere mere fac factt he coul could’ d’ve ve sue sued d some someon one e else else too too won won’t ’t exo exone nera rate te D. D. If conduct is the proximate proximate cause of damage, damage, it must be cause cause in fact too. If there aren’t aren’t any intervening acts, proximate cause must must exist as long as Δ was negligent. Only time you should be concerned with proximate cause is when remote possibilities are involved.
b. c. d. e. f.
g.
