Constitutional Law
What is Defamation?
-Defamatory statement
-About or concerning the Plaintiff
-The statement is published (intentionally or negligently)
-The statement is harmful to Plaintiff's reputation
-Damages (Libel is presumed since it's published, if slander, must prove special damages unless slander per se)
What is a valid trust?
-Has a Trustee: manages and holds trust property for beneficiaries; a trust will not fail for lack of trustee; court will appoint
-Has Beneficiaries: Must be definite and ascertainable
-Must have Property- must be identifiable and can arise later if funded
The are the prima facia elements of a contract?
-Acceptance
-Consideration
What is the Duty of Care/Business Judgement Rule?
Is a presumption that in making a decision, the directors acted:
-Informed
-In good faith
-With the honest belief that action was in the best interest of business
*Can rely on info, opinions, reports, experts (accountants/legal counsel)
What is a required for a valid deed?
-Must be lawfully executed
-Must ID parties and land; and
-Must be delivered
*cannot pass to dead people
What is 3rd Party Standing?
Tip: AAA
A party has third party standing if:
-Plaintiff's injury adversely affects relationship with 3rd party
OR
-Injured party is unlikely to assert their own rights.
What is a valid will?
-In writing (if forged singature, completely invalid)
-Signed by Testator (any mark is okay)
-Intent by Testator that document be will
-18 Years Old
-Two witnesses in Testator's presence that know the document is Testator's will
Define Offer. Tell us some examples.
Willingness to enter into bargain (intent, definite, and there's communication)
Examples
-Unilateral- performance as acceptance
-Bilateral- exchange of promises
-Option- promise to keep offer open; consideration is required
-Firm Offer (merchants only) must be in writing/signed and can be held for less than or equal to three months
What is required for Incorporation?
TIP: A PAIN
-Authorized Shares
-Purpose
-Agent
-Incorporators
-Name
*Articles of Incorp. must be filed with state
*If conflict with bylaws and articles, articles control
*Only liable for Ks prior to incorp if expressly or impliedly adopts (ratifies) K
*Promoter liable for Ks until novation unless expressly stated
Define Tenancy by the Entirety.
Applies to married people.
Cannot be conveyed without the consent of the other spouse
Right of Survivorship
Can be severed by death of one spouse, issuance of divorce decree, mutual agreement in writing, execution of joint creditor
What is the Dormant Commerce Clause?
State or local law is invalid if:
1. Discriminates against other states facially or in effect; OR
SS will be used to determine whether the law is necessary to serve a compelling state interest; AND no reasonable non discriminatory alternative exists.
2. Unduly burdens interstate commerce.
IS will be used to determine if there is an important state interest and does not impose an unreasonable burden on IC. Think burden must out weight benefit.
What is a Codicil?
It modifies, amends, or revokes will
-A codicil can republish a will
-If a codicil is revoked, the will stands
-If will revoked, bye bye codicil
-A codicil can validate a defective will, so long as will was intended to be will, but it cannot validate an unexecuted will
-A codicil can cure an interested witness
-A codicil must refer to a will
How do we know "Time is of Essence"?
-Appears in contract OR
-Other party was aware deadline was essential
What is the right to inspect books? How is it done?
A shareholder can inspect and copy account records, excerpts of BOD meetings
1. Request must be made during business hours at the principal office
2. 5 days written notice
3. Made in good faith an for a proper purpose
4. Describes purpose with particularity
5. The records are connected to the purpose
*can always inspect articles, bylaws, BOD resolutions, annual report, minutes of shareholder meetings
What is required for a warrant?
-Based on probable cause
-Describes area with particularity
-Precise on its face
-Issued by neutral and detached magistrate
Define Equal Protection under the 5th Amendment
Tip: Look for classification.
Similarly situated people are treated in a dissimilar manner without adequate justification. The nature of the right involved determines the basis of the classification.
Strict Scrutiny
-Suspect classification (race/alienage)
-Fundamental Rights
Intermediate Scrutiny
-Gender
-Legitimacy
Rational Basis
-Age, education, wealth, poverty
-Everything else
-If law is neutral, but applied in a discriminatory manner, must show motive and impact)
What is a Pour Over Trust?
A will that makes a gift to a trust.
-If a trust is terminated, the gift it revoked
-Will gives gift to trust; it doesn't create a trust
-Trust must be ID'ed in will
Define impossibility. Define impracticability.
Unforeseen event that occurs after contract formation, but before performance is complete.
If impossibility (think damage/destruction)- it is objectively impossible to perform.
If impracticability (think subsequent law)- performance is possible with extreme and unreasonable difficulty and said difficulty excuses non-performance.
Who votes in a corporation?
Shareholders of record date (70 days before meeting); a quorum is needed for vote to be effective
What is required for Attachment?
TIP: VCR
-Value
-Contract/Security Agreement
-Rights
Define the Privileges and Immunity Clause under the 5th and 14th Amendments.
5th Amendment
-States may not discriminate against out of staters for essential activities
-Can require residency requirements, can charge higher fees
-Not applicable to Corporations
14th
-States cannot place restrictions on interstate travel or national citizenship
-Right to vote
-Right to welfare
Define the Power of Appointment. What are the different types?
It is the legal authority to make another person the outright owner of the property left by a decedent.
-General: unlimited, even for self; done via blanket statement, but it must include language
-Specific/Special: Limited to a class of people
-Presently Exercisable Power: Exercisable during Donee's lifetime
-Testamentary Power: Exercisable only by Donee's will
-Takers in Default of Appointment: Donee fails to exercise power of appointment.
What is Anticipatory Repudiation?
-Unequivocal statement or conduct
-Prior to performance due date
-That indicates that cannot or will not perform
Can be retracted unless:
-Other party cancelled contract
-Materially changed position
-Considered repudiation final
What is piercing the corporate veil? Who does it apply to?
When court puts aside corporate liability and holds the SH personally liability. Applies to close corporations and LLCs.
Examples include:
1. Corporation is acting like the alter ego of SH (think personal reasons)
2. Failure to follow corporate formalities (n/a to LLCs)
3. Corporation is inadequately capitalized; OR
4. Preventing fraud
Define Trespass to Chattel. Define Conversion.
Trespass to Chattel: Intentional interference (damage or possession) with plaintiff's use of chattel that causes harm to chattel.
*Must pay for actual damage
Conversion: Defendant's trespass on plaintiff's property interest is substantial and amounts to an act of ownership/dominion
*must pay fair market value at the time of conversion