Constitutional Law
What is the rule statement for Standing?
To assert a claim in federal court a claimant must have standing. Standing requires an injury in fact, causation, and redressability.
What is the ABA/CA rule for Competence?
A lawyer shall provide competent representation to a client, which requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. A lawyer can make himself competent through reasonable preparation or by associating with a lawyer of established competence in the field. In CA, a lawyer must not intentionally, recklessly, act with gross negligence, or repeatedly fail to perform legal services with competence. Additionally, a lawyer must competently supervise their employees.
What is the Applicable Law rule?
Article 2 of the Uniform Commercial Code (UCC) governs contracts for the sale of goods. Goods are defined as movable things. Otherwise, common law dictates unless it' s a mixed contract where the predominant purpose of the contract will determine the appropriate law.
What is the rule statement for TORTS Compensatory Damages?
Compensatory damages are awarded to compensate the plaintiff for injury or loss. They are measured by the monetary value of the plaintiff's harm. There are two types of compensatory damages in torts. 1. General; and 2. Special.
What is the rule statement for Valid Trust Formation?
Formation of a valid trust requires (1) a beneficiary (2) a settlor with capacity (3) intent to create a trust (4) a trustee (5) a valid trust purpose (6) trust property or res and (7) compliance with any state formalities. The trust need not have a named trustee at formation, the court can appoint a trustee however the trustee may not be the sole beneficiary.
What is the rule statement for Commerce Clause?
Under the Commerce Clause, congress has the power to regulate the channels and instrumentalities of interstate commerce and any activity that substantially affects interstate commerce.
What is the rule statement for Formation of a Lawyer-Client Relationship?
A person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client. A lawyer-client relationship is formed when a prospective client seeks legal services from a lawyer and the lawyer either agrees to provide services or fails to clearly decline services.
What is the rule for an Offer?
An offer is a manifestation of intent to contract with clear and certain terms that is communicated to an identified offeree.
When may Punitive Damages be awarded?
Punitive damages may be awarded if clear and convincing evidence establishes the defendant acted willfully, wantonly, recklessly, or with malice. Punitive damages are not generally available in contract actions.
What is a Charitable Trust?
A trust is deemed charitable when it has a stated charitable purpose and exists for the benefit of the community at large, or a class of persons with continually changing membership.
What is the rule statement for Dormant Commerce Clause?
The Dormant Commerce Clause restricts the states and local governments from regulating activity that affects interstate commerce if the regulation is discriminatory or unduly burdensome.
What is the general Conflict of Interest Rule?
A lawyer may not represent a client where a conflict of interest exists. A conflict of interest arises if the representation is directly adverse to another client, or there is a significant risk that the lawyer’s representation will be materially limited due to personal interests or responsibilities to other clients or third parties, unless (1) the lawyer reasonably believes he can provide competent representation, (2) not prohibited by law, (3) two party opponents are not represented by the same lawyer, and (4) the client(s) give informed consent in writing.
What is the rule statement for Statute Of Frauds?
Statute of Frauds
Under the statute of frauds, certain contracts are not valid unless they are in writing. The writings must be signed by the party charged, reasonably identify the subject matter, indicate there is a contract, and state the essential terms. These contracts are: Contracts for marriage, a contract that cannot be performed within a year, land sale or land leases for over a year in length, executive guarantees to pay, contracts for goods valued over $500, and surety ships. (MY LEGS)
What is the rule statement for a TRO?
A temporary restraining order, or TRO, is an equitable remedy used in an emergency that preserves the status quo until a preliminary hearing on the matter can be heard. This is for 10 days in state court, 14 days in federal courts normally, but the time can be extended if necessary. For a TRO to be granted, the moving party must show, (1) imminent irreparable harm will occur in the absence of awarding the temporary restraining order, and (2) the likelihood of success on the merits. While a TRO may be granted ex parte, meaning without opposing counsel's presence, courts will generally require a strong showing of a good faith effort to notify the opposing party, or a strong showing of why notice could not be effectuated.
What is a Trustees Duty of Loyalty?
A trustee is required to remain loyal to the beneficiaries, refrain from self-dealing the trust assets, administer the trust in the best interest of the beneficiaries, and act impartially towards each beneficiary.
What is the Procedural Due Process Rule?
The due process clause of the 14th Amendment provides that no person shall be deprived of life, liberty, or property without due process of law. When assessing if there has been a violation of the procedural due process clause, the Court will first determine if there has been a deprivation of a life, liberty, or property right.
What is the ABA/CA Duty of Loyalty Rule?
A lawyer owes his clients a duty of loyalty, which requires they must act in the client’s best interests and avoid conflicts. If representing clients with competing interests, an attorney must advise the parties and encourage them to seek independent counsel. The model rules encourage advisement in writing, that the client be advised of the conflict, and waive their rights related to the conflict. In CA, writing is required when an attorney represents clients with actual or potential conflicts.
What is the Parol Evidence rule?
Evidence of a prior or contemporaneous agreement may not be introduced if it contradicts a later information. If the contract contains no time or date of completion or no merger clause, assume it's partially integrated.
What is the rule statement for Expectation Damages?
Expectation damages include all expected profits or costs that would have been realized if the contract was fully performed by the breaching party. These damages place the non-breaching party in the position they would have been in if there was no breach.
What is the Duty to Inform and Account?
A trustee must annually report to the beneficiaries regarding the value, employment and usage of all trust assets. Additionally, beneficiaries are entitled to an accounting upon request.
What is the rule statement for Strict Scrutiny?
Under the strict scrutiny test, the government must prove the law is necessary to achieve a compelling government purpose. This applies to suspect classification and any impingement of a fundamental right.
What is the Duty of Fairness Rule?
A lawyer shall not unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law.
What is the rule statement for Adequate Assurances?
A party with reasonable grounds for insecurity regarding performance may request adequate assurances. If the other party does not provide these assurances within a reasonable time, in writing, within 30 days, the asking party may treat that as an anticipatory repudiation.
What is the rule statement for Consequential Damages?
Consequential damages are damages that stem indirectly from the breach, however, are foreseeable and certain. They must have been foreseeable at the time of contracting.
When can a trust be terminated?
An irrevocable trust may be terminated if (1) the settlor and all beneficiaries agree while the settler is still alive, (2) all the beneficiaries agree and it doesn't frustrate the trust purpose, or (3) if the trust ends as stipulated in the trust formation writing.
A revocable trust can be terminated in any way specified in the trust or if it doesn't state so, in any writing signed by the settlor.