MBE PERTINENT RULES

PROPERTY 1

100

DEFEASIBLE FEES

A fee simple estate of potentially infinite duration that can be terminated upon the occurrence of some specified event
-i.e., an estate with a remainder vested in some person, who may lose the vested interest upon the occurrence of some event
-Requires clear words of intent for the remainder to vest
—-> Words of desire, hope, or aspiration are insufficient

Three types of defeasible fees:

(1) Fee Simple Determinable – Property automatically reverts back to the grantor upon the happening of a given event
—->Accompanying future interest = possibility of reverted (retained by the grantor)

(2) Fee Simple subject to condition subsequent – grantor retains power to terminate grantee’s estate (grantor must take action to terminate; does not occur automatically)
—-> Accompanying future interest = right of reentry (retained by grantor)

(3) Fee Siple Subject to an Executory Interest – property automatically transfers to a third party (i.e., someone other than the grantor) upon the happening of a given event
—>Accomapnying future interest = shifting executory interest (retained by the third party)

200

FEE SIMPLE DETERMINABLE

Property automatically terminates and reverts back to the grantor upon the happening of a given event or condition

Characteristics:
>Automatic forfeiture - Upon the occurrence of the given event or condition, the grantee automatically forfeits the estate
>Potentially Infinite - duration can be infinite so long as the event or condition does not occur
>Transferability - alienable, devisable, and descendible
—-> Absolute restraints on alienation are void

Creation - requires clear durational language
>Phrases such as “for so long as,” “while,” “during,” “until,” etc.
—>E.g., “to A for so long as he practices law”
> If A stops practicing law, the property automatically reverts back to the grantor
>Words of desire, hope, or aspiration are insufficient

Accompanying future interest = possibility of reverted
>Grantor retains the possibility of reverter

300

FEE SIMPLE SUBJECT TO CONDITION SUBSEQUENT

The grantor retains the power to terminate the grantee estate upon the happening of some given event or condition

Characteristics:
>Forefeiture not automatic - if the event or condition occurs, the grantee still retains title until the grantor takes some action to exercise his right of reentry
—>Distinguish from fee simple determinable
>Potentially infinite - duration can be infinite so long as the event or condition does not occur
>Transferability - alienable, devisable, and descendible, subject to the occurrence of the given event or condition
—> Absolute restraints on alienation are void

Creation - Clear durational language must carve out a right of reentry for the grantor
> E.g., “to A, but if he wins the lottery, grantor reserves the right to reenter and retake”
>Words of desire, hope, or aspiration are insufficient

Accompanying future interest = right of reentry
>Grantor retains the right of reentry

400

FEE SIMPLE SUBJECT TO AN EXECUTORY INTEREST

Property automatically transfers to a third party upon the happening of a given event or condition

Characteristics:
>Automatic forfeiture - upon the occurrence of the event or condition, the estate automatically transfers to a third person
—>similar to a fee simple determinable, but ownership automatically transfers to a third person, not grantor
>Potentially infinite - duration can be infinite so long as the event or condition does not occur
>Transferability - alienable, devisable, and descendible, subject to the occurrence of the event or condition
—> Absolute restraints on alienation are void

Creation - clear durational language is required
>E.g., “To A, but if A is ever arrested, then to B”
>Words of desire, hope, or aspiration are insufficient

Accompanying future interest = shifting executory interest
>The third party holds the shifting executory interest

500

LIFE ESTATE

An interest that lasts only for the life of the interest holder
>i.e., does not terminate at a fixed or computable time
>Typically measured by the life of the grantee
—>E.g., O grants “To A for life”; A, the life tenant has an estate in the land until A dies; then reverts to O
>Life estate pur autre vie - life estate measured by the life of another person (i.e., one other than the life tenant)
—->E.g., O grants “To A for the life of B”

Doctrine of Waste - Concerns rights/duties of life tenant (LT)
>LT cannot injure interests of remainder/reversion-holder
>Affirmative (voluntary) waste - LT cannot consume or exploit natural resources, except:
(a) Where necessary for repairs or maintenance of land
(b) When the grant expressly gives the right to exploit
(c) If the land was used for exploitation before grant
—->Opoen mines doctrine - if extraction of materials was done on land before life estates began, LT may only extract from mines already open.
>Permissive waste - LT must repair/maintain property up to the extent of income/profits derived from land or rental value of the land; failure to do so is a permissive waste.
>Ameliorative waste - acts that economically benefit land’s value; usually permitted under modern authorities.

600

FUTURE INTERESTS

Two categories of future interests:

(1) Future interests in the grantor
(d) Possibility of reverter
> Accompanies a fee simple determinable
(e) Right of reentry/power of termination
> Accompanies a fee simple subject to a condition subsequent
(f) Reversion
> Default future interest for grants of an estate smaller than a fee simple, such as life estates
> E.g., “to A for life” or to A for 99 years”

(2) Future interests in grantees or third person
(a) Vested remainder – Three types:
i. Indefeasibly vested remained
ii. Vested remainder subject to total divestment
iii. Vested remainder subject to open
(b) Contingent remainder
(c) Executory interest

700

REMAINDERS

A future interest in a third person arises immediately upon the termination of the preceding estate.

Characteristics:
>Expressly created in the same conveyance in which the preceding estate is created
>Cannot cut off or divest an interest held by a prior transferee
>Alienable, devisable, and descendible

Categories of remainders:
(1) Vested remainders - three types:
(a) Indefeasibly vested remainders
(b) Vested remainder subject to total divestment/executory limitation
(c) Vested remainder subject to open

(2) Contingent remainders - arise if:
(a) There is a condition precedent to the future interest becoming possessory
(b) The future interest vests in an unascertained taker
(c) both (a) and (b)

800

VESTED REMAINDER

A reminder that automatically becomes possessory upon the natural expiration of the preceding estate
>Limitations - vested remainders cannot:
(a) Be subject to any condition precedent
(b) Vest in an unknown or ascertained person

Three types of vested remainders:

(1) Indefeasibly vested remainder - becomes possessory immediately upon termination of the prior estate

(2) Vested remainder subject to total divestment - subject to some subsequent condition, such that the remainderman could be divested after taking possession
—>E.g., “to A for life, remainder to B; but if B weds, to C”

(3) Vested remainder subject to open (class gift) - remainder vested in a described class of takers, at least f one whom is capable of taking possession (i.e., by virtue of being alive)
—> Not subject to any condition precedent
—> Open vs. closed class - class remains open to allow for future class members (anyone who satisfies class description e.g., “children of A”) and closes when additional class members are impossible
—>Rule of convenience - class closes whenever any class member can call for distribution of her share; does not apply if it conflicts with the grantor’s expressed intent

900

CONTINGENT REMAINDERS

A remainder will be contingent if it is either (a) subject to a condition precedent, or (b) created in favor of an unascertained or unborn person.

Subject to condition precedent - remainder’s taking jecit to a condition precedent, i.e., contingent as to an event
>Once the grantee satisfies the contingency, the interest automatically becomes an indefeasibly vested remainder
>E.g., “to A for life, then to B and his heirs when B gets married”
—> If B is unmarried at the time of the conveyance, A has a life estate, B has a contingent remainder (b/c marriage is a condition precedent), and the grantor has a reversion in case B is not married when A dies

Subject to unborn or unascertained persons - the remainder is contingent if created in favor of unborn or unascertained persons
>The remainder is contingent on the grantee becoming born or ascertained
>E.g., “to A for life, then to B’s heirs”
—>if B is alive upon conveyance, the remainder is contingent b/c heirs of B cannot be ascertained until B dies

1000

RUE OF DESTRUCTIBILITY, MERGER (SHELLY’S RULE), & THE DOCTRINE OF WORTHIER TITLE

Rule of destructibility - at common law, a contingent remainder is destroyed if it remains contingent (i.e., the condition is not satisfied) when the preceding estate ends
>E.g., O grants “to A for life, then to B once he goes to law school.: A dies and B has not gone to law school
—>At common law, B gets nothing upon A’s death
>Modern rule - gives a reversion to the grantor or grantor’s heirs until the grantee satisfies the condition

Merger (Shelly’s Rule) - O grants “to A for life, then to A’s heirs” and A is alive
>At common law, the remainder merges and A has a fee simple absolute
>Modern rule - A has a life estate and A’s heirs have contingent remainders
—>O has a reversion b/c A could die without heirs

The doctrine of worthier title - O conveys “to A for life, then to O’s heirs”
>The contingent remainder in O’s heirs is void; A instead has a life estate and O has reversion

1100

EXECUTORY INTEREST

A future interest in a third party that takes effect by cutting short some interest - two types: shifting and springing
>Includes any future interest that is not a remainder
>Look for phrases like “but if,” “then to,” “for so long as,” etc.
>Executory interest holders lack standing to sue for waste

Shifting executory interest - always follow a defeasible fee
> Cuts short someone other than the grantor
>E.g., “to A and his heirs, so log as the property is used for storage. But if used for any other purpose, to B and his heirs
—->A has a fees simple subject to an executory interest
—>B has a shifting executory interest - if A stops using the property for storage A’s interest is cut short (not the grantors)

Springing executory interest - cuts short the interest of the grantor or his heirs
>E.g., “ to A, if and when he gets married
—>A has an executory interest
—>Grantor has a fee simple subject to an executory interest; if A gets married, possession springs from grantor to A

1200

RULE AGAINST PERPETUITIES (RAP)

No property interest is valid unless it must vest, if at all, no later than 21 years after the death of a life in being at the time the interest was created.
>i.e., a future interest is void if there is any possibility, no matter how remote, that it will vest more than 21 years after the death of the measuring life
–> The measuring life = a life “in being” at the time the interest was created

> RAP applies to:
(a) Contingent remainders
(b) Executory interests
(c) Vested remainders subject to open
(d) Options and rights of first refusal
(e) Powers of appointment

Analyzing a conveyance subject to RAP
(1) Determine the interest being granted
(2) Apply RAP to any interest for which RAP applies
(3) If the conveyance violates RAP, strike only the violating portion
–>What remains = the new conveyance

**Many states have reformed the common law RAP, providing for an alternative vesting period greater than 21 years
> Unless instructed otherwise, apply common law RAP

1300

SPECIAL CONSIDERATIONS REGARDING RAP

Rights of first refusal - contingent interests in property (i.e., options and rights of first refusal) violate RAP if they could be exercised outside the time allowed by RAP

Class gifts & RAP - for class gifts to satisfy RAP, class must be closed with all conditions precedent satisfied for every member
>Rule of convenience for class gifts may save a class conveyance that would otherwise violate RAP
> Examples of RAP violations:
(1) Age contingency beyond 21 - if the class conveyance is contingent on members reaching 21 it violates RAP
(2) Fertile octogenarian- presumption that women are capable of having children regardless of her age

1400

TENANCY IN COMMON

An estate with multiple tenants in which co-tenants own an individual part and each has a right to possess the whole

Characteristics:
>Freedly transferable - each interest is freely descendible, devisable, and alienable
>Co-tenants only share the right to possession
>No survivorship rights - co-tenants rights can be transferred to heirs upon their death
>Partition - a co-tenant can force partition at any time and take sole ownership of her share in the estate while remaining parties hold their interest as tenants in common
>Modern law favors tenancy in common; it is the default concurrent estate.

PROPERTY 2

100

JOINT TENANCY

Creation - four conditions must concurrently exist when the tenants take their interest:
(1) Time - JT must take interest at the same time
(2) Tile - JT must receive conveyance through the same instrument
(3) Interest - JT must take equal and identical interests
(4) Possession - JT must have equal possessory rights

> Express intent required - grantor must expressly intend to create a JT; otherwise, a tenancy in common is presumed
Right of survivorship - if one JT dies, surviving JTs automatically take equal possession of deceased JTs share
Transferability - alienable, but not advisable or descendible

Severance & Transfer of Interests:
>Severance - severance by any JT creates a tenancy in common with respect to severed interest
>Transfer of interest - a JT interest becomes a tenancy in common upon transfer; this does not destroy the entire joint tenancy if two or more JTs remain
>Mortgaging a JT - lien their (majority) v. title theory (minority
—>Lien theory Jurisdiction - JT can take a mortgage on her interest without severing JT (b/c no title passes to mortgagee)
—>Title theory jurisdiction - JT is severed if any JT takes a mortgage on her interest because title passes to the mortgagee

200

TENANCY BY THE ENTIRETY

Marital estate, similar ro joint tenancy, but between husband and wife
>Created by conveyance to a married couple; requires the same four conditions as a JT (time, title, interest, possession)
>Spouses are co-tenants; tenancy by the entirety is presumed in any conveyance made jointly to husband and wife
>Only recognized in certain common law jurisdiction

Characteristics:
>Right to survivorship - property automatically passes to the surviving spouse
>No right of partition - One spouse may not unilaterally convey her interest; attempt to do so is invalid and will not destroy the tenancy
>Protected from creditors - creditors of one spouse cannot reach that spouse’s interest; only creditors of the couple (i.e., joint creditors) can reach a tenancy by the entirety

Severance- four ways to sever
(1) Death of one co-tenant
(2) Mutual Agreement of the parties in writing
(3) Issuance of a divorce decree
(4) Execution by a joint creditor (e.g., foreclosure)

300

LAND SALE CONTRACTS & CONVEYANCE

Land Sale Contracts - subject to the SOF and must be:
(1) In writing
(2) Signed by parties to be bound
(3) Articulate the essential terms (e.g., consideration to be paid, description of the land)

Exception - Partial Performance
> A land sale contract is outside the SOF if the buyer takes possession of the land and either:
(a) Pays all or part of the purchase price, or
(b) Makes substantial improvements

Land Sale Process:
(1) Contract - agreements to buy/sell land
(2) Escrow period - transfer of funds through escrow
(3) Closing - escrow completion to deed transfer
(4) Conveyance - successful deed transfer, upon which property is conveyed to the new owner

400

EQUITABLE CONVERSION & RISK OF LOSS IN LAND SALE CONTRACTS

Equitable Conversion - during escrow (after the land sale contract but before deed delivery), the buyer owns the real property, but the seller owns the personal property (the right to proceeds of the sale)
>Seller holds legal title in trust for the buyer

Death of a party - if the buyer or seller dies before closing, rights to the contract pass according to the interest held
>Seller interest passes as personal
—>I.e., sellers heirs can sue for sale proceeds
>Buyers interest passes as real property
—> Buyers heirs can sue for delivery

Risk of loss - if the property is destroyed before closing through no fault of the parties, the buyer bears the risk of loss
>Parties can contract differently
>Seller must credit any insurance proceeds from the loss against the purchase price.

500

Co-tenant’s Rights & Duties

The following rules apply to concurrent estate tenants
(1) Posession - each co-tenant has rights to possess the whole
(2) Rent from a co-tenant in exclusive possession - a co-tenant in exclusive possession is not liable to co-tenants for rent
(3) Rent fro third parties - a co-tenant leasing premises out must account to co-tenants for their share of rental income
(4) Adverse Posession - tenants my not acquire title tot he exclusion of co-tennts through adverse possession
(5) Carrying costs - each tenant is responsible for his fair share of taxes, interests, etc.
(6) Repairs - co-tenants may seek contribution for reasonable repairs, but must inform co-tenants before making repairs
(7) Improvements - no right to contribution for improvements; but co-tenants are entitled to credit for an increase in value attributable to the improvement (and also liable for any resulting loss
(8) Waste - a co-tenant can bring an action for waste against another co-tenant during the life of the tenancy
(9) Partition/forced sale - JT’s and tenants in common may bring an action for partition, or seek a forced sale and appropriation the proceeds.

600

IMPLIED PROMISES IN LAND SALE CONTRACTS: MARKETABLE TITLE & STATEMENTS OF MATERIAL FACT

Every land sale contract contains two implied promises:

(1) Promises to provide a marketable title
—>Promises that title is free from risk of litigation
—>Defects rendering title unmarketable:
(a) Acquired by adverse possession
(b) Encumbered by interests (e.g., servitude, mortgage, future interest); but seller has the right to satisfy outstanding mortgagees or liens with sale proceeds
(c) Zoning ordinance violations existing at sale

(2) Promises to disclose & make no material false statements
>Seller must not materially misrepresent facts or make false statements concerning the property
—> Seller must disclose latent material defects
—> Seller cannot limit liability through disclaimers
—> New property - seller/builder is subject to an implied warranty of fitness/quality in construction

Remedy for breach - buyer must notify seller before closing and give reasonable time for the seller to cure defects
>If the seller fails to cure, the buyer can rescind, file for damages, demand specific performance, or file suit to quiet the title
>If the buyer fails to notify the seller before closing, the contract merges with the deed and the seller is not liable

700

DEEDS

A deed passes legal title from the seller to the buyer

Requirements - to be effective, a deed must be:
(1) Lawfully executed - deed must be signed by the grantor and must reasonably identify the parties and the land
(2) Delivered - requires intent to be bound by the conveyance
- Title passes upon effective delivery; cannot be rescinded
- Present intent controls; physical transfer not required
- Acceptance - The grantee must accept the deed; acceptance is usually presumed upon valid delivery
-Rejection by grantee = ineffective delivery

Three types of deeds:
(1) General Warranty - includes six covenants for title
(2) Special warranty - Grantor assures that:
(a) he has not conveyed the land to another
(b) The land is free from encumbrances made by the grantor
(3) Quitclaim - transfers whatever interest grantor purports to have in property

800

GENERAL WARRANTY DEEDS & COVENANTS FOR TITLE

General warranty deeds include six covenants for title:

Present covenants (only breached at the time of delivery):
(1) Seisin - grantor covenants that he is the rightful owner (i.e., has title, possession) and that the deed covers the described land
(2) Right to convey - grantor covenants that he has the right to convey
(3) Against encumbrances - grantor covenants that the land is free from encumbrances (e.g., servitudes, mortgages)

Future covenants (only breached after delivery):
(4) Quiet enjoyment - grantor covenants that grantee will not be disturbed by a third party’s claim of lawful title
(5) Warranty - grantor agrees to defend against lawful claims of title by others
(6) Further assurances - grantor promises to perform future acts reasonably necessary to perfect the title conveyed.

900

BONA FIDE PURCHASERS FOR VALUE

A BFP purchases property for value (i.e., gives pecuniary consideration) without notice of prior conveyance.

Purchasers:
> Include mortgagees for value
>Does not include donees, heirs, or devisees
—> Not protected by the recording statutes unless the shelter rule applies

Notice - A buyer has notice of a prior conveyance by:
>Actual notice - actual knowledge from any source
>Inquiry notice or constructive notice- what a reasonable inspection of the land would reveal (regardless of whether the buyer actually inspects)
>Record notice - KNowledge from a routine title search
—> E.g., a previous conveyance properly recorded in the chain of title (not a wild deed)

1000

RECORDING STATUTES

If a prior conveyance or interest is not recorded, a subsequent purchaser/mortgagee may be protected under a recording statute
> Level of protection depends on the type of recording statute

Notice Statutes - subsequent BFP always prevails
>Whether or not she recorded first, a subsequent BFP always prevails over a prior grantee who fails to record
>Sample language: “No conveyance or mortgage of an interest in land shall be valid against any subsequent purchaser for value without notice unless it is recorded.

Race-notice statutes - First subsequent BFP to record prevails
>Sample language: “No conveyance or mortgage of an interest in land shall be valid against any subsequent purchaser for value without notice thereof whose conveyance is first recorded”

Race Statutes - first grantee to record prevails, regardless of whether the buyer is a BFP
> E.g., a non-BFP purchaser who records first prevails over BFP
> Sample language: “ No conveyance or mortgage of an interest in land shall be valid against a subsequent purchaser whose conveyance is first recorded”

1100

CHAIN OF TITLE PROBLEMS: SHELTER RULE, WILD DEEDS ESTOPPEL BY DEED

Issues that can arise with recording statutes and chain of title

Shelter rule - one who takes from a BFP will prevail against any interest the transferor-BFP would have prevailed against, even if the transferee had actual notice of a prior conveyance
> Protect donees, heirs, or devisees of BFPs who cannot qualify as BFPs and would not otherwise receive protection under notice or race-notice statutes

Wild deed - a recorded deed unconnected to the chain of title (e.g., due to a clerk’s filing error)
>Recird notice cannot be derived from a wild deed.

Estoppel by deed - wh who conveys land in which she has no interest is estopped from denying the validity of the conveyance if she subsequently acquires the same interest
>Prevents one from fraudulently conveying land and later validly acquiring it (i.e., laundering title).

1200

LATERAL & SUBJACENT SUPPORT

Lateral Support:
> Ownership of land includes the right to have land supported in its natural state by adjoining land; landowners can be liable for excavations that cause damage to adjacent land
> P can bring claims under two types of liability
(1) Negligence - if the adjacent landowner’s excavation causes damage to developed land, the excavating owner is only liable if he acted negligently
(2) Strict liability - P must show his land would have collapsed, even if in its natural state due to D’s excavations

Subjacent Support:
> Underground (subjacent) structures must support surface structures existing when the subjacent estate was created
—> Subjacent owners are strictly liable for failure to support pre-existing surface structures
>Negligence standard applies for subjacent structures erected prior to surface structures
>Subjacent structures inside parking garages, tunnels, mines, etc.

1300

WATER RIGHTS IN WATERCOURSES

Land bordering watercourses (natural or artificial bodies of water, e.g., lakes and rivers) is governed by either the riparian doctrine or the prior appropriation doctrine.

Riparian doctrine - water belongs to those who own land bordering the watercourse. Two theories:

(1) Reasonable use theory (majority) - riparian owners share rights to reasonable use and are reliable to the other owners if their use unreasonably interferes with either owner’s use
—>Balance utility of use vs. gravity of harm

(2) Natural flow theory (minority) - riparian owners may be enjoined for any use resulting in a substantial or material reduction in other’s water quantity or quality
> Natural users prevail over artificial uses (under both theories)

Prior appropriation doctrine - water rights are required by actual use
>Priority of beneficial use determines rights to water
—> E.g., the first individual to make a beneficial use of water (i.e., productive use) has superior legal rights to use it.

1400

WATER RIGHTS IN GROUNDWATER & SURFACE WATER

Groundwater - water beneath the surface not confined to a known channel (e.g., water in wells)
>Surface owner is entitled to make reasonable use of groundwater, but must not be wasteful (majority)

Surface water - water from rain, springs, or other runoff that has not yet reached a natural watercourse
>Landowners can generally use surface waters as they please but may be liable for interrupting its flow.
>Liabilty depends on which theory applies:
—> Natural flow theory - owners cannot unreasonably alter natural drainage
—>Common enemy theory - owners can do anything to change drainage or combat flow unless it causes unnecessary damage to other’s land
—>Reasonable use theory - utility of use is balanced against the gravity of harm from that use.

EVIDENCE 1

100

LOGICAL RELEVANCE

Evidence is relevant if it tends to make the existence of any fact of consequence more or less probable than it would be without the evidence
> Irrelevant evidence is inadmissible
> Relevant evidence may be admissible
> *Note - logical relevance is not equal to probative value (i.e., evidence can have high relevance but low probative value)

Limitations on relevance
> Discretionary exclusion - courts can exclude relevant by its danger of unfair prejudice or confusion
> Public policy exclusions - evidence of liability insurance, subsequent remedial measures, settlement offers, guilty pleas withdrawn, and offers to pay medical expenses may be excluded despite its relevance

200

DISCRETIONARY EXCLUSION OF RELEVANT EVIDENCE

A court may exclude logically relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, undue delay, or waste of time
> This often arises with evidence that is:
—> Emotionally disturbing
—> Repetitive or confusing
—-> Admissible for one purpose but inadmissible for another (court excludes to avoid the risk of the jury using evidence for the improper purpose)

>

• Note - unfair surprise to a party or witness is not a valid ground for excluding relevant evidence

> Balancing test - for courts to exclude, probative value must be substantially outweighed by the danger of unfair prejudice
—> * Note - memorize this standard; wrong MBE answer choices may use similar, but incorrect language

> Exceptions -impeachments evidence based on convictions for crimes involving false statements is not subject to discretionary exclusion

300

EXCLUSION OF RELEVANT EVIDENCE ON PUBLIC POLICY GROUNDS

Liability insurance - evidence of liability insurance is not admissible to prove fault or a party’s ability to pay damages
> Evidence of insurance is admissible to prove anything else (i.e., ownership, control, etc.)

Subsequent remedial measures -evidence of repairs or other remedial measures taken after an injury is inadmissible to prove fault, defect, or inadequate warning
> Remedial measures evidence is admissible to rebut a defense that there was no feasible precaution

Settlements, offers to settle & plea bargaining
> Civil Cases - compromises, offers to settle, or related statements are inadmissible to prove liability or fault
—> Does not include statements made before the claim or threat of litigation was asserted
> Criminal cases - pleas, offers to plea, and related statements are inadmissible to prove guilt

Payments of offers to pay medical expenses - inadmissible when offered to prove liability for injuries
> Related statements are admissible (distinguish this from settlement offers)
> An offer to pay medical expenses in exchange for releasing liability is inadmissible - it is considered a settlement offer, not an offer to pay medical expenses.

400

SIMILAR OCCURRENCES & HABIT

Similar occurrences - evidence of similar events occurring outside of the present litigation is usually inadmissible, but can be relevant if used for non-propensity purposes
> Similar occurrences may be admissible to prove:
(1) Causation
(2) Prior accidents demonstrating:
(a) A pattern of fraudulent claims
(b) Pre-existing conditions
(3) Intent or absence of mistake
(4) To rebut a defense of impossibility
(5) Value (e.g., similar transactions can establish value)
(6) Industry custom (to prove standard of care)

Habit - a person’s habit may be relevant and admissible to show that the person acted in conformity with that habit on a given occasion
> Conduct must be particular and frequently repeated (i.e., a person’s regular response to a specific set of circumstances)
> Look for regular, instinctive, habitual conduct
> E.g., evidence that a person habitually goes down a particular stairwell two steps at a time could be admissible as circumstantial evidence that she did so at the time in question.

500

HEARSAY

Hearsay (out-of-court statements that are offered to prove the truth of the matter asserted) is generally inadmissible, subject to exceptions
> Statements - an oral or written assertion, or nonverbal conduct intended as an assertion
—> Non-human assertions are not statements (e.g., test results, radar gun reading, dog barking)

Exemptions vs Exceptions - federal rules create both exceptions and exemptions to the hearsay ban:
> Exemptions - deemed “non-hearsay” and thus are admitted
> Exceptions - deemed hearsay, but are still admitted
> *Note - distinguish between answer choices that turn on this distinction, such as “hearsay but admissible” or “not hearsay and admissible”
—> Beyond this distinction, there are no practical differences between hearsay exceptions and exemptions; they should be treated as the same

> **Note - Witnesses’ own previous out-of-court statement can be hearsay; thus an answer that a statement is “not hearsay because it is witness’s own statement” is incorrect

600

VALID NON-HEARSAY USES OF OUT-OF-COURT STATEMENTS

Out-of-court statements are not hearsay if offered to prove anything other than the truth of the matter they assert

Common non-hearsay uses of out-of-court statements:
(1) Statements of independent legal significance
—> Statements containing legally operative words, such that the statements itself is a legal factor in the case
> Common with defamation, contract, and adverse possession cases
> E.g., in a contract dispute, A testifies that B told him it was a “done deal”
(2) Statements offered to show their effect on the listener
—> E.g., comparative negligence claim - statements by third party warning P of the injury-causing condition
(3) Statements offered to show the speaker’s knowledge
—> E.g., D charged with conspiracy, claims he did not know about the crime; an out-of-court statement indicating D has been told about specifics of the crime will be admissible, indicating he knew it was being planned
(4) Statements offered to show state of mind
—> E.g., a statement by D before committing a crime indicating he might have been insane

700

HEARSAY EXEMPTIONS

There are four exemptions to the ban on hearsay

(1) Admissions - out-of-court statements by a party are admissible if offered against that party
—> Judicial Admissions - made in pleading or testimony
—> Adoptive Admissions - acquiescence in another’s statement
> Silence can be an admission if:
(1) The party heard, understood, and was capable of responding to a statement, and
(2) A reasonable person in the party’s position would have responded
—> Vicarious admissions - made by agent or employee
—> Co-conspirator admissions - co-conspirator’s statements are admissible against the defendant if made in furtherance of the conspiracy

(2) Prior inconsistent statements given under oath

(3) Prior consistent statement - if offered to rebut a charge of fabrication, improper bias, or improper motive

(4) Prior statement of identification after perception
—> E.g., “The red Honda just hit me and fled the scene!”

800

COMPLETE LIST OF HEARSAY EXCEPTIONS

Exceptions - declarant unavailability is required
(1) Former testimony exception
(2) Statements against interest
(3) Dying Declarations
(4) Statements of personal or family history
(5) Statements offered against party procuring declarant’s unavailability

Exceptions - declarant unavailability is immaterial
(1) Present state of mind
(2) Excited utterances
(3) Present Sense Impressions
(4) Physical condition (for medical diagnosis or treatment)
(5) Past recollection recorded
(6) Business records
(7) Public records or reports
(8) Judgments and prior convictions
(9) Ancient documents
(10) Documents affecting property interests
(11) Learned treatises
(12) Family records
(13) Market reports

900

EXCEPTIONS REQUIRING DECLARANT UNAVAILABILITY

The declarant must be unavailable for these exceptions to apply
(1) Former testimony
(2) Statements against interest
(3) Dying declarations
(4) Statements of personal or family history
(5) Statements offered against the party procuring the declarant’s unavailability

Unavailability
> “Unavailability” refers to the declarant’s testimony
—> E.g., a declarant can be in court, but her testimony is “unavailable” because she asserts a valid privilege
> A declarant is unavailable if:
(a) Privilege - exempt from testifying due to a privilege
(b) Death or physical/mental sickness
(c) Refusal to testify despite a court order
(d) Lack of memory
(e) Absent - beyond reach of court’s subpoena power

EVIDENCE 2

100

FORMER TESTIMONY

Testimony given by a person in an earlier proceeding or deposition may be admissible

Requirements:
(1) Declarant is currently unavailable
(2) Declarant’s prior testimony was given under oath
(3) The party against whom testimony is now offered was either:
(a) A party in the previous action and had an opportunity to cross-examine the declarant
—> The motive for cross-examining the declarant in the former hearing must be similar to the current motive
(b) A predecessor in interest of a party in the previous action, in which there was an opportunity to cross-examine the declarant and a similar motive for doing so
—> Applicable in civil actions only
—> Predecessor in interest is one who has a close privity type relationship with the party in the earlier proceeding

** Note - the MBE tests this exception; remember that it only applies if the declarant is currently unavailable and the prior testimony was under oath

200

STATEMENTS AGAINST INTEREST

A hearsay statement is admissible if, at the time it was made, it was against the pecuniary or legal interest of the declarant

Requirements:
(1) Declarant is currently unavailable
(2) The statement was contrary to the declarant’s pecuniary, proprietary, or penal interest when made
(3) A reasonable person would not have made the statement unless he believed it to be true
> Criminal cases only - must be corroborating circumstances indicating the trustworthiness of the statement

Distinguish from party-opponent admissions
> A party-opponent admission is a statement of a party or a vicarious statement attributable to that party
—> No requirement that the statement is against the declarant’s interest
> A statement against interests is any statement against the declarant; ‘s interest at the time it was made
—> No requirement that the declarant is a party in the proceeding.

300

DYING DECLARATIONS

A hearsay statement is admissible in civil cases or homicide cases if the declarant made the statement under the belief of impending death and the statement describes the cause or circumstances of the impending death

Requirements:
(1) Declarant is currently unavailable
(2) The out-of-court statement was made under the belief of impending death
(3) The statement was made regarding the cause or circumstances surrounding the belief of impending death
> Death of declarant is not required
—> Declarant must only have believed that he was dying when the statement was made

Only available in:
> Civil cases
> Homicide cases

400

PRESENT SENSE IMPRESSIONS & EXCITED UTTERANCE

Present sense impression
> A hearsay statement is admissible if it:
(1) Describes or explains an event or condition, and
(2) Is made contemporaneously with the event or immediately thereafter
> Timing is key - the statement must be made while, or immediately after, the declarant perceives the condition or event described in the statement

Excited utterance
> A hearsay statement is admissible if it:
(1) Relates to a startling or exciting event or condition, and
(2) Was made while the declarant was under the stress or excitement of the event
> Declarant’s emotional state is key - the declarant must be under such excitement or stress that one would not normally have an opportunity to fabricate the statement.

500

STATEMENTS CONCERNING DECLARANT’S THEN-EXISTING STATE OF MIND OR PHYSICAL CONDITION

Hearsay statements are admissible if they concern a declarant’s state of mind, emotion, sensation, or physical condition existing at the time the statement was made

Statement of then-existing state of mind - usually offered to show a declarant’s intent at the time the statement was made or as circumstantial evidence that an event was carried out

Statement of then-existing condition - usually offered to establish some physical condition, symptom, or sensation that declarant experienced at the time of the statement

Items to note:
> Statements must concern a then-existing condition or mental state
> Statements of memory or belief are inadmissible because they do not reflect on a then-existing condition
> Statements of intent may be admissible as circumstantial evidence that an act was committed at a later time

600

STATEMENTS OF PHYSICAL CONDITION FOR DIAGNOSIS OR TREATMENT

Hearsay statements made to medical personnel for the purpose of diagnosis or treatment may be admissible

Requirements:
(1) A statement must be made to medical personnel
—> Medical personnel: anyone involved in the treatment in treatment or diagnosis; not necessarily a doctor
(2) The statement must be pertinent to assisting in the diagnosis or treatment of a condition
—> Related statements about an injury-causing event are usually inadmissible
> E.g., statements by the declarant to an emergency room doctor that she was shot will be admissible, but the identity of the shooter will not, as it is not pertinent to treatment
> Includes statements of past conditions if the statement is made for the purpose of diagnosis or treatment

700

BUSINESS RECORDS EXCEPTION

Requirements - hearsay statements in the form of business records are admissible if they are:
(1) A record or transaction made or recorded by a business
—> E.g., transactions, reports, patient records
(2) Made in the regular course of business
(3) Made a or near the time of the matters described
(4) Made by any employee with personal knowledge of the facts recorded
(5) Authenticated or certified in writing
> Courts may exclude an otherwise qualifying business record if the source of information or other circumstances indicate a lack of trustworthiness

Police report - in criminal cases, police reports or other criminal investigative reports are inadmissible as business records or public records.

Multiple hearsay issues - business records often involve multiple layers of hearsay
> E.g., minutes of a business meeting with a secretary’s notes of participant’s statements - secretary’s notes are one level of hearsay; participant’s statements are another
>Every level of hearsay must fall into some exception or exemption to be admissible

800

PUBLIC RECORDS EXCEPTION, JUDGMENTS, & PRIOR CONVICTIONS

Public Records - public office or agency records are admissible if the record:
(1) Describes the activities of a public office or agency
(2) Describes either
(a) Matters observed pursuant to a duty imposed by law, r
(b) factual findings resulting from an investigation made pursuant to authority granted by law
(3) Made within the scope of duty of the public employee-author and made at or near the time of the event
> Court may exclude an otherwise qualifying business record if the source of information or other circumstances indicate a lack of trustworthiness

Limitation - in criminal cases, police records or other criminal investigative reports are inadmissible

Judgments & prior convictions
> Certified copies of judgments are admissible in both civil and criminal cases to prove any fact essential to the judgment
> Prior convictions are inadmissible in criminal cases against non-defendant unless used for impeachment

900

MISCELLANEOUS HEARSAY EXCEPTIONS

Learned treatises - arise with expert testimony only
> Learned treatises are accepted authority in a given field
—> Established as reliable and accepted authority by testimony, admission, or judicial notice
> Experts can rely on learned treatises on direct examination or can be impeached with information from treatises on cross-examination
> If admissible, statements from learned treatises may be read into evidence only

Family records - statements of fact found in family keepsakes, (e.g., jewelry engravings and genealogies)

Ancient documents - a form of documentary evidence

TORTS

100

NEGLIGENCE: PRIMA FACIE CASE

Elements:
(1) Duty of care
(2) Breach of duty
(3) Causation
—> Actual cause and proximate cause
—> * Note - the MBE may refer to actual causes as “cause-in-fact” or “factual cause,” and proximate cause as “legal cause”
(4) Damages

Negligence basics
>Negligence is analyzed under an objective standard by comparing D’s actions to a reasonable person under similar circumstances
—>I.e., negligence law assesses D’s behavior based on the common judgment of a collective of people
> Assess D’s behavior given the circumstances under which she acted

200

DUTY OF CARE

D owes a duty of care to all foreseeable victims of his activities

Default duty of care - reasonably prudent person (RPP)
>D’s duty is to behave like a reasonably prudent person under the circumstances
—> RPP is considered to be someone with D’s physical characteristics but with the knowledge and mental capacity of an ordinary person

Foreseeable victims - those within the zone of danger
>Zone of danger = the area around D’s activities in which a P could foreseeably be injured
>Rescuer’s exception - If D puts himself or another in danger and a third person attempts to rescue, D can be held liable for the rescuer’s injuries, even if unforeseeable
—> Does not apply to firefighters or police
>Prenatal injury - a duty of care is owed to a viable fetus
>Intended economic beneficiaries - a duty of care is owed to third-party beneficiaries if their harm is foreseeable

300

SPECIALIZED STANDARD OF CARE

Children - held to the standard of care of a like child of similar age, education, intelligence, and experience (subjective test)
> Generally, children under seven lack the capacity to be held negligent

Common carriers & innkeepers - held to an “utmost care” standard
> Liabe liable for even the slightest negligence to passengers or guests

Custom or usage in an industry - can be used to establish a standard of care, but failure to adhere does not automatically give rise to a breach of duty

Professionals - expected to act with the care of an average member of the profession in good standing in similar communities
> Specialists (e.g., neurosurgeons) are held to a national standard of care

400

STATUTORY STANDARD OF CARE

An existing statute may establish a duty of care, in which case the specific duty imposed y the statute will replace the general common law duty of due care

Requirements:
(1) The statute provides a criminal penalty
(2) Standard of conduct is clearly defined in the statute
(3) P is within the class of people the statute was designed to protect
(4) The statute was designed to protect against the type of harm P suffered

Violation of statutory standard of care - negligence per see
>Generally, violation of the statute is negligence per se, meaning P must only prove causation, not breach of duty
>Comlaince does not automatically clear D of liability

Statutory standard of care does not apply if:
(a) Compliance is more dangerous than non-compliance
(b) Compliance is impossible under the circumstances

500

DUTY OF CARE FOR OWNERS & OCCUPIERS OF LAND TO TRESPASSERS

Owners and occupiers of land may have a duty of care for anticipated trespassers and child trespassers
> same standard of care for owners and occupiers

Unknown or undiscovered trespassers - no duty owed

Anticipated trespassers - where the owner has reason to believe the trespasser on her land
> Activities - The owner has the duty of reasonable care in carrying out activities on her property
> Dangerous conditions - owner has a duty to make safe or warn of any known, concealed, man-made hazards
—> Note - this is rare; look for spring guns, traps, etc.

Attractive nuisance doctrine for child trespassers
> The owner must take reasonable care to eliminate dangers on her property or protect children from those dangers if:
(1) She is aware or should be aware of a dangerous condition (natural or artificial) on her property
(2) She knows or should know children are in the vicinity
(3) The condition is likely to cause injury if encountered
(4) The magnitude of the risk outweighs its utility or the expense of remedying it

600

DUTY OF CARE FOR OWNERS & OCCUPIERS OF LAND TO LICENSE & INVITEES

Licensee - one who enters land with owner’s permission for his own purpose or business (i.e., not for landowners benefit)
> E.g., relatives, friends, social guests

Invitee - one who enters land held open to the public or who enters with the owner’s permission to confer a commercial benefit
>E,g., store patron, concert-goer, door-to-door salesperson

Duty of care owed:
> Activities carried out on property - reasonable care
>Known dangerous conditions - duty to warn or make safe
>Duty to inspect -n/a for licenses
—>Invitees - owners have a duty to conduct a reasonable inspection for non-obvious dangers and make them safe
—>*Note - this is the only significant difference between duties for licensees and invitees

Scope of duty - limited by scope of the invitation/license
>Owner’s duty extends only to those areas where one is an invitee or licensee (e.g., store owner does not owe duty of care in employees-only area

**Note - police and firfighters are considered licensees, but cannot recover for injuries on the job

700

BREACH OF DUTY

D breaches his duty when his conduct falls short of the standard of care owed under the circumstances

To demonstrate a breach, P can argue:
(a) D breached the applicable standard of care - includes:
—>RPP standard
—> Negligence per se - violation of a relevant statute
—> Specialized standard of care
—> Custom or usage in an industry - an automatic breach, but may be relevant

(b) Res ipsa loquitor - the very occurrence of the accident causing P’s injuries suggests negligent conduct
—> Arises if facts cannot establish a breach of duty because circumstances surrounding events are unknown to P
—> Requirements - Pmust show:
(1) Inference of negligence - the harm would not have occurred absent negligence
(2) Attributable to D - this type of harm normally results from negligence by one in D’s position
> Often satisfied by showing injury-causing instrument was in D’s exclusive control
(3) Injury was not attributable to the plaintiff

800

ACTUAL CAUSE

Establishes a causal connection between the alleged breach of duty and the resulting injury

“But for” test - but for D’s alleged breach of duty, P’s injury would not have occurred

Substantial factor test - for multiple causes of P’s injury
> D’s breach is the actual cause if it was a substantial factor in bringing about P’s injury
> Used if multiple causes bring about P’s injury and any of them alone would have caused the injury
—> E.g., a fire starts on D1’s land and D2’s land, each of which spreads to P’s land and destroys P’s house

Burden shifting test - for several possible causes for P’s injury
>Used if multiple D’s act (often simultaneously), only one causes P’s injury, but it is unclear which D caused the injury
—->E.g., P is hit by a stray bullet at a busy firing range and its unknown which shooter hit P
> The burden of proving the actual cause shifts to Ds
—>If no D can prove another D was responsible, all D’s are jointly and severally liable

**Note - MBE may refer to actual cause as “cause-in-fact”

900

PROXIMATE CAUSE

Establishes that it is fair under the law to hold D responsible for P’s injuries

Foreseeability - measuring stick for proximate cause
> D is liable for the foreseeable outcome of his conduct

Direct causes - If P’s injury is the direct consequence of D’s negligent conduct, D is liable unless the outcome is unusually bizarre or unpredictable

Indirect/Intervening causes - where contributing acts occur between D’s conduct and P’s injuries
> D is usually liable if the injury could have possibly resulted even without the intervening forces
> Approach - consider the type of harm being protected against by holding D negligent for his conduct
—> If P’s resulting injury is the type of harm being protected against, D’s conduct is the foreseeable, legal cause of P’s injury

“Eggshell Plaintiff Rule” - D takes P as he finds him and is liable for the full extent of P’s injuries, regardless of whether they are foreseeable

1000

DAMAGES

P must prove damages, which are not presumed in negligence cases; nominal damages are not available

Types of damages:
> Personal injury - D must compensate P for all damages
—> Includes past, present, and prospective damages
—> Economic and non-economic damages are recoverable

> Property damage - P can recover reasonable cost of repair
—> If property is irreparable, damages = full market value at the time the accident occurred

> Punitive damages - only recoverable if D’s conduct is wanton and willful, reckless, or malicious

Non-recoverable damages - P can never recover for:
> Interest from the date of damage in personal injury cases
> Attorneys’ fees

Duty to mitigate - P has a duty to take reasonable steps to mitigate damages

1100

AFFIRMATIVE DEFENSES: COMPARATIVE & CONTRIBUTORY NEGLIGENCE, ASSUMPTION OF RISK

Comparative negligence - D can establish that P’s injuries are at least partially the result of P’s own negligence
> Court apportions fault between P and D and reduces P’s recoverable damages accordingly
> Partial/modified comparative negligence - P can only recover damages if he was less than 50% at fault
> Pure comparative negligence - P can recover damages even if he was more than 50% at fault

Contributory negligence - P is barred from recovery if D establishes that P’s negligence contributed to her injuries
> Last clear chance defense - P can rebut D’s contributory negligence claim by alleging D had the last clear chance to avoid the injury-causing accident

SAssumption of risk - D can deny P’s recovery by establishing that P assumed the risk of damage caused by D’s act
> Requirements - D must show:
(1) P knew or should have known the risk (objective standard)
(2) P voluntarily proceeded in the face of that risk

** Note - defenses vary by state; MBE questions usually note what defenses apply; otherwise assume pure comparative negligence

1200

NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

P may recover for emotional distress resulting from D’s negligence, but only if P’s emotional distress gives rise to some physical manifestation

Elements:
(1) D’s negligence results in a close risk of bodily harm to P
—> P must be in a “zone of danger” to recover
—> I.e., D’s act must have nearly caused physical harm to P
(2) D’s negligence results in P’s severe emotional distress
(3) P exhibits some physical manifestation attributable to her emotional distress
—> E.g., heart attack, miscarriage
> Non-physical symptoms like depression or nightmares are insufficient
—> Symptoms of the physical manifestation can be instantaneous or appear days later

Bystander claims - bystanders may be liable to recover for emotional distress resulting from D’s negligence

CONTRACTS

100

OFFER

An objective manifestation of a present intent to contract
>Demonstrated by a promise, undertaking, or commitment; definite and certain terms; and communication to an offeree
>Creates power of acceptance in the offeree

Objective manifestation of intent - The offer must give the offeree a reasonable expectation that the offeror is willing to enter into a contract
> Would a reasonable person believe the communication is an offer inviting acceptance?

Definite and certain terms required - enough essential terms must be included to allow a court to enforce the contract
> Vague terms or terms of negotiation not allowed
> Real estate - requires price and identification of land

Communication to an identified offeree - The offeree must know of the offer and have the power to accept it
> Advertisement - generally not offers, unless highly specific as to quantity and clearly indicate who may accept

UCC offers:
> Quantity must be certain or capable of being made certain
—> Requirement/output contracts - no unreasonably disproportionate increase in quantity allowed
> Missing terms OK if it appears parties intend to make a contract and there is a reasonably certain basis for giving a remedy

200

TERMINATION OF OFFER

An offer may be terminated by an act of a party or by operation of law

Acts of parties:
(1) Revocation by offeror
(2) Rejection by offeree
(3) Lapse of time

OPeration of law:
(1) Death or insanity of either party
(2) Destruction of proposed contract’s subject matter
(3) Supervening illegality

300

REVOCATION OF OFFERS, IRREVOCABLE OFFERS, & OPTIONS

An offeror may revoke her offer, which effectively terminates the offer and the offeree’s power of acceptance

Methods of revocation
(1) Unambiguous statement by the offeror to the offeree
(2) The offeree becomes aware of the offeror’s unambiguous conduct or statement indicating an unwillingness or inability to contract

Limitations on revocation
> Revocation is only effective upon receipt by the offeree
> Offer cannot be revoked once it has been accepted
> Irrevocable offers - offer is irrevocable if:
(a) Option contract - promise to keep an offer open
> Requires consideration in exchange for the option
(b) UCC firm offers - if a merchant offers to sell goods in a signed writing and gives assurances that the offer will be held open, it is irrevocable for a designated period or up to three months; no consideration is required.
(c) Detrimental reliance by offeree - reliance must be reasonable

Unilateral contracts - the start of performance makes the offer irrevocable for a reasonable time to complete performance
—> The start of the performance must go beyond mere preparation

400

REJECTION OF OFFER

Rejection by offeree terminates the offer and the offerees power of acceptance

Methods of rejection:
(1) Express rejection
(2) Counteroffer - terminates the original offer and becomes a new offer; bargaining is not a counteroffer
—> If response to an offer is a statement - counteroffer
—> If response to an offer is a question - bargaining
(3) Conditional acceptance - temrinates the original offer and becomes a new offer
—> Indicated by terms such as “if,” “only if,” “but,” “provided,” “so long as,” “on condition that,” etc.
(4) Accetance with additional terms (common law only)
—> Common law - acceptance must mirror the offer
—> UCC - if both parties are merchants, additional terms are a “seasonable expression of acceptance” if they do not materially alter the offer and the offeror does not object

500

ACCEPTANCE

A clear expression of assent to the terms of the offer

Common law (“Mirror Image Rule”) - acceptance must mirror the offer’s terms; it cannot omit or add new terms

UCC Acceptance issues
> Acceptance with additional terms - acceptance that proposes additional or different terms is valid unless the acceptance expressly requires assent to the different or additional terms
—> Both parties are merchants - additional terms become part of the contract unless they materially change the offer or the offeror objects within a reasonable time
> Acceptance by prompt shipment - a merchant may accept an offer to buy goods by either:
(a) Providing a promise to ship goods (usually by written confirmation), or
(b) Promptly shipping conforming goods
> Shipment of nonconforming goods may give rise to breach

600

MAILBOX RULES

Offers and acceptances transmitted via mail or other similar methods become effective upon either dispatch or receipt

Offers - effective upon receipt

Acceptance - Effective upon dispatch

Limitations:
> If the offer stipulates acceptance is not effective until received, the offer controls
—> i.e., the offeror can opt out of mailbox rules
> Option contracts - acceptance is effective upon receipt
> If the offeree sends both a rejection and acceptance the first to arrive is controlling

Revocation - mailbox rule does not apply
> Revocation is effective upon receipt

700

ACCEPTANCE BY PERFORMANCE

An offeree may accept by partial performance (for bilateral contracts) or complete performance (for unilateral contracts) unless the acceptance is limited by the term of the offer

Unilateral contracts - complete performance is required
> The offeree is not obligated to complete the performance
> Offereee’s failure to perform does not constitute a breach (because no contract is formed absent complete performance
> Offer may become irrevocable upon the start of performance until completion
> * Notice - The offeree is not required to give notice upon the start of the performance but must notify the offeror within a reasonable time upon completion

Bilateral contracts - partial performance gives rise to acceptance
> Offeree must make offeror aware of acceptance

Offers requiring acceptance by promise
> An offer requiring acceptance by promise may still be accepted by performance if:
(1) The offeree begins to perform
(2) The offeror learns that the offeree has started the performance and acquiesces

*** Note - an offer may always limit methods of acceptance

800

CONSIDERATION & SUBSTITUTES FOR CONSIDERATION

A bargained-for legal detriment incurred by each party to a contract by promise, forbearance, or performance

“Bargained-for legal detriment” - the promise must induce the detriment and the detriment must induce the promise
> Legal detriment - obligation to do or refrain from doing something one would not otherwise be obligated to do or refrain from doing.
> Pre-existing legal duty - a promise to perform a pre-existing legal duty is not valid consideration unless there is a new written promise to fulfill a debt obligation

Substitutes for consideration
> Reliance/estoppel - courts may enforce a promise if:
(1) The promisor reasonably expects reliance by promisee
(2) Promisee acts or refrains from acting such that his reliance is detrimental, and
(3) Injustice will occur without enforcement of the promise
> UCC modifications to contracts - consideration is. not necessary for good-faith written modifications to a contract governed by the UCC
> PAst debts - If a debt is barred by the statute of limitations, a new written promise to fulfill the debt is enforceable without consideration, but only according to the new terms.

900

PERFECT TNDET & REJECTION OF GOODS

The seller’s performance must be perfect with respect to the goods delivered and the manner of delivery

Imperfect tender - buyer can retain or reject nonconforming goods
> If the seller’s performance is not perfect, the buyer can either:
(a) Retain goods delivered and sue for damages, or
(b) Reject some or all goods and sue for damages

Rejection from imperfect tender - buyer must:
(1) Notify seller of rejection in a reasonable time (usually 30 days)
(2) Hold the rejected goods using reasonable care
(30 Give the seller reasonable time to arrange for the removal of goods
—> If the seller gives no information regarding removal, the buyer can return goods to the seller, store the goods for the seller, or resell the goods on behalf of the seller (i.e., for the seller’s profit)

1000

PERFECT TENDER & ACCEPTANCE OF GOODS

Acceptance of goods if either:
(a) Buyer, after a reasonable opportunity to inspect goods, indicates to seller that goods conform or that he will keep them despite nonconformance
—> Payments without an opportunity in inspect is not acceptance
—>If buyer accepts goods, he cannot later reject them
(b) Buyer fails to reject or notify seller of rejection within a reasonable time (no more than one month)

Revocation of acceptance
> Buyer generally cannot reject goods once he has accepted
> Exceptions - buyer can revoke acceptance within a reasonable time after discovering a defect if the defect substantially impairs the goods’ value and either:
(a) Buyer accepted goods on the reasonable belief that defect would be cured and it has not been, or
(b) Buyer was excusably ignorant defect or reasonably relied on seller’s assurance that goods conformed.

1100

PERFECT TENDER & SELLER’S ABILITY TO CURE

If the buyer has notified the seller of imperfect tender (i.e., delivery of nonconforming goods), the seller may have an opportunity to cure

The seller can cure if:
(1) Seller gives buyer notice of intent to cure and time for performance has not yet expired
—> Seller must give the buyer reasonable notice and deliver conforming goods
(2) Seller had reasonable grounds to believe nonconforming goods sent would be acceptable
—> Reasonableness is usually based on the seller’s prior dealings with the buyer
—> Seller will have an additional reasonable time period to tender conforming goods

** Note - buyer cannot compel seller to cure

1200

PERFECT TENDER & INSTALLMENT CONTRACTS

Under an installment contract, a buyer’s ability to reject goods due to imperfect tender is limited

Installment contract - authorizes or requires delivery of goods in separate lots

Rejection - The buyer can only reject a delivery/installment if:
(1) Nonconformity substantially impairs the installment
(2) Nonconformity cannot be cured
> Rejection is limited to nonconforming installment, not the entire contract
—> Buyer can only cancel the entire contract based on a nonconforming installment if that installment substantially impairs the value of the entire contract.

1300

SUBSTANTIAL PERFORMANCE

If one party has substantially performed, the other party is obligated to perform and complete the performance
> i.e., less than-perfect performance by one party does not excuse the other party from his obligation
> “Substantial” is usually considered at least halfway complete
> Thus, substantial performance by A obligates B to perform; but B may seek money damages for the difference between the performance rendered and the performance expected

** Note - look for substantial performance issues in construction contracts or other similar service contracts.

1400

MATERIAL BREACH

Rules concerning common law material breach:
> Material breaches by the other party excuses performance
> Substantially breach does not equal material breach
> Materiality of the breach is a question of fact (and thus less likely to be tested on the MBE)
> Damages are recoverable for any breach

Timelines of performance
> Failure to perform by the time stated in the contract is not a material breach if performance is rendered within reasonable time after the time stated
> Exception - “time is of the essence” clause
—> If timely performance is essential, failure to perform by that time is a material breach
—> Arises if one party indicates as a term of the contract that performance by a given date is essential

• Note - material breach rules do not apply to sales of goods contract

CIVIL PROCEDURE1

100

PERSONAL JURISDICTION OVERVIEW

Personal jurisdiction (“PJ”) involves the court’s ability to exercise authority over parties of their property
> Core concept is fairness - i.e., is it fair for this court to exercise jurisdiction over this defendant>
—> Must balance states’ interest in protecting their citizens with individual due process rights
> Statutory and constitutional constraints can limit the court’s jurisdiction

Analysis - jurisdiction must be statutorily authorized and constitutional
> Statutory - an applicable state law must authorize jurisdiction
—>Usually a long-arm statute will apply
> Constitutional - jurisdiction must satisfy due process
—> Minimum contacts - parties must have minimum contact with the forum state
—> Adequate notice - Parties must receive adequate notice of the action

200

STATUTORY LIMITATIONS ON PERSONAL JURISDICTION

State laws often determine when courts may exercise jurisdiction
> A federal court must analyze jurisdiction as would oa state court in which it sits and must follow applicable state statutes
> * Note - court’s exercise of jurisdiction must also satisfy constitutional requirements

Most state statutes grant courts in personam jurisdiction if either:
(a) Service of process - Defendant is personally served in the forum state
—> Duration of D’s presence is irrelevant
(b) Domicile - D is domiciled in the forum state
—> Domicile = Defendant maintains a permanent home in the forum state
—> Court can exercise jurisdiction over domiciled persons even if they are not physically present when served
(c) Consent - Defendant consents to jurisdiction (can be express or implied)
(d) States Long Arm Statute - Defendant acts fall within the state long-arm statute
—> Most common
—> General/Unlimited long-arm statute - confers state courts with jurisdiction to the extent allowed by the constitution
—> Limited/enumerated long-arm statute - specifies when state courts can exercise jurisdiction

300

TYPES OF PERSONAL JURISDICTION (IN REM, QUASI IN REM, IN PERSONAM)

In rem - jurisdiction over property or status, including ownership disputes
> Courts adjudicate the rights of parties with respect to property
—> Judgment is binding as to the disposition of property rights or status, not as to parties personally
> Property must be physically located in the forum state
> Often involves estate issues, business proceedings, property disputes (e.g., action to quiet title, dissolve marriage, etc.)

Quasi in rem - jurisdiction over persons where property attached
> Property is attached for some reason not necessarily involving property itself - e.g., action against defendant and his assets due to fears defendant will flee the state
> Court may render judgment as to persons with respect to property (rather than judgment over person or property itself)

In personam - jurisdiction over persons
> Court may render judgment (money or injunction) against an individual personally
> Based on the person’s contact with the forum state
> *Note - type of jurisdiction most likely to be tested on the MBE.

400

CONSTITUTIONAL LIMITATIONS ON PERSONAL JURISDICTION

To be subject to PJ, the defendant must have such minimum contact with the forum state that exercising jurisdiction does to offend the traditional notions of fair play and substantial justice.

Analysis - minimum contacts, foreseeability, fairness:
> Minimum contacts - Defendant must have sufficient minimum contacts with the forum state; inquiry focuses on:
—> Purposeful availment - the defendant must purposefully avail herself of the jurisdiction in the forum state (i.e., the defendant must take actions purposefully directed towards the forum state)
—> Forseeabiity - must be foreseeable that the defendant could be held accountable for her in-forum contacts
> Fairplay and Substantial Justice - given the defendant’s contacts, the exercise of jurisdiction must not offend these notions; look at:
—> Relatednes - are defendant contacts related to the claim in the present action?
> Note - this factor also determines whether jurisdiction is general or specific
—> Convenience - would litigating in the forum severely disadvantage the defendant?
—> State’s interest - does the forum state have an interest in providing redress for its residents or an interest in the outcome of the case?
> *Notice - separate constitutional requirements

500

MINIMUM CONTACTS

What constitutes minimum contacts?
(1) Purposeful availment - Defendant must purposefully avail herself of the forum state’s laws, i.e., reach out in a non-accidental manner
—> E.g., using roads, doing business in the state, etc.
(2) Foreseeability - D must know or reasonably anticipate she could be held accountable for her activities in the forum state

Circumstances that give rise to sufficient contacts:
> Domiciled - Defendant is domiciled in the forum state
> Presence - Defendant is present in the forum state when served with process (but not tricked into coming to the forum state)
> Consent - Defendant consents to jurisdiction in the forum state

Circustances that may give rise to sufficient contacts:
> Website - interactive site will be more likely to give rise to minimum contacts; passive sites are less likely
—> Interactive - two way communication between user and operator (e.g., information exchanged for the purpose of solicitating business; purchases are allowed)
—> Passive - sites make information available to interested viewers, but no business is transacted
> Putting goods into the stream of commerce - manufacturers may be held liable if they could reasonably expect consumers to purchase their products in the forum state
—> But mere awareness that component parts may reach forum as part of another product may be insufficient.

600

FAIRNESS FACTORS FOR MINIMUM CONTACTS & GENERAL VS. SPECIFIC JURISDICTION

Due process requires that assuming D has minimum contacts with the forum state, the exercise of jurisdiction must be fair (i.e., it must not offend traditional notions of fair play and substantial justice).

Factors - look at three factors determining if jurisdiction is fair:
(1) Relatedness of contacts & claim - does P’s claim arise from defendant’s contact with the forum state?
> Specific jurisdiction - claims rise from defendant’s in-state contacts
—> Only minimum contacts must be established
—> D can only be sued for claim arising from in-state contacts
> General jurisdiction - claims do not arise from D’s in-state contacts
—> D must have systematic, continuous contacts with forum state (e.g., doing business, domiciled)
—> If found, D can be sued in forum for any claim arising in or outside of forum

(2) Convinience - would jurisdiction in forum severely disadvantage ?
> Must be so inconvinient and difficult that D is inherently put as severe disadvantage compared to P

(3) States interest - does forum state have an interest in providing redress for its residents, or an interest in the outcome of the case?

700

NOTICE REQUIREMENTS

Due process requires that D must be sufficiently notified of a pending lawsuit

Requirement - notice must be reasonably calculated under the circumstances to appraise interested parties of the pendency of the action and afford an opportunity to be heard

Methods of notice
> Traditional methods of notice satisfy due process
—> E.g., personal delivery, registered mail, delivery to an appointed agent
—> P need not deliver notice personally; can be given by court-appointed agent or agent hired y P
> If P knows notice was not received by D (e.g., by mail), P cannot proceed if a practical alternative to giving notice exists.

800

IN REM & QUASI IN REM JURISDICTION

In rem - court adjudicates rights of all persons concerning property located in the forum state (does not bind parties personally)
> Statutory limit - Most States statutes provide for in rem jurisdiction in enumerated circumstances
> Constitutional limitations - jurisdiction based on the property being in the forum state
—> No jurisdiction will arise if the property is outside of the state or brought in through force or fraud.
—> *Notice - must at least be given by mail to persons with known addresses whose interests are affected

Quasi in rem - courts adjudicate rights between P and D with respect to property located in the forum state; two types:
(1) Type 1 - dispute between parties over rights to property within forum state (e.g., action to quiet title)
—> Jurisdiction based on the presence of property in the state is proper (the connection between claim and property provides minimum contacts)
(2) Type 2 - D’s property located in forum is seized or attached to obtain jurisdiction in dispute unrelated to property ownership
—> D must have minimum contacts
—> Courts adjudicate disputes based on their power over property; any judgments against D can be satisfied only out of that property
—> (less likely to be tested)

900

SUBJECT MATTER JURISDICTION OVERVIEW

Federal courts must have authority over the claim in question (as opposed to the parties or property, which is the concern of PJ); SMJ refers to courts’ ability to exercise that authority
> The Constitution provides limits on the types of cases that federal courts can hear
> SMj cannot be waived

1000

DIVERSITY JURISDICTION

Federal courts have SMJ over controversies between citizens of different states, even where claims do not involve federal law
> Diversity jurisdiction conferred by constitution and by statute

Requirements:
(1) Complete diversity - Every P must be of diverse citizenship from every D (i.e., no diversity if any P is a citizen of the same state as any D)
—> Does not require that all parties be citizens of different states; just no P and no D can be from the same state (e.g., two P’s can be from Utah, as long as no D is from Utah)
—> Examined at time of filing - diversity need not exist when the claim arose
—> Diversity can exist between citizens of a U.S. state and a foreign country ( sometimes called “alienage jurisdiction)
(2) Amount in controversy must exceed $75,000
—> P must make good faith allegation that her claim exceeds $75,000

Exclusions to diversity jurisdiction - federal courts will not hear actions involving divorce, alimony, child custody, or probate, even if diversity requirements are otherwise satisfied

1100

DIVERSITY JURISDICTION: COMPLETE DIVERSITY

Every P must be of diverse citizenship from every D

Determining citizenship
> Natural persons - citizens of the state where they are domiciled at the time the suite is filed
—> Domicile - where a person maintains a permanent home
> A person cannot have more than one domicile
—> Factors - for determining peron’s domicile, look at:
> Physical - actual presence in the state
> Mental - intent to make state permanent home (e.g., where person votes, works, is licensed, etc.)
—> Decedants, minors, etc. - look to citizenship of decedant, minor etc., not citizenship of their legal representative ( e.g., look at minor, not legal guardian)

> Corporations - citizens of every state where incorporated and where corporation maintains its principal place of business (“PBB”)
—> Corporation can have multiple states of citizenship
—> Determining PBB; look to where corporate decisions are made, i.e., “nerve center” (usually corporate headquarters)

> Uniincorporated businesses (LLCs LLPs, etc.) - citizens of all states in which any of its partners or members are a citizen

CIVIL PROCEDURE2

100

DIVERSITY JURISDICTION: AMOUNT IN CONTROVERSY

P’S COMPLAINT MUST MAKE A GOOD FAITH ALLEGATION THAT THE AMOUNT OF DAMAGES OR INJURY IN CONTROVERSY EXCEEDS $75,000, EXCLUDING INTERESTS AND COSTS
> To dismiss for insufficient amount, there must be no legal possibility that recovery will exceed $75,000
> Amount actually awarded is irrelevant

Equitable relief claims - court looks at the value of harm caused
> Can look from either P or D perspective - i.e., does the act requiring injunctive relief harm P by more than $75,000; or would it cost D more than $75,000 to comply with the injunction sought?

Aggregating Claims
> One P can aggrage all claims against a single D (e.g., must be one P vs one D)
> if not one P vs one D, can only aggregate if either:
(a) One P has joint liability claims against multiple Ds
—> Use total value of the claim
(b) Multiple Ps seek to enforce a single title or rightin which they have a common, undivided interest (rare)
—> E.g., several Ps jointly own real estate and sue D to quiet title - undivided interest, so aggreagtoin is ok

200

FEDERAL QUESTION JURISDICTION

FEDERAL COURTS HAVE JURISDICTION OVER PROPERLY PLEADED CLAIMS THAT ARISE UNDER FEDERAL LAW
> No diversity or amount in controversy requirements

REQUIREMENTS - the claim must show a right or interest founded substantially on federal law
> Federal question must appear on the face of the complaint
—> FQJ cannot arise based on extraneous allegations or potential defenses
> Analysis - ask if p is enforcing a federal right (e.g., one that arises under federal statute, regulation, Constitution, etc.)
> *Note - beware of fact patterns in which a complaint raises a federal law or issue, but P is not enforcing a federal right

EXCLUSIVE FEDERAL JURISDICTION - federal courts have exclusive jurisdiction over certain types of claims, which must be heard in federal court
> Most common areas of exclusive federal jurisdiction:
(1) Bankruptcy
(2) Patent and copy right
(3) Federal antitrust claims
(4) Postal matters

300

SUPPLEMENTAL JURISDICTION

SUPPLEMENTAL JURISDICTION ALLOWS A FEDERAL COURT TO HEAR ADDITIONAL CLAIMS (E.G., COUNTERCLAIMS AND CROSS-CLAIMS) THAT DO NOT, ON THEIR OWN, MEET DIVERSITY OR FEDERAL QUESTION JURISDICTION REQUIREMENTS.
> Cannot use supplemental jurisdiction to get a case into federal court

REQUIREMENTS - common nucleus of operative fact (CNOF)
> Each additional claim must share a common nucleus of operative fact with an existing claim that invoked FQJ or diversity jurisdiction
—> Satisfied if supplemental claims arise from the same transaction or occurrence as the underlying claim

DISCRETIONARY FACTORS - the court may refuse a supplemental claim if:
(a) Original jurisdiction claims are dismissed early in the proceeding
(b) Supplemental claim raises a novel or complex state law issue, or
(c) Supplemental claim substantially predominated over original jurisdiction claims

LIMITATION - in diversity cases, P cannot use supplemental jurisdiction to overcome lack of diversity (does not apply to D)
> However, P can use supplemental jurisdiction to overcome the lack of diversity for a claim in a federal question case
> P can also use supplemental jurisdiction to overcome an insufficient amount in controversy

400

REMOVAL JURISDICTION

D CAN REMOVE A CASE ORIGINALLY FILED IN STATE COURTS TO FEDERAL COURT IF THE FEDERAL COURT WOULD HAVE HAD SMJ (I.E., DIVERSITY OR FQJ)

REMOVAL RULES:
(1) Can only be removed if the case could have originally been filed in federal court
(2) Only D can remove and all D must agree to the removal
(3) Can only remove to federal district embracing state court in which case was originally filed
(4) D who filed a permissive counterclaim in state court waives the right to remove
> Timing - D must remove within 30 days of service of the first removable document (usually service of process)
> Procedure - D must file a notice in state and federal courts
—> Notice must be signed, contain grounds for removal, and copies of all documents served on D in state court
—> Must be provided to all adverse parties

DIVERSITY JURISDICTION LIMITATIONS:
> D cannot remove if P filed suit in any D’s home state (i.e., no removal if any D is a citizen of the forum state)
> No removal more than one year after the case is filed in state court

REMAND - if removal is improper, the court can remand to the state court
> Improper procedure - P can move to remand within 30 days
> Lack of SMJ - P can remove at any time

500

ERIE DOCTRINE

IN FEDERAL DIVERSITY CASES, FEDERAL COURTS MAY APPLY STATE SUBSTANTIVE LAW, BUT FEDERAL PROCEDURAL LAW
> If it is unclear whether the law is substantive or procedural, use the below analysis to determine if state or federal law applies

ANALYSIS:

(1) Is there a valid federal law (e.g., constitution, statute, federal rule) that is on point and directly conflict with state law?
> If yes, apply the federal law as long as it is valid

(2) If no federal law is on point, analyze under these tests:
(a) Outcome determinative - would applying or ignoring the state rule affect the outcome of the case?
—> if yes, the state law is substantive and should be applied
(b) Balance of interest - does either federal or state system have a strong interest in applying its rule?
—> if one has clearly stronger interest, apply that law
(c) Forum shopping avoidance - if federal court ignores state law, would it encourage littigants to flock to federal court?
—> if yes, state law is substantive and should be applied

COURTS HAVE DETERMINED THESE ISSUES ARE SUBSTANTIVE (I.E., STATE LAW WILL ALWAYS GOVERN):
(1) Elements of a claim or defense
(2) Statute of limitations (“SOL”)
(3) Conflicts/choice of law rules
(4) Rules for tolling the SOL

600

VENUE

VENUE INVOLVES THE DETERMINATION OF THE JUDICIAL DISTRICT(S) IN WHICH P MAY BRING SUIT
> Distinguish from SMJ, which involves whether the case can get to federal court, venue concerns which federal court is proper

GENERAL RULES FOR BENUE IN CIVIL ACTIONS - for most civil actions in federal court, venue is proper:
(a) In any district where any D resides (if all Ds reside in the same state in which the district is located);
(b) In any district in which a substantial part of the claim arose or in which a substantial part of property that is subject to the action is situated; or
(c) if no district in the U.S. can satisfy (a) or 9b) above, the venue is proper in any district in which and D is subject to PJ

RESIDENCY FOR VENUE PURPOSES
> People - residency determined by domicile
> Busines - resident of all districts in which it was subject to PJ when the action commenced ( much broader standard than PPB)
> Unincorporated associations - residency is determined by the location of the association itself, not individual members.

700

VENUE TRANSFER

A CASE MAY BE TRANSFERRED FROM ONE FEDERAL DISTRICT TO ANOTHER IN THE INTEREST OF JUSTICE IF THE TRANSFEREE DISTRICT IS ONE IN WHICH THE CASE COULD HAVE ORIGINALLY BEEN FILED
> i.e., can transfer to any distinct with the proper venue, PJ, and SMJ
> Any party may move to transfer venue

IF VENUE IN ORIGINAL DISTRICT IS PROPER - transfer is discretionary
> Court may order transfer based on convenience of parties and witnesses, and/or in the interest of justice
> Court discretion is based on:
—> Public factors - what law applies, which community should be burdened with jury service, etc.
—> Private factors - convenience (e.g., location of evidence, witnesses)

IF THE VENUE IN THE ORIGINAL DISTRICT IS IMPROPER - the court may transfer in the interest of justice or dismiss the case

CHOICE OF LAW - The transferee court applies the choice of law rules of the original court, regardless of which party sought transfer
> Exception - transferee court will apply its own laws if the original venue was improper

800

FORUM NON CONVENIENS

IF THERE IS A FAR MORE APPROPRIATE COURT IN WHICH A CASE SHOULD BE HARD (E.G., SEPARATE JUDICIAL SYSTEM, FOREIGN COUNTRY, ETC.), THE COURT IN WHICH THE CASE WAS FILED MAY DECLINE TO EXERCISE ITS JURISDICTION

FACTORS:
> The Court evaluates based on the same public and private factors as for venue transfer, i.e., convenience, applicable law, etc.
—> Requires strong showing of public and private interests to dismiss or stay

OPTIONS FOR COURT GRANTING FORUM NON CONVENIENs:
(1) STAY THE PROCEEDING
(2) DISMISS THE CASE
—> Usually dismissed without prejudice, which allows P to sue in the more appropriate forum
—> Dismissal often occurs because the transfer to the more appropriate court is impossible (e.g., because it is in a different judicial system or country)
—> Dismissal based on forum non conveniens almost never granted if P is a resident in the present forum

900

COMPLAINT

THE INITIAL PLEADING IN ALAW SUIT, FILED BY P, WHICH BEGINS AN ACTION

REQUIREMENTS - The complaint must contain:
(1) STATEMENT OF JURISDICTION - short and plain statement of grounds upon which the court’s jurisdiction depends (i.e., why the court has jurisdiction)
(2) STATEMENT OF CLAIM - short and plain statement of P’s claim, showing entitlement to relief
—> Notice pleading standard - complaint must give enough information to allow the adverse party to be on notice and make a reasonable response
> Detailed facts are not required; allegations must only be sufficient for the court to plausibly infer that D could be liable if allegations are true
—> Exceptions - certain claims/issues must be pleaded with particularity, including:
(a) Fraud or mistake
(b) Special damages
(c) Judgments or official documents upon which the pleading party will rely
(3) DEMAND FOR JUDGMENT FOR RELIEF SOUGHT -description of relief sought (e.g., money damages, injunction, etc.)

1000

ANSWER

RESPONSE TO THE COMPLAINT, IN WHICH D STATES DEFENSE TO EACH CLAIM ASSERTED AND ADMITS OR DENIES EACH COUNT OF P’s COMPLAINT
> Governed by rule 8
> Defenses can be pleaded in the alternative
—> E.g., in breach of contract claim, D can deny a contract existed but also answer that if a contract did exist, D performed under the contract
> Timing - must be filed within 21 days of service of process, or 14 days after a ruling on a Rule 12 motion

REQUIREMENTS - The answer must:

(1) RESPOND TO ALLEGATIONS OF COMPLAINT - available responses:
(a) Admit allegations
(b) Deny allegations
—> Failure to deny can constitute an admission on any issue except damages
(c) Lack of sufficient information to admit or deny allegations

(2) RAISE AFFIRMATIVE DEFENSES - certain defenses are waived if not explicitly pleaded in answer; these include:
i. Contributory negligence
ii. Claim preclusion
iii. Statute of frauds
iv. Fraud
v. Statute of limitations
vi. self-defense

COUNTERCLAIMS - D’s claims against P may be required in D’s answer (compulsory) or may be brought separately (permissive)

1100

RULE 12 MOTIONS

D MAY ATTACK THE VALIDITY OF P’s COMPLAINT THROUGH A RULE 12 MOTION

RULE 12(b) DEFENSES:
(1) Lack of SMJ
(2) Lack of PJ*
(3) Improper venue *
(4) Insufficiency of process*
(5) Insufficiency of service of process*
(6) Failure to state a claim
(7) Failure to join in a necessary party
> *Waiver - these are waived if not included in D’s rule 12 notion, provided they were available
> Rule 12(b) defenses may be raised by motion or in answer
> Must be filed before an answer if responsive pleading allowed

MOTION FOR A MORE DEFINITIVE STATEMENT (Rule 12(e)) - if complaint is so vague or ambiguous that D cannot reasonably prepare a response, D may move for a more definitive statement from P

MOTION TO STRIKE (RULE 12(f)) - D may move to strike from the complaint (or the court may strike on its own) any redundant, immaterial, impertinent, or scandalous material

MOTION FOR JUDGMENT ON THE PLEADINGS (RULE 12(c)) - similar to Rule 12(b) (6) motion for failure to state a claim; difference depends on timing

CIVIL PROCEDURE3

100

COUNTERCLAIM

AN OFFENSIVE CLAIM RAISED BY D AGAINST P, WHICH MAY BE PLEADED IN D’s ANWER TO THE COMPLAINT; GOVERNED BY RULE 13
> TWO TYPES:
(1) Compulsory - must be asserted in pending case; will be waived otherwise
(2) Permissive - not waived if D fails to assert it
>JURISDICTIONAL REQUIREMENT - D must ensure court has jurisdiction to hear any counterclaim
—> *Note - compulsory counterclaims will almost always have supplemental jurisdiction

COMPULSORY COUNTERCLAIM (RULE 13(a))
> Claim by D against P that arises from the same transaction or occurrence as of of P’s claims
> Must be filed in d’s answer or it will be waived (i.e., D cannot assert it in a separate action at a later time)

PERMISSIVE COUNTERCLAIM (RULE13(b))
> Claim by d against P that does not arise from the same transaction or occurrence as any of P’s claims
> May be filed with D’s answer to P’s complaint, or can be asserted in a separate action filed by D

200

CROSS-CLAIMS

OFFENSIVE CLAIMS ASSERTED BY A CO-PARTY; GOVERNED BY RULE 13
>E.g., P sues D! and D@; D1 assets a cross-claim against d2

REQUIREMENTS -same transaction or occurrence
> Cross-claims must arise from the same transaction or occurrence as the underlying action
—> Never compulsory, unlike counterclaims stemming from the same transaction or occurrence

JURISDICTION- must have an independent basis for SMJ
> Cross-claims will almost always satisfy supplemental jurisdiction requirements because they must arise from the same transaction or occurrence

300

AMENDING PLEADINGS

UNDER RULE 15, PARTIES MAY AMEND THEIR PLEADINGS ONCE AS A MATTER OF COURSE
> Additional amendments may be granted with the consent of other parties or court permission (amendment without right)

AMENDMENT AS A MATTER OF COURSE -may occur either:
(a) Withing 21 days after service, or
(b) If the pleading is one in which requires a response, within 21 days of service of the responsive pleadings or pre-answer motion (e.g., a Rule 12 motion)
—> E.g., if D answer’s P’s complaint, P has 21 days from service of the answer to amend complaint
> Party has 14 days or time remaining on initial 21-day deadline (whichever is longer) to respond to an amended pleading

AMENDMENT WITHOUT RIGHT - party may only amend with either:
(a) Written consent of the adverse party, or
(b) Leave of court (i.e., permission of court)
—> Leave of courts must be sought through a motion
—> Leave will be granted freely when jsutie requires (lenient standard); court look to:
i. Delay that will be caused
ii. Potential prejudice
iii. Futility of amendment

400

AMENDING PLEADINGS: RELATION BACK

THE RELATION BACK DOCTRINE APPLE WHEN A PARTY AMENDS A PLEADING TO A ADD A NEW CLAIM OR D AFTER THAE STATUTE OF LIMITATIONS HAS RUN; GOVERNED BY RULE 15(c)
> If allowed to relate back, amended pleading will be treated as if it was filed when the original pleading was filed

REQUIREMENTS:
> NEW CLAIM -amendment will relate back if the new claim concerns the same conduct, transaction, or occurrence as the original pleading
NEW OR SUBSTITUTED D - amendment will relate back if:
(1) Amendment concerns the same conduct, transaction, or occurrence as original pleading, and
(2) Within 120 days of the filing of the amendment:
i. New D knew of or received notice of an action, and
ii. New d knew of or should have known that, but for a mistake, she would have been named originally
—> Applies when P sued the wrong D first, but the right D was aware of the mistake

500

RULE 11 CERTIFICATION & SANCTIONS

RULE 11 REQUIRES THE ATTORNEY OR PRO SE PARTY TO SIGN ALL PLEADINGS, WRITTEN MOTIONS, AND OTHER PAPERS

CERTIFICATION -signature acts as a certification that, to the best of the signor’s knowledge, after all reasonable inquiries taken:
(1) Filing is not for an improper purpose (e.g., harassment, delay)
(2) Legal contentions are warranted by law
—> Arguments made for modification of an existing law or establishment of a new law must be non-frivolous
(3) Factual contentions and denials have or are likely to have evidentiary support

SANCTIONS - The court may issue sanctions for violations, either on the court’s own initiative or an opponent party’s motion
> Safe harbor - Rule 11 motion for sanctions may not be filed until 21 days following service of the offending document
—> Party may withdraw the offending document or remedy the problem
—> If not remedied or withdrawn, a motion can be filed
> Hearing required - court must give the attorney or party a chance to be heard before imposing sanctions

600

VOLUNTARY DISMISSAL

UNDER RULE 41, P MAY VOLUNTARILY DISMISS HER CASE, EITHER WITH OR WITHOUT COURT APPROVAL (I.E., LEAVE OF COURT)

DISMISSAL WITHOUT LEAVE OF COURT - allowed before D serves an answer or motion for summary judgment (“MSJ”)
> P voluntarily dismisses by filing a written notice of dismissal or stipulation signed by all parties who have appeared
> Dismissal is without prejudice, i.e., P can bring claims again
—> Exception - dismissal is with prejudice if p previously filed and dismissed the same claims
—> Dismissal can also be without prejudice if it is a condition of the parties’ settlement agreement

DISMISSAL WITH LEAVE OF COURT - required if there has been an answer, motion, or prior dismissal
> The court has the discretion to grant dismissal on terms and conditions it deems proper
> Dismissal is without prejudice unless the court states otherwise
> Pending counterclaim - If D filed a counterclaim, P cannot voluntarily dismiss without D’s consent

700

DEFAULT & DEFAULT JUDGMENT

UNDER RULE 55, DEFAULT JUDGMENT AGAINST D MAY BE ENTERED WHEN D FAILS TO PLEAD OR OTHERWISE DEFEND A PROPERLY SERVED COMPLAINT

PROCEDURE - If P files a motion for default judgment against D
> Clerk enters default on docket if P shows D failed to respond within 21 days of being served (60 days if service is waived)
—> Default does not automatically entitle P to recovery; clerk or judge must enter a judgment of default
>Default judgment by court clerk - may be entered if:
(1) D has not responded at all
(2) Claim is for money damages
(3) P gives an affidavit of the sum owed, and
( 4) D is not a minor or incompetent

RECOVERY - limited to the amount demanded in the complaint

SETTING ASIDE DEFAULT JUDGMENT - Court may set aside default judgment for good cause shown within one year
> Usually satisfied if D can show some excusable neglect, mistake, or fraud

800

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM & MOTION FOR JUDGMENT ON THE PLEADINGS

UNDER RULE 12, D MAY MOVE TO DISMISS OR MOVE FOR JUDGMENT ON THE PLEADINGS DUE TO P’s FAILURE TO BRING A PLAUSIBLE CLAIM
> I.e., D arguing that even assuming all allegations in complaint or pleadings are true, P cannot win
> If granted, P will usually be given leave to amend the complaint

FAILURE TO STATE A CLAIM VS. MOTION FOR JUDGMENT ON THE PLEADINGS
> Timing Of Filing:
—> Before D files answer = Rule 12(b)(6) motion to dismiss
—> After D files answer = Rule 12(c) motion for judgment on the pleadings
> Material reviewed by court:
—> Rule 12(b)(6) motion - court reviews sufficiency of P’s complaint alone
—> Rule 12(c) motion - court review all pleadings

900

SUMMARY JUDGMENT

UNDER RULE 56, EITHER PARTY MAY FILE A MOTION FOR SUMMARY JUDGMENT (“MSJ”) ASKING COURT TO ENTER JUDGMENT
> Must be filed no later than 30 days after the close of discovery

BURDEN FOR MOVING PARTY - Must show:
(1) There is **no genuine issue of material fact **
(2) Moving party is entitled to judgment as a matter of law
> i.e., no reasonable person could find for the nonmoving party
> Motion is based on pleadings and evidence submitted

BURDEN-SHIFTING - If the party moves for summary judgment, the burden shifts to the nonmoving party to show that a triable issue exists

EVIDENCE - examined in the light most favorable to the nonmoving party
> Court can look at the whole record of admissible evidence (e.g., affidavits, verified pleadings, discovery materials, etc)
—> Evidence must be admissible to be considered
—> * Note this distinguishes MSJ Rule 12(b) or 12(c) motions, in which the court may only look at complaints or all pleadings

PARTIAL SUMMARY JUDGMENT - The court can grant summary judgment on only certain claims

1000

ALTERNATIVE DISPUTES RESOLUTION & SETTLEMENTS

FEDERAL COURTS MUST HAVE AN ADR PROGRAM AND THE FRCP ACTIVELY ENCOURAGES SETTLEMENT THROUGH VARIOUS MEANS, INCLUDING MANDATORY SETTLEMENT CONFERENCES

ADR - Generally refers to any means of settling disputes outside the courtroom, including arbitration and mediation

MANDATORY SETTLEMENT CONFERENCE - A court-appointed advisor meets with parties privately and offers an evaluation of the weaknesses of their respective cases

SETTLEMENTS OFFERS - Under Rule 68, parties may make formal settlement offers at least 14 days before the start of the trial
> Settlement for less than offer - if the offeree obtains judgment less favorably than the unaccepted offer, the offeree must pay costs incurred by the offering party after the offer was made.

CRIMINAL LAW & PROCEDURE

100

ASSAULT & BATTERY

Assault - two theories at common law:
(1) Assault as a threat - general intent crime
—> Intentional creation of victims’ reasonable apprehension of imminent bodily harm
—> Words alone are usually insufficient
(2) Assault as an attempted battery - specific intent crime
—> Specific intent crime because it involves an attempt

Battery - an unlawful application of force to the person of another resulting in bodily injury or offensive touching
—> I.e., a completed assault
—> General intent crime

**Note - under modern statutes, both assault and battery have “aggravated” counterparts, which usually arise when the assault or battery is carried out with the use of a weapon.

200

RAPE

Common law - unlawful carnal knowledge of a woman by a man other than her husband, without effective consent

Modern statutes
> The slightest penetration is sufficient to complete the crime
> Marital status insignificant
—> Most states have abolished elements of marital status
> Lack of effective consent - exists if:
(a) Penetration is accomplished by force or threat of immediate bodily harm;
(b) Vicitm is incapable of consenting due to lack of capacity (e.g., unconsciousness, intoxication, etc.); or
(c) Victim is fraudulently caused to believe the act is not intercourse

**Note - fraud or trickery lone does not constitute rape
>There must be penetration without contemporaneous consent or capacity to consent
—> E.g., convincing someone you plan on marrying them in order to have intercourse is not rape.

300

FALSE IMPRISONMENT & KIDNAPPING

False imprisonment
> The unlawful confinement of a person without their consent
—> Consent cannot be obtained through coercion, threat, or deception

Kidnapping
> The unlawful confinement of a person that involves either:
(a) Some movement of the victim; or
(b) Concealment of the victim in an unknown, hidden, or secret location

**Note - false imprisonment can become kidnapping if the victim is moved and/or concealed

400

Murder

The unlawful killing of another human with malice aforethought

Malice aforethought - arises when no mitigating facts reduce the killing to a lesser crime and the defendant commits the killing with one of the following mental states:
(1) Intent to kill
(2) Intent to inflict great bodily injury
(3) Depraved/malignant heart - a killing committed with reckless indifference to an unjustifiable risk of human life
(4) Felony murder - a killing caused during the attempt or commission of an inherently dangerous or statutorily enumerated felony
—> Intent required = the intent necessary to commit the underlying felony
—>Statutorily enumerated felony = statute dictates that a killing resulting from the crime constitutes felony murder

Causation - D’s act must both be the actual and proximate cause of the victim’s death
> Any act by D hastening the victim’s death, even if already inevitable, is considered a cause

500

STATUTORY MODIFICATIONS TO COMMON LAW MURDER

Most jurisdictions classify murder crimes into various “degrees” by statute

First-degree murder - arises if killing is either:
(a) Deliberate & Premeditated - D must have killed dispassionately and must have considered or reflected on his killing, even if only momentarily
—> Specific intent crime - voluntary intoxication and mistake of fact are valid defenses
(b) Felony murder - killing during an enumerated felony
—> Many states list felonies that may serve as the basis for felony murder

Second-degree murder - a homicide not arising to the level of first-degree murder

** Note - if first-degree murder is not mentioned as a possibility in MBE question or answer choices, assume the question involves second-degree murder, which is often the “default murder” on the MBE.

600

FELONY MURDER

A killing that occurs during the attempt or commission of certain enumerated felonies
> Intent to commit felony = the intent necessary to commit the underlying felony

Felonies allowing for felony murder
(1) Inherently dangerous felonies
(2) Statutorily enumerated felonies
—> I.e., the criminal statute states that a killing occurring during its commission constitutes felony murder

Limitations on liability for felony murder
>D must be guilty of the underlying felony
—> Valid defenses to the underlying felony are also defense to felony murder
>The underlying felony cannot itself be a killing
—>E.g., involuntary manslaughter cannot be felony murder
> Victim death must be a foreseeable result of the felony
> Victim death must be caused before D reaches a place of temporary safety
> D is not liable for the death of a co-felon killed by police or the original victim

700

VOLUNTARY MANSLAUGHTER

A killing resulting from an adequate provocation (heat of passion killing) or imperfect self-defense

Adequate provocation - required elements:
(1) Provocation would cause sudden and intense passion in an ordinary person, causing him to lose self-control
(2) D was in fact provoked (i.e., D actually lost control)
(3) There was insufficient time for an ordinary person to cool off between the provocation and the killing
—> Very subjective and fact-based
(4) D did not cool off between the provocation and the killing
> *Note - adequate provocation is not a defense to murder
—> But it can be a mitigating factor that reduces a murder charge to voluntary manslaughter

Imperfect self-defense
> If D murders while acting in self-defense, his criminal liability can be reduced to voluntary manslaughter if either:
(a) D initiated the altercation that required self-defense, or
(b) D unreasonably believed that deadly force was necessary
>** Note - not recognized in all jurisdictions.

800

INVOLUNTARY MANSLAUGHTER

A killing committed with criminal negligence or during the commission of an unlawful act not constituting felony murder

Criminal negligence
> Arises if D is grossly negligent
>E.g., D is texting while driving and hits and kills a pedestrian in a crosswalk

Commission of an unlawful act
> The requisite unlawful act is any felony or misdemeanor not giving rise to liability for felony murder

** Note - If MBE questions simply state “manslaughter” without distinguishing between voluntary and involuntary manslaughter, both types must be considered.

CONSTITUTIONAL LAW1

100

GOVERNMENT ACTION (“STATE ACTION”) REQUIREMENT

THE CONSTITUTION APPLIES ONLY TO GOVERNMENT ACTION (FEDERAL, STATE, OR LOCAL)
>Private conduct does not have to comply with the constitution, subject to the below exceptions

EXCEPTIONS - Constitution will apply to private conduct where:
(1) EXCLUSIVE PUBLIC FUNCTION - A private entity performs a task traditionally performed by government (narrow exception)
—> Arises only if a private entity exclusively operates a government function (e.g., private prisons, elections)
(2) SIGNIFICANT STATE INVOLVEMENT (ENTANGLEMENT) - government affirmatively authorizes or facilitates private conduct
—> State must affirmatively approve or validate private conduct - permitting it alone is insufficient
—> Examples of state action - court enforces a racially restrictive covenant; state provides books to private schools that racially discriminate
—> Examples of no state action - government grants liquor license to racially discriminatory private club; private school receiving government funds fires a teacher over speech

** Note - Congress may indirectly regulate private conduct through the Commerce Clause (if it affects interstate commerce) or through the 13th amendment (enabling Congress to pass legislation enforcing the 13th amendment ban on slavery)

200

BILL OF RIGHTS: APPLICATION TO FEDERAL & STATE GOVERNMENTS

THE BILL OF RIGHTS (BOR) ONLY APPLIES DIRECTLY TO THE FEDERAL GOVERNMENT
> Certain provisions of the BoR apply to state and local governments under the incorporation doctrine
> The Supreme Court has selectively held specific BoR provisions applicable to the states through incorporation into the 14th amendment Due Process (DP) clause
—> Most BoR provisions are now incorporated

EXCEPTIONS - certain provisions of the BoR are not incorporated by the 14th amendment to states, including
> 3rd amendment right not to have soldiers quartered in homes
> 5th amendment right to grand jury indictment in criminal cases
> 7th amendment right to a jury trial in civil cases
> 8th amendment right against excessive fines

REVERSE INCORPORATION
> The 14th Amendment Equal Protection Clasue does not apply directly to the federal government, but has been held to apply to the federal government through the 5th amendment due process clause

300

LEVELS OF SCRUTINY

COURTS USE THREE TESTS TO ANALYZE THE CONSTITUTIONALITY OF GOVERNMENT ACTS UNDER SUBSTANTIVE DUE PROCESS AND EQUAL PROTECTION
> *NOTE -these should be memorized verbatim

RATIONAL BASIS -A law will be held if it is rationally related to a legitimate government purpose
> Any conceivable legitimate purpose suffices, regardless of the actual purpose of the law
> A law will almost always be upheld under rational basis review unless it is completely irrational or arbitrary
> Burden of proof - challenger bears the burden of proof

INTERMEDIATE SCRUTINY - A law will be upheld if it is substantially related to an important government purpose
> Givenement goal must be important; courts look at the actual reason the law was enacted
> Burden of proof - government bears the burden of proof

STRICT SCRUTINY - A law will be upheld if it is necessary to achieve a compelling government interest
> government must show there are no less restrictive or burdensome means of achieving its goals
> The court looks at the actual reason the law was enacted
> Burden of proof - government bears the burden of proof

400

PROCEDURAL DUE PROCESS

A FAIR PROCESS (E.G., NOTICE, HEARINGS) IS REQUIRED FOR A GOVERNMENT AGENCY TO TAKE OR DEPRIVE A PERSON’S LIFE, LIBERTY, OR PROPERTY

ANALYSIS:
(1) HAS THERE BEEN A DEPRIVATION OF LIFE, LIBERTY, OR PROPERTY?
—> LIBERTY DEPRIVATION - loss of significant freedom of action or freedom provided by constitution or statute (e.g., institutionalization, government restriction of fundamental rights)
—> PROPERTY DEPRIVATION - A legitimate claim or entitlement to a benefit under law, which goes unfulfilled
> E.g., public school attendance, welfare

(2) WHAT PROCEDURES ARE REQUIRED? - determined by balancing:
(a) Importance of the individual interest involved, and
(b) Value of procedural safeguards to that interest, against
(c) Government interest (i.e., fiscal or administrative efficiency

Examples - Procedural due process requirements arise with:
> Terminating welfare/socail security benefits; separating child from parents; punitive damages awards ; enemy combatant status for citizens obtained in foreign countries

500

SUBSTANTIVE DUE PROCESS

INVOLVES THE DETERMINATION OF WHETHER THE GOVERNMENT HAS ADEQUATE REASONS FOR DEPRIVING LIFE, LIBERTY, OR PROPERTY
> Encompasses both fundamental and non-fundamental rights

APPLICABLE LEVELS OF SCRUTINY
> Non-fundamental rights - apply rational basis test
> Fundamental rights - apply strict scrutiny

SUBSTANTIVE DUE PROCESS VS EQUAL PROTECTION (EP)
> SIMILARITIES -Under both substantive DP and EP, a court reviews the substance of the law, not procedure
> DIFFERENCES:
—> Substantive DP - usually involves laws affecting rights of all persons to engage in some conduct or activity
—> EP - usually involves treating certain people or classes of people differently than others, usually based on some trait

600

ECONOMIC RIGHTS & THE CONTRACT CLAUSE

ECONOMIC RIGHTS GENERALLY - rational basis test
> The Constitution provides only minimal protection for economic liberties (laws affecting or amounting to taking of one’s economic rights)
> Rational basis applies unless the infringement falls under the contracts clause or takings clause
—> Government almost always wins under the rational basis test

CONTRACTS CLAUSE - states cannot impair contractual duties
> Applies only to state/local interference with existing contractual obligations, including government obligations
> LEVELS OF SCRUTINY -different for private v. public contracts:
—> PRIVATE CONTRACTS -intermediate-type scrutiny: if a law substantially impairs a party’s rights under an existing contract, it violates the Contract Clause unless the law:
(1) Serrves an important, legitimate, public interest; and
(2) Is reasonably and narrowly tailored in promoting that interest
—> GOVERNMENT CONTRACTS - strict scrutiny
> Local laws substantially impairing or interfering with existing government contract must be reasonable and necessary to serve an important public purpose

700

EX POST FACTO CLAUSE & BILLS OF ATTAINDER

THE Constitution prohibits state and federal govenemnts from passing retroactive laws, which generally involve either ex post facto laws or bills of attainder

EX POST FACTO CLAUSE - prohibits post facto laws
> A law is an ex post facto law if either:
(a) Criminally punishes conduct that was lawful when done, or
(b) Increases punishment for a crime after it has been committed, or
(c) Reduces the burden required to convict a person for a crime after it has been committed
> Does not apply to civil liability, where retroactive legislation must meet only a rational basis
> *Note - Ex post facto clause is contained in the contract clause

BILL OF ATTAINDER - legislative acts that punish specific individuals without judicial trial
> E.g., an order to imprison a person without judicial process
> Bills of attainder are prohibited under the constitution

800

TAKINGS CLAUSE

THE 5TH AMENDMENT TAKINGS CLAUSE PROHIBITS THE GOVERNMENT FROM TAKING PRIVATE PROPERTY FOR PUBLIC USE WITHOUT PROVIDING JUST COMPENSATION TO THE OWNER AND/OR OCCUPANT

3-PART ANALYSIS (TO DETERMINE IF TAKING IS CONSTITUTIONAL):
(1) HAS THERE BEEN A TAKING?
—> Possessory taking - government confiscation or physical occupation of property
—> Regulatory taking - government regulation that leaves no economically viable use of the property; factors in determining if a regulatory taking has occurred:
(a) Social good promoted by the regulation
(b) Loss to owner
(c) Owner’s expectations for his property

(2) IS THE TAKING FOR PUBLIC USE?
—> A taking is for public use if govenement acts with reasonable belief that the taking will benefit the public
> Very low standard

(3) IS JUST COMPENSATION PAID?
—> Measured in terms of loss to the owner

900

FUNDAMENTAL RIGHTS & THE RIGHT TO PRIVACY

FUNDAMENTAL RIGHTS ARE TREATED UNDER THE 5TH AMENDMENT DUE SUBSTANTIVE PROCESS AND THE 14TH AMENDMETN EQUAL PROTECTION
> Substantive DP - applies if a right is denied to all
> EP applies if a right is denied to some but not others

OVERVIEW OF FUNDAMENTAL RIGHTS
> RIGHT TO PRIVACY - An inferred right that encompasses several rights with varying levels of scrutiny:
—> STRICT SCRUTINY REVIEW:
(1) Right to marry
(2) Right to procreate
(3) Rights concerning family and children
(a) Rights to the custody of one’s children
(b) Rights to keep family together
(c) Right to control children’s upbringing
—> SEPARATE OR UNKNOWN LEVELS OF REVIEW:
(1) Right to abortion
(2) Right to engage in private, consensual homosexual activity (unknown)
(3) Right to refuse medical treatment (unknown)
> RIGHT TO VOTE - usually implicated under EP
> RIGHT TO TRAVEL - usually implicated under the EP clause

1000

EQUAL PROTECTION: APPLICATION & APPROACH

INCORPORATION - PROVISIONS RELATING TO EP:
> 14TH Amendment EP clause applies directly to state/local governments
> EP applies to the federal government by incorporation through the 5th Amendment DP clause
—> i.e., the EP clause does not apply directly to the federal government
> The same analysis and levels of scrutiny apply for EP analysis whether it applies through the 5th or 14th amendment

APPROACH TO EP:
(1) IS THERE A DISCRIMNATORY CLASSIFICATION?
—> To receive heightened scrutiny, a discriminatory classification must be proved
(2) WHAT LEVEL OF SCRUTINY APPLIES GIVEN THE CLASSIFICATION?
—> Suspect classifications - strict scrutiny
—> Quasi-suspect classifications - intermediate scrutiny
—> All other alleged classifications - rational basis
(3) DOES THE CLASSIFICATION SATISFY THE APPROPRIATE LEVEL OF SCRUTINY?

1100

PROVING DISCRIMINATORY CLASSIFICATIONS

CLASSIFICATIONS MUST BE DISCRIMINATORY TO BE REVIEWED UNDER HEIGHTENED SCRUTINY (INTERMEDIATE OR STRICT SCRUTINY)

THREE WAYS TO PROVE A DISCRIMINATORY CLASSIFICATION:
(1) LAW DISCRIMINATED ON ITS FACE - by its terms, the law treats classes of people differently

(2) FACIALLY NEUTRAL LAW APPLIED IN A DISCRIMINATORY MANNER
—> The law does not create a classification by its terms but does so as applied (e.g., only men are arrested under an otherwise valid law)
—> Proving a classification - P must demonstrate:
(a) Disparate impact - the law has a discriminatory impact (i.e., it creates a classification); and
(b) Government officials applying the law had some discriminatory purpose

(3) DISCRIMINATORY MOTIVE/PURPOSE BEHIND LAW
—> Difficult to prove
—> Demonstrating discriminatory impact alone is not enough; there must be evidence of govenement’s discriminatory motive

1200

EQUAL PROTECTION STANDARDS OF REVIEW

RATIONAL BASIS
(1) Alienage, but only if classification:
(a) Relates to the democratic process, * or
(b) Is a congressional action concerning immigration*
(2) All other classifications

INTERMEDIATE SCRUTINY (QUASI-SUSPECT CLASSIFICATION)
(1) Gender
(2) Non-marital children

STRICT SCRUTINY (SUSPECT CLASSIFICATION)
(1) Race
(2) National origin
(3) Alienage
(4) Right to travel
(5) Right to vote

1300

CLASSIFICATIONS BASED ON RACE OR NATIONAL ORIGIN

CLASSIFICATIONS BASED ON RACE OR NATIONAL ORIGIN ARE SUSPECT CLASSIFICATIONS REVIEWED UNDER STRICT SCRUTINY

CLASSIFICATIONS BENEFITTING MINORITIES (AFFIRMATIVE ACTION
> ADMISSIONS - educational institutions may use race or national origin as a factor in admissions decisions, but not as a defining criterion
—> E.g., an admissions process that awards “points” to some applicants based on race is unconstitutional

PUBLIC SCHOOL INTEGRATION - public school systems may not assign students to schools on the basis of race to achieve integration
—> Generally, racial balancing is not a compelling state interest

CONSTITUTIONAL LAW2

100

ALIENAGE CLASSIFICATIONS

> Alienage = citizenship status
Strict scrutiny usually applies, subject to certain exceptions

EXCEPTIONS - rational basis applies if the classification is
(1) RELATED TO SLEF GOVERNMENT AND THE DEMOCRATIC PROCESS
—> Often arises where job applicants are denied government employment based on their citizenship status
—> Areas where alienage classifications have been upheld under rational basis review:
> Voting
> Serving on a jury
> Working as a police officer
> Working as a teacher
> Working as a probation officer
—> Working as a notary public is not integral to self-government and the democratic process

(2) A CONGRESSIONAL LAW REGULATING IMMIGRATION
—> Congress has plenary powers to regulate immigration
—> * Note - undocumented aliens are not considered a suspect classification

200

GENDER & NON-MARITAL CHILDREN CLASSIFICATIONS

GENDER - intermediate scrutiny + “exceedingly persuasive justification”
> Gender classifications receive intermediate scrutiny (i.e., they must substantially relate to an important government purpose)
—> Additionally, courts often require an “ exceedingly persuasive justification” for the classification
> Classifications discriminating against men are usually invalid
—> Some have passed intermediate scrutiny
> E.g., statutory rape laws applying only to men, all-male military draft
> Classification benefitting women:
—> Classifications based on stereotypes are impermissible
—> Classifications designed to remedy past discrimination will likely be upheld

NON-MARTIAL CHILDREN (legitimacy classifications
> Usually arises with intestacy statutes
> Intermediate scrutiny - applies if a law grants benefits to all marital children but denies to some non-marital children.
—> Laws that deny benefits to all non-marital children while granting benefits to all martial children are unconstitutional on their face.

300

RATIONAL BASIS CLASSIFICATION

ALL CLASSIFICATION NOT QUALIFYING FOR STRICT OR INTERMEDIATE SCRUTINY RECEIVE RATIONAL BASIS REVIEW
> Examples:
—> Age
—> Disability
—> Wealth
—> Economics

**Note - alienage classifications arising from congressional regulation of immigration or relating to self-government and the democratic process receive rational basis review

400

RIGHT TO TRAVEL AND RIGHT TO VOTE UNDER EQUAL PROTECTION

ALTHOUGH BOTH ARE FUNDAMENTAL RIGHTS THAT CAN BE ANALYZED UNDER SUBSTANTIVE DUE PROCESS, THE RIGHT TO TRAVEL AND VOTE OFTEN ARISE AS CLASSIFICATION ISSUES REQUIRING EQUAL PROTECTION ANALYSIS

RIGHT TO TRAVEL - strict scrutiny
> usually arises when laws impede movement between states
> Durational residency requirements - laws requiring some period of in-state residency to qualify for a state benefit.
—> Invalid residency requirements:
> 1 year residency to receive welfare; 1 years residency to receive subsidized medical care; 1 year residency to vote in state elections
—> Valid residency requirements:
> 30 day residency to vote in state elections 1 year residency to get a divorce.

RIGHT TO VOTE - strict scrutiny
> Arises with laws that deny some citizens the right to vote
> The “one person, one vote” requirement must be met for all state and local elections
—> For elected bodies, voting districts must be similar in population
> At-large elections - constitutional
—> When all voters vote for all office holders

500

FREEDOM OF RELIGION

RELIGION IS PROTECTED UNDER THE FREE EXERCISE CLAUSE AND THE ESTABLISHMENT CLAUSE, BOTH UNDER THE 1ST AMENDMENT

FREE EXERCISE CLAUSE - protects the freedom to exercise religion
> Strict scrutiny applies
> Limitation - The Free Exercise Clause only applies if the purpose of a law is to limit or interfere with religious practice
—> Laws of general applicability (i.e., not designed to regulate or interfere with religion) are valid
> The government cannot deny benefits to individuals who quit jobs for religious reasons

ESTABLISHMENT CLAUSE
> If the government discriminates against a specific religion or sect )as opposed to religion generally), strict scrutiny applies
> If government restricts or burdens religion without discriminating against a specific faith or group, apply the Lemon test:
> TEST - a government act burdening religion will only be upheld if:
(1) There is a secular purpose behind the act
(2) The act’s primary purpose neither advances nor inhibits religion
(3) The act does not create excessive government entanglement with religion

600

FREEDOM OF ASSOCIATION: MEMBERSHIP & DISCLOSURE RESTRICTIONS

FREEDOM OF ASSOCIATION ISSUES ARISE WHEN LAWS PROHIBIT OR PUNISH GROUP MEMBERSHIP - STRICT SCRUTINY USUALLY APPLIES

LAWS CRIMINALIZING MEMBERSHIP - governments must prove that the defendant:
(1) Actively affiliated with a group involved with illegal activities
(2) Had knowledge of the group’s illegal activities
(3) Acted with the specific intent of furthering those activities

DISCLOSURE REQUIREMENTS - strict scrutiny if chilling effect
> Laws requiring disclosure of group membership must meet strict scrutiny if disclosure would have the effect of chilling association (i.e., if it would inhibit the group’s ability or willingness to associate)

700

FREEDOM OF ASSOCIATION: PROHIBITING GROUP DISCRIMINATION

PROHIBITIONS ON GROUP DISCRIMINATION ARE UNCONSTITUTIONAL ONLY IF THEY INTERFERE WITH INTIMATE ASSOCIATION OR EXPRESSIVE ACTIVITIES

INTIMATE ASSOCIATION - small, intimate groups have absolute freedom of association
> E.g., small groups or clubs, dinner parties

EXPRESSIVE ASSOCIATION/ACTIVITIES - groups have the right to associate for the purpose of engaging in protected 1st amendment activities (i.e., activities integral to the groups purpose)
> Usuallyy involves groups formed for expressive, non-intimate associative purposes (e.g., NAACP, Boy Scouts, KKK)
—> E.g., the KKK is not required to accept African-American members, as this exclusion is integral to its association and thus protected

800

FREE SPEECH FRAMEWORK

DETERMINING APPLICABLE TEST/LEVEL OF SCRUTINY
> Ask: does the speech at issue fall within a lesser-protected category of speech (e.g., obscenity, symbolic speech, commercial speech, etc.)>
—> Yes - apply the appropriate test for that category of lesser-protected speech
—> No - identify whether the speech restriction is content-based or content-neutral to determine applicable scrutiny

CONTENT BASED - apply strict scrutiny
> Content-based regulations restrict speech based on its subject matter and/or its viewpoint
—> E.g., an ordinance banning political protests - restricts speech based on its subject matter (politics)
—> E.g., city grants a rally permit to a liberal group but denies a rally permit to a conservative group - restrict speech based on viewpoint (i.e., the ideology of the message)

CONTENT-NEUTRAL - Analyze under the public forum doctrine
> Content-neutral regulations restrict the time, place, or manner, of the delivery of speech, not its content
> Applicable test depends on whether the speech is in a public or non-public forum
—> Public forum - intermediate-type scrutiny
—> Non-public forum - rational basis-type scrutiny

900

SPEECH IN PUBLIC FORUMS

PUBLIC FORUMS ARE GOVERNMENT PROPERTY THAT THE GOVERNMENT IS COCNTITUIONALLY REQUIRED TO MAKE AVAILABLE FOR SPEECH (E.G., SIDEWALKS, PARK)
> Regulations must be content neutral
—> if not, strict scrutiny applies

RESTRICTION ON SPEECH IN A PUBLIC FORUM - to be upheld, the restriction must:
(1) Be content-neutral (i.e., only regulates time, place, or manner of speech)
—> If the restriction i content-based, strict scrutiny applies
(2) Be narrowly tailored to serve an important government purpose
(3) Leave open adequate, alternative channels of communication
—> Does not have to be the least restrictive alternative

> Permit fees that vary depending on thetypes of speech are content-based and unconstitutional

1000

SPEECH IN LIMITED/DESIGNATED PUBLIC FORUMS & NON-PUBIC FORUMS

LIMITED/DESIGNATED PUBLIC FORUMS: government properties that the government opens for speech, but can close at any time
> E.g., public school facilities for girl Scout meetings
> The same rules apply as for public forum restrictions, but only apply when the government property is open for speech
—> When closed for speech or restricted to certain types of speech, analyze regulations the same as for non-public forums

NON-PUBLIC FORUM: governments property that can be closed to speech (e.g., military base, airports, advertising on city buses)
> TEST - the government can regulate speech if the regulation is:
(1) Reasonably related to some legitimate purpose
(2) Viewpoint neutral
> *Note - content-neutrality not required; government can allow speech on some subject but not others, yet if it opens speech to a subject it cannot limit the speech to only one view

1100

PRIOR RESTRAINTS

PRIOR RESTRAINTS INVOLVE A PROHIBITION ON SPEECH (OR PUBLICATION) BEFORE IT OCCURS - STRICT SCRUTINY APPLIES

IDENTIFYING PRIOR RESTRIANTS - look for prevention of expression
> Prior restraints prevent expression, whereas other speech restrictions punish expression after it has occurred

INJUNCTIONS - most common type of prior restraint
> It is extremely difficult to get an injunction prohibiting speech
> “Gag orders” against pre-trial publicity are almost never allowed
> *Note - P must comply with a valid injunction until it is vacated or overturned; P cannot challenge a violated injunction

PERMITS/LICENSING - government may require licenses or permits for speech only if there is a reasonable justification for doing so
> License/permit requirements for speech must be similar to a “rubber stamp” process and must provide procedural safeguards or judicial review for denied permits/licenses
>P can challenge a denial on constitutional grounds, even if violated

1200

VAGUESNESS & OVERBREADTH

VAGUENESS - A law is vague if a reasonable person cannot tell whether speech is prohibited or permitted
> e.g., a law prohibiting people from assembling and conducting themselves “in a manner annoying to a passerby” - unconstitutionally vague because a reasonable person must guess as to what behavior is punishable

OVERBREATH - a law is overbroad if it regulates substantially more speech than the constitution allows to be regulated
> An overbroad law restricts unprotected speech, but in doing so also restricts protected speech
—> e.g., the law prohibiting all “live entertainment” restricts obscenity (valid), but also prohibits protected speech in concerts or theater (invalid)
> If a speech restriction is overbroad, it cannot be enforced against anyone, even one whose speech is not protected

** Note - “fighting words” statutes are unconstitutionally vague and overbroad and will not be upheld

1300

SYMBOLIC SPEECH

EXPRESSIVE OR COMMUNICATIVE CONDUCT (I.E., CONDUCT INTENDED TO CONVEY A MESSAGE)

TEST - the government can regulate symbolic speech if:
(1) The regulation furthers an important government interest
(2) That government interest is unrelated to the suppression of the message
—> If the restriction is aimed at speech more than conduct, it is likely unconstitutional
(3) The impact on speech is no greater than necessary to further the important government interest

EXAMPLES:
> Burning U.S. flag - protected symbolic speech
> Burning a draft card - not protected
> Nude dancing - not protected
> Burning a cross - protected unless intended to threaten