CONTRACTS

I.

07/28/2013

3RD PARTY ISSUES

How
1)
2)
3)
4)
5)
A.

to Analyze:
Identify 3rd party beneficiary problem
Use vocabulary of 3rd party beneficiary law
Deal with efforts to cancel or modify a 3rd party beneficiary
contract
Figure out who can sue whom
Assert any available defenses
Vocabulary
1.
Intended beneficiary if the contracting parties intended
to benefit that person. Only intended beneficiaries have K law
rights
a)
2 kinds of intended beneficiaries:
(1)
Creditor beneficiary a 3rd party whos benefit
is conferred based on a debt owed by the promisee
to the K
(a)
Ex: A (promisee) seeks performance from
B (promisor) to satisfy an obligation that A
owes to C (a 3rd party)
(b)
**Look to see if 3rd party was a creditor of
the promisee before the K
(2)
Donee Beneficiary a 3rd party whos benefit is
conferred gratuitously
(a)
Ex: A (promisee) seeks a performance
from B (promisor) to make a gift of that
performance to C (a 3rd party)
(b)
**Intended beneficiaries are usually
donees!
2.
Incidental beneficiaries a 3rd party who will benefit from a
promisors performance as a practical matter, but arent
intended beneficiaries

B.

Who has a right to sue?

1.
Vesting of Rights
a)
In order for a 3rd party to enforce rights under a K,
the 3rd partys rights MUST vest
An intended beneficiarys rights vest when:
1) A 3rd party assents to the promise in a manner
requested by the parties to the K
Ex: Lawyer calls law school and says, Hey, do
you want a
free mural? and law school says, Sure,
thatd be great!
2) 3rd party materially changes position in justifiable
reliance on the promise
3) 3rd party brings suit to enforce the promise
b)
Once the 3rd partys rights vest, the promisor &
promisee CANNOT modify or rescind the K w/o the 3rd
partys consent

C.

Who can sue who?

1) Creditor Beneficiaries can sue promisor OR promisee
2) Donee Beneficiaries can sue ONLY the promisor (not the
promisee!)
3) Incidental Beneficiaries do not have a right to sue anybody!!
4) Promisee can sue promisor

1.
If a 3rd party sues a PROMISOR (creditor ben., donee ben v.
promisor):
a)
The promisor can assert any defense that he would
have if he was sued by the promisee
b)
Ex: the check S (promisor) receives from B
(promisee) bounces. So, S does not deliver grits to T (3rd
party). T sues S for breach of K.
(1)
S can use defense he can say B breached K
by not paying him
II.

Assignments
A.
Assignment a transfer of rights to a 3rd party after a K is formed
Assignments involve 2 steps:
1)
A contract between only 2 parties
2)
One of the parties later transfers that right to a 3rd party
B.

Vocabulary
1.
Obligor the other party to the K (he doesnt really do
anything; he just formed K w/ the assignor
2.
Assignor the party to a K (made K w/ obligor) who later
transfers his rights under the K to another (the assignee)
3.
Assignee not a party to the original K. Assignee can
enforce the K b/c of the assignment (from the assignor to the
assignee)

C.

Limitations on Assignments
If the fact pattern includes language of K regarding assignability,
determine whether the contract:

1)
2)

Prohibits assignments; or
Invalidates assignments

Prohibits assignments [rights hereunder are not assignable]=

takes away right to assign; assignee can still enforce K.
Invalidates assignments [all assignments of rights under this
contract are void]= takes away right to assign AND power to
assign; assignee has no rights
1.

Prohibits assignments:
a)
Anti-assignment clause language or prohibition
takes away the right to assign, but not the power to assign
(1)
So assignor is liable for breach of K,
(2)
But assignee, who doesnt know of prohibition,
can still enforce the K
b)
Ex: K provides rights hereunder are not assignable

2.

Invalidates assignments:
a)
Language of invalidation takes away BOTH the right
to assign and the power to assign
(1)
So assignor is liable for breach of K
(2)
And NO rights to assignee
b)
Ex: K provides all assignments of rights under this
contract are void

3.

Determining Prohibition v. Invalidation

a)
If you cant determine which one it is stick with
prohibition
b)
If theres nothing in the K limiting the right to assign,
CL bars an assignment that substantially changes the
duties of the obligor

(1)
Substantial change assignment of right to K
performance other than right to payment
(a)
Ex: Gotham assigns its rights to security
services under the K w/ Batman to Metropolis,
i.e., Batman is to defend Metropolis, not
Gotham
(i)
Assignment wont be enforceable
b/c it substantially changes the duty of
the obligor
(2)
Not a substantial change assignment of right
to payment
(a)
Ex: Batman assigns his rights to payment
under K w/ Gotham to Robin, i.e., Gotham is to
pay Robin, not Batman
(i)
This is enforceable
D.

Requirements for Assignment

1.
General rule consideration is not required
2.
BUT only gratuitous assignments can be revoked
a)
Ex: Batman assigns the right to payment under K w/
Gotham to University for no consideration. This is a VALID
assignment
b)
Ex: Same facts as above. Before Gotham pays
University, Batman changes his mind. Batman CAN revoke
assignment to university and obtain payment from Gotham
for himself

E.

Who can sue who?

Assignee can sue obligor
Assignor for consideration CANNOT recover from obligor
Ex: After assigning the K w/ Gotham to Robin for $10, and
doing all the work himself, Batman CANNOT collect from Gotham
Obligor has same defenses as assignee as it would against
assignor
1.
Payment by obligor to assignor is effective until obligor
knows of assignment

2.
Modification agreements between obligor and assignor are
effective IF the obligor did not know of assignment
3.
Implied warranties of assignor in assignment for
consideration In an assignment for consideration, the assignor
warrants:
a)
The right assigned actually exists
b)
The right assigned is not subject to any then-existing
defenses by the obligor
c)
The assignor will do nothing after the assignment to
impair the value of the assignment
4.
The assignor does NOT warrant what the obligor what the
obligor will do after the assignment
F.

III.

Multiple Assignments
1.
All gratuitous assignments
a)
Rule last assignee generally wins
2.
Multiple assignments for consideration
a)
Rule 1st assignee for consideration generally wins
(1)
VERY limited exception a subsequent
assignee takes priority over an earlier assignee for
value ONLY if he meets both of the following:
(a)
Does not know of the earlier assignment,
and
(b)
Is the first to obtain
(i)
Payment,
(ii)
A judgment,
(iii) A novation, or
(iv) Indicia of ownership [four
horseman rule]

Delegation of Duties

A.

General
1.
Delegation of duties disputes arising from a persons
performing a K she did not make
2.
Delegation is a party to a K transferring work under that
K to a 3rd party
3.
Often a contracting party makes both an assignment and a
delegation
4.
TIP: Bar examiners often use the term assignment in a
problem involving an assignment and a delegation, and even a
problem involving only a delegation

Need
1)
2)
3)
4)

to know:
What a delegation is
Relationship of assignment & delegation
Which duties are delegable
What are the consequences of delegation

Relationship of Assignment & Delegation:

A K creates both rights and duties
Assignment the transfer by a party to a K of his rights of benefits
under the K to a 3rd person who was not a party to the K
Delegation the transfer by a party to a K of his duties or burdens
under the K to a 3rd party who wasnt a party to the K
B.

Which duties are delegable?

1.
Generally, contractual duties are delegable
2.
Limitations on delegation are very limited
3.
Delegations are permitted unless either:

a)
The contract prohibits delegations or prohibits
assignments, or
b)
Personal services contract that calls for VERY
SPECIAL skills
C.

Vocabulary
1.
Obligor the other party to the K
2.
Delegator the party to the K who transfers his duties to a
delegatee (equivalent of assignor)
3.
Delegatee NOT a party to the original K. Receives the
delegation of duties from the delegator

D.
Nonperformance by Delegateewhat if, after delegation,
rd
the 3 party delegatee does not perform?
1.
Delegator (delegating party) ALWAYS remains liable
(unless theres a novation!)
2.
Delegatee liable ONLY if she receives consideration from
the delegator
3.
SO if delegation was for consideration, the delegator &
obligor can sue delegatee
PERFORMANCE OF UCC CONTRACTS
6 CONCEPTS:
1)
Perfect Tender
2)
Rejection of the Goods
3)
Cure
4)
Installment Contracts
5)
Acceptance of the Goods
6)
Revocation of Acceptance of the Goods

I.

Perfect Tender
A.
Perfect tender ONLY applies to sales of goods!
B.
Perfect tender does NOT mean the sellers performance must be
perfect!
C.
Perfect tender the goods and delivery must conform to the K
terms
D.
A less than perfect tender by the seller generally gives the buyer
the option of rejection of the delivered goods, so long as the buyer acts
in good faith

II.

Rejection of the Goods

4 Things to Know About Rejection for Exam:
1) Need to be able to distinguish rejection of an offer from rejection of
the goods
2) If the seller does not meet the perfect tender standard the buyer
has the option to:
a) Retain and sue for damages, OR
b) Reject all or any commercial unit and sue for damages
3) This rejection alternative is limited by:
a) Cure,
b) Installment contract, and
c) Acceptance
4) Buyer must take reasonable care of the rejected goods

III.

Cure
A.
In some instances, a seller who fails to make a perfect tender will
be given a 2nd chance, and option of curing

1.
NOTE: Seller does not always have this opportunity, and
buyer cannot compel seller to cure!
When seller has opportunity to cure:
1) Sellers reasonable ground to believe goods would be
acceptable, perhaps w/ a
money allowance
In very limited situations, a seller has the option of curing
even after the K
delivery date. Reasonable grounds is the statutory test
Look for info in the question about prior deals
between that buyer &
seller
2) Time for performance has not yet expired
IV.

Installment Contracts
A.
Installment contract requires or authorizes:
1.
Delivery of the goods in separate lots
2.
To be separately accepted
B.
The buyer has the right to reject an installment ONLY where there
is a substantial impairment in that installment that cannot be cured

V.

Acceptance of the Goods

A.
If buyer accepts the goods, it cannot later reject them
B.
Payment w/o opportunity for inspection is NOT acceptance!
C.
Rejection must be timely! Failure to reject after the buyer had
reasonable time to reject IS acceptance

D.
The effect of the buyers keeping the goods is implied
acceptance
1.
TIP: Look for the buyers keeping the goods w/o objection!
More specifically, look for a fact pattern that states when buyer
first received the goods and when the buyer first complained to
seller
VI.

Revocation of Acceptance of the Goods

A.
Effect of revocation same as rejection of the goods (buyer
returns the goods & the seller returns payments made
1.
REMEMBER: If a buyer accepts the goods, he CANNOT
later reject the goods
a)
In limited circumstances, a buyer can effect a
cancellation of the contract by revoking its acceptance of
the goods
Requirements for revocation:
1) Nonconformity substantially impairs the value of the

goods, and
2) Excusable ignorance of grounds for revocation OR
reasonable reliance on
sellers assurance of satisfaction, and
3)Revocation within a reasonable time after discovery of
nonconformity

REMEDIES FOR AN UNEXCUSED NONPERFORMANCE

I.
Nonmonetary Remedies (In Rem)
A.
Specific Performance/Injunction
1.
TIP: This is almost NEVER the right answer!
2.
Looks for adequacy of remedy at law, or unclean hands, or
other parties equities

Specific Performance Remedy:

1) Contracts for sale of real estate
2) Contracts for sale of goods IF theyre unique (antiques, art,
custom-made, or other appropriate circumstances
3) Contract for services NO specific performance, possible
injunctive relief
Ex: Epstein contracts w/ BRI to lecture for BRI. Epstein
breaches
Can BRI obtain a court order requiring Epstein to
lecture for BRI?
NO
Can BRI obtain a court order barring Epstein from
lecturing for a competing bar review course?
YES
B.

Sellers Reclamation from an Insolvent Buyer of Goods

1.
This is the right of an unpaid seller to gets its goods back
Key Facts are that:
1) Buyer must have been insolvent at the time it received the
goods, and
On exam, it has to specifically tell you that the buyer is
insolvent
2) Seller demands return of the goods within 10 days of receipt,
and
This 10-day rule becomes a reasonable time rule if,
before delivery,
there had been an express representation of solvency
by the buyer
3) Buyer still has the goods at the time of the demand

II.

C.
Buyers Recovery of identified, paid-for goods for a Seller who
becomes insolvent within 10 days??
Money Damages for Breach of Contract
A.
Policy compensate P, not to punish D
Types of Money Damages:
1)
Expectation
2)
Incidental
3)
Consequential
4)
Avoidable
5)
Certainty
6)
Reliance
7)
Liquidated
B.

Measuring Damages
1.
General Approach protection of expectation (people who
contract expect that the other person will not breach)
Step 1 Look to facts for dollar value of performance w/o breach
Step 2 Look to facts for dollar value of performance w/ breach
Step 3 Compare the 2 to determine the amount of damages

III.

Damages Rules for Sales of Goods

A.
Policy putting innocent party where it would have been had the
K been performed (i.e., expectation)
3 Relevant Factors:
1) Who breached?
2) Who has the goods?
3) Was there a later replacement deal?
B.

Damages for Sellers BreachBUYERS REMEDIES

1) Seller breaches, buyer keeps the goods:

(FMV if perfect) (FMV as delivered)
OR
Cost of repair
2) Seller breaches, seller has the goods (whichever one of the
following is greater, will be awarded to the buyer):
(Market price at the time of discovery of the breach) (K
price)
OR
(Reasonable replacement price) (K price)
C.

Damages for Buyers BreachSELLERS REMEDIES

1) Buyer breaches, buyer keeps the goods:

 K price
2) Buyer breaches, seller has the goods
(K price) (resale price)
BUT if seller cannot resell the goods then it will be:
(K price) + (lost profits, in some situations)
3) Lost Profits for Lost Volume Seller provable lost profits! (when
the item cannot be sold to someone else)
D.

Additions & Limitations

1.
PLUS incidental damages
a)
The costs incurred in dealing w/ the breach
(1)
Ex: costs of storing the rejected goods, or
finding a replacement in a services K
b)
ALWAYS recoverable
2.

PLUS foreseeable consequential (special) damages

a)
Does NOT mean all damages causes as a
consequence of the breach!
b)
Consequential damages are the kind of loss that is
special to this P (compared to general damages, which is
the kind of loss that any person would sustain)
c)
Consequential damages are limited to damages
arising from Ps special circumstances
d)
To recover consequential damages has to be a
situation where D had reason to know of these special
circumstances at the time of the K

3.

E.

LESS avoidable damages

a)
No recovery for damages that could have been
avoided w/o undue burden on P
b)
Burden of pleading/proof is on the D (D has the
burden to show this; P has the duty to mitigate)
c)
Ex: Continuing to perform after the other partys
breach; turning down other comparable opportunities

Contract Provisions Re: Damages (i.e., Liquidated Damages)

1.
Look for a K provision fixing the amount of damages
2.
Issue will be is provision valid?
a)
Concern is whether the provision is too high
3.
Tests are:
a)
Damages were difficult to forecast at the time the K
was made, and
b)
Provision is a reasonable forecast

Contracts remedies/damages
o Determine if its UCC or R2k
o Try to make non-breaching party whole or get them back to
position they would have been in before contract was form
o Full performance is ideal
o If you see a lot of numbers (shipping costs, defect in good cost
damage to property)
o Damages all apply at the same time
o My goal is how do I make them whole
o ^this concept is expectation

o Then look at incidental, consequential, lost profits, liquidated

damages (which would be in lieu of everything else b/c thats
what you contracted for)
o All of these concepts arent mutually exclusive
o Whats the expectation? Where sould I have been w/ full
performance? If that doesnt make me whole, what will make me
whole
o For UCC
Buyer breaches, seller has goo
2 factorslook at K price at either FMV at time of breach or
resale price
think Kristinas Coca-Cola cup

if she sends me Pepsi Cups instead of Coca-Cola

cups not perfect tender, so its a breach

Formula for when I write- in ruleidentifying relevant rule of law that

addresses the tension withing fact patterns and then define all terms of legal
significance
o Ex: formation- to have valid CL K have to have offer, acceptance,
consideration. Then define those 3 terms of legal significance.
Then analyze those 3
Analysis- rules and analysis must mirror each other
o analyze each element- analysis whether theres offer,
acceptance, consideration
o this should almost feel repetitive
o Incidental would have been tarps to cover more service area
o Consequentialreasonably foreseeable between both of the
parties at the time of formation. They had an hour long
discussion about the need for the tent and what the tent was for,
so when it caved in an destroyed the equipment, it was
reasonably foreseeable at the time of formation
These were as a consequence of the breach
Incidental damagesany costs youd incur as a result of the breach;
you wouldnt have had to make these expenses if the breach didnt occur
When in doubt go transaction by transaction. Can put pre-existing duty
discussion in its own category

Defenses to formation, then terms or performance

Can bullet point and give one sentence rule, one sentence analysis
Is there a minor breach or major?
o If theres arguable no major change in the price of the services
that were rendered, or when you compare and contrast the
amount of money to fix the breach
o If minor and substantial performance by breaching party, then
that does not eliminate the non breaching parties duty to pay
o Material breachcan immediately suspend performance and sue
for damages
IV.
I.

II.

Rights in Land
A.
RAP the following approach works 80% of the time:
1.
Rule 1 the last person mentioned by proper name & all
prior parties take
2.
Rule 2 the next person not mentioned by proper name
takes
3.
Rule 3 all additional parties lose & property reverts back
to grantor or grantors heirs
Assignment & Sublease
A.
Assignment transfer by the lessee of his entire interests w/o
reserving ANY reversion therein in himself
1.
Assignee primarily responsible to LL under a privity of
estate concept
2.
Assignor remains secondarily liable under privity of
contract
*TIP: so if assignee defaults in payment of the rent, the assignor
will nevertheless be liable
B.
Subletting transfer of only part of the sublessors interest,
which leaves a reversion in him as to the premises sublet

1.
Original tenant responsible for rent under BOTH privity of
contract and estate
2.
Sublessee not responsible to the LL, but is responsible to
the sublessor
III.

Sale of Real Property

ANALYSIS (below) this will take you through each step normally
involved w/ the sale of real property and should help identify the issues
in the essay
A.
Seller usually enters into a K w/ a real estate broker for
the sale of the property
1.
Did the seller enter into a K w/ a real estate broker
that is claiming a commission is owed?
a)
If NO go to #2
b)
If YES is the contract in writing?
(1)
If YES go to #2
(2)
If NO then the contract violates the SOF and
the broker does not receive a commission
MBE a written agreement between seller & broker is required
2.
Does the broker contract provide for when the
commission is earned by the broker?
a)
If YES then the parties must abide by the contract
terms
b)
If NO then the commission is earned when the
broker finds a buyer who is ready, willing and able to
purchase under the sellers terms
B.

If the buyer and seller enter into a land sale contract

1.
Does the contract satisfy the SOF in that it is in
writing?
a)
If YES go to #2
b)
If NO then the SOF may be a defense to the
contract, unless there is part or full performance by the
parties
General Rule ONLY the part performed is taken out of the
SOF
(1)
Majority Rule if a buyer has taken possession
of land and does one of the following, it takes the
contract out of the SOF:
(a)
Made valuable or permanent
improvements, OR
(b)
Paid the full purchase price
(2)
Minority Rule it does not require full payment
of the purchase price, only that a substantial portion
was paid
2.
There is a presumption that time is not of the
essence unless so stated in the contract
3.
There is an implied warranty of marketability of title
in every land sale contract. If any of the following exists on
the date of the closing, the buyer must notify the seller and give
a reasonable time to cure the defects. If the seller fails to cure,
the buyer may pursue several remedies.
a)
Encumbrances
b)
Encroachments
c)
Restrictions: except zoning laws
d)
Doubt as to validity
(1)
If a buyer enters into a contract of sale w/
knowledge of defects in marketability of title, but has
not contracted to take the property subject to the
defects, the buyer does not have to take title.
However, if the buyer closes (takes title), he takes it
subject to all defects actually inquired or a record
notice would reveal
*If, however, the buyer expressly assumed the
defects in marketability in the contract, the buyer is
said to be purchasing subject to the defects, and the
buyer must take title pursuant to the contract.

C.
Equitable Title and Risk of Loss upon the signing of the
land sale contract, the buyer receives equitable title and the risk
passes to the buyer, and the buyer must pay the seller the full
purchase price
*CL follow the above rule wherein the buyer receives equitable
title and assumes the risk of loss upon signing of the contract
D.
Closing of title is when the deed to the property is passed
from the seller to the buyer
1.

The deed must be validly executed and delivered

a)
Execution the deed must be a writing signed by the
seller & contain an adequate description of the parcel
b)
Delivery the seller must lose legal control of the
deed. Delivery of the deed may be made to a 3rd person
(i.e., an agent of the buyer, but not an agent of the seller
b/c this is not loss of control due to the agency
relationship)

2.

The kind of deed must be proper

a)
Full covenant and warranty grantor warrants that:
(1)
He owns property
(2)
He has the right to convey it
(3)
Premises are free from encumbrances except
those specified
(4)
Purchaser will be protected against an eviction
by the grantor or a person asserting a paramount
right
(5)
He will execute and procure any further
documents or assurances necessary to perfect the
title
(6)
He will defend grantees title against adverse
claimants
b)
Bargain and sale this is conveyance of title w/o the
above warranties; however, the grantor does warrant the
he has done nothing during his term of ownership that
would impair title
c)
Quitclaim seller does not purport to convey title,
but rather releases any claim he may have to the property
d)
Deed by estoppelafter acquired title theory if a
person who had no title to land conveys the property and
thereafter acquires title, then the title vests immediately in
the prior grantee and grantor is estopped from denying he
did not have title when he made the original transfer

3.
The buyer must record the deed to protect his title
against a subsequent purchaser for value
a)
CL rule first in time, first in right
b)
Race first to record gets title
c)
Notice last bona fide purchases gets title
d)
Race-notice first bona fide purchaser to record gets
title
Record to protect interest in a notice jurisdiction, a BFP
has a perfected title as against the grantor and any other
prior unrecorded grantees. The BFP must record to protect
the interest as against subsequent purchases only.
Recording provides constructive notice of a prior interest
and precludes the possibility of a subsequent purchases
gaining BFP status
Record to Perfect in a race-notice or race jurisdiction, a
grantee must record not only to protect his interest against
subsequent grantees, but also to perfect the interest
acquires as against previous unrecorded grantees
IV.

Security Interests on Real Property

A.
Mortgage an interest in land created by a written instrument
providing security for the performance of a duty or the payment of a
debt.
1.
Under CL (title theory) the transfer, while giving no
right of possession to the mortgagee, did transfer title and create
an estate (apply this on MBE)
2.
In a majority of jurisdiction (lien theory) the transfer
creates a mere lien and title remains w/ the mortgagor (apply
this for NJ)
B.

Types of mortgages:
1.
Purchase money mortgage special type of real estate
mortgage given concurrently w/ the sale of land by the vendee
(grantee-buyer) to the vendor (grantor-seller) to secure the
unpaid balance of the purchase price.
a)
Grantor gives possession of the property and deed
transferring legal title to the grantee
b)
Grantee does not pay the full price, but owes the
balance to the grantor

2.
Equitable mortgage (absolute deed) real property can be
posted as security for a loan, and the deed transferred to a
creditor w/ the understanding that it will be reconveyed when the
debt is paid. A court could conclude that the feed was really a
mortgage and require the creditor to foreclose it by judicial
action in the event the debtor defaults on the loan
3.
Recourse mortgage mortgagor is personally liable to
mortgagee on any deficiency in the event of foreclosure
4.
Non-recourse mortgage mortgagor is not personally
liable to mortgagee for any deficiency in the event of foreclosure
C.

Mortgage Creation
1.
Parties to a mortgage
a)
Mortgagordebtor-borrower the party that
b)
Mortgageecreditor-lender the part to whom the
mortgage
2.
Parties Basic Rights & Responsibilities
a)
Mortgagors Rights & Responsibilities
(1)
Mortgagor retains possession of the land;
(2)
Mortgagor retains legal title to the land
mortgaged;
(3)
Mortgagor may lease the land and is entitled to
the rends and profits thereon;
(4)
Where there is a mortgage on the property and
a promise within the mortgage, or a bond is
executed:
(a)
The real property is the primary security
for the mortgage debt
(b)
The mortgagor is personally liable either
on his promise in the mortgage or via the bond,
and if there is a deficit after the sale of the
land, the mortgagor is liable for the difference
(5)
Defense to the extent that the secured
obligation is invalid, or subject to a defense, so also
is the mortgage securing it (e.g., usurious interest
rates, gambling debts)
b)
Mortgagees Rights and Responsibilities
(1)
Has a lien on the land;
(2)
May assign the mortgage to a 3rd party who
succeeds to the rights of the mortgagee;
(3)
Should record the mortgage so that all persons
who subsequently acquire an interest in the
mortgaged property will take subject to it;

(4)
Obtains a lien against the land that is superior
to subsequent purchases, lessors or mortgagors of
the land, unless there is a failure to record the
mortgage and a sale (or mortgage) to an innocent
purchaser by the mortgagor. HOWEVER, foreclosure
of the lien will cut off all subsequently created
interests provided the subsequent interest holders
are joined as a party in the foreclosure proceeding
D.
Covenants typically found in the mortgage agreement
mortgagor usually convenants:
1.
To pay the indebtedness;
2.
To insure the property for the mutual benefit of the
mortgagor and mortgagee;
3.
E.
Mortgage Transfers
F.
Termination of the Mortgage Lien
1.
Merger
2.
Payment
3.
Tender
4.
Operation of the statute of limitations
5.
Foreclosure

Zoning
o Zoning boards can require you to do certain things
o Essays- common plan or scheme, subdivided- they can require
that you put stuff for parks and recreation, they can require you
to do things for the benefit of the community
Prop questioneasements, etc.
Easement- nonpossessory right of way over
Burden parcel and benefit parceleasement appurtunent
Easement in gross- 1 benefits. Utility line, cable etc.
Dominanthas the right to go over someones property
PING
Grantits in writing, everyone has notice

Prescriptionperson using easement for adverse period

Necessitylandlocked
Implicationpiece of land which is subdivided
o Arises in context of sale of piece of property
o Use of easement was reasonably apparent before and after
o Has to be reasonably necessary for continued usedoesnt have
to be landlocked but has to be reason for them to use it.
o (if its mere convenience, it wont work)
How do you terminate an easement? destructive, merger,
abandonment, necessity ends, estoppel
o easement owner would have to express want to abandon the
easement
Betty would likely claim that her act
Enforcement would be by equity
Covenants- skateboard ramp. In breach of covenant that says you
o This is a restrictive covenant
o Can enforce them at law for money damages, or in equity, which
would be an equitable servitude
o In this context, equitable injunc
o WITNESSwriting that shows theres the covenant, intent for
covenant to run, has to be about what oyu can do to do tland
(touch and concern), notice, equitable servitude
Always have vertical privity unless property obtained by adverse
possession
Burdenalways have to have horizontable
Horizontal only have in 3 sitneed common grantor and all get deeds
from common grantor (common plan or scheme) everyone gets deed from
same person* 2) landlord/tenant 3) I give you money to buy your property
(mortgagor/mortgagee)
Only diff between equitable serv and restrictive covenants (can **cany
time you see promise to do/not to do something it can be enforced as
covenant or equitable servitude

I.

sd
torts essaywhat are defenses? If were doing all neg issues, then
same arg for 1 defendant will apply to all defendants
dont make the arguments for both sidesonly the defenses!!
o For proximate cause- its not foreseeable that solely by
prescribing this med this kind of damage would occur because
Only defense they would all have for negligence issue would be that he
contributed to his injures contriborily negligence. In all likelihood, Fred
would be a certain percentage at fault and his award would be reduced
by X amount
o Dont have to say how contriutorily negligent he is w/ each
defendant b/c you dont know!
If the warning was adequate, then If it the warning was
inadequate then

Negligent retentionneed employer/employee; employee is unfit for

employment, employees defect causes harm, employer knew/should have
known of the unfitness of the employee or fail to properly investigate the
employee, and damages (p. 265 in outline)
Crux of proximate cause is foreseeabilityis it foreseeable that b/c of
the breach of the suty
Defendant is always going to use intervening/superseding cause as a
defense--** but usually this wont work
For essay purposes, superseding/intervening causes will hardly ever be
an issue
In strict liability discussion you still need duty, breach, causation, etc.
AORif you know of the risk and choose to act
Joint/several liability issuesif you wanted to combine all these issues;
each D indiv. may also have cause of action against other Ds for
contribution or indemnity Contribution is _____ whereas indemnification deals
with 100% shifiting of liability- but this only works with products liability,
vicarious liability, and someone who contracts for liability

Instead of proper P/proper D, idea is anyone using the product whether

they bought it or not, they are foreseeable plaintiff, we allow you to sue
anyone thats a commercial supplier. Even if he wasnt the one that
purchased the medication.

To asset a s.l cause of ation, there must be a duty owed by a commercial

supplier not to put a defective product in the marketplace, breach in the
product is defective/had the defect, ( that the product contains a defect);
that the breach was the actual/proximate cause of the injuries; and that
there are damages (damages to something other than a product)
o the defective is either the manufacturer, the design, or the warning
for purposes of the bar, think of actions separately but elements are the
for purposes of our essays, always
2 defenses that can be raised by manu/supplier 1) product has been
altered since it left the hands of the commercial supplier 2) the product
must be used in a foreseeable use/misuse
a defective warning is one that is not conspicuous to adequately inform
the user of the harm

loss of consortium- she has damages as a result of your

negligence/actions; she will bring this against those D b/c its foreseeable
that Fred would be married. She will bring this to recover
Concurrent causes= flow automatically from the original cause of action

I.
character evidence admissible if: 1) character is an essential
elements; 2) conduct in conformity w/ character at the time of the event
(specific acts); 3) bad character for truthfulness to impeach
A.
can only come in after D has opened the door
B.
conduct-in-conformityonly comes in w/ specific if it tends to
show M,I,M,I,C
1.
as long as theres sufficient evidence to lead a jury to
believe that D committed that original crime
C.
convictions extrinsic; vs. bad acts w/o
1.
if you were convicted of a crime such as fraud of perjury, it
can always come in
2.
if it wasnt one of those, it has to be a felony and its at the
courts discretion
3.
if person says no, then you can bring in the conviction
4.
if person committed a bad act but was not convicted you
can ask them on the stand, but you have to accept their answer
D.
Impeachment can use reputation/opinion or extrinsic evidence
II.
Main idea once D opens the door, Prosecutor can cross-examine
about specific acts or arrest that reflect that character trait that was
introduced.

III.

7 ways to impeach in cross-examination

Collateral matter- look at what is at issue in the litigation and then

anything that is not directly related to whats at issue
o Ex: civil case as to defamation, where character is at issue. I
want to bring up your rep in the community as to whether youre
a good church going person; this is collateral and no ee b/c its
not relevant
o Criminal case, I m the D charged w/ homicide. I get on the stand
and say its self-defense, Im a good person. P says she has
reason to believe that I stole money from an employer. She asks
me. If she has record of it, she can use that to impeach me
o If its not necessary to the underlying issue
o *Whats the purpose of the underlying evidence

Specific actscan always ask about it, so long as theres a relevant

purpose and it usually has to be for truthfulness
1) am i a civil case or criminal (has to be criminal)
2) is it reputation, opinion or specific acts
3) if specific actsif offering to show
with prior bad actscant use EE to prove this; if they say no, unless
you have prior conviction, then I would use your prior conviction
can never use EE
Evidencerelevancy and hearsay
o Character evidence?
When can character actually be at issue?
o Whats the purpose for the offer of the evidence
o After identifying, then ask if its relevant
o Then ask if they can do it

o With characterevidence is being used to show action in

conformity is inadmissible
Unless its character for truthfulness, or MIMIC
o Am I civil or am I criminal?
If civilonly comes in if character directly at issue
(negligent entrustment, defamation) this is rare, so 9/10
wont come in
o What is the character evidence, whats the purpose?
Does it go towards veracity, truthfulness honesty can
come in b/c solely by virtue of the fact that witness is on
the stand, their credibility for truthfulness is at issue
Is it propensity? Cant come in
o Who are we trying to introduce evidence for about truthfulness?
o What are the using? Whats the method?
Opinion, reputation, or specific acts
Be carefulwith specific acts, usually you can only inquire
about specific acts on cross examination. You cant used
extrinsic evidence to prove a prior bad act
Is it extrinsic?
o Child testifying that he recognized the robbers as C and D. wants
to introduce school record that kid lied and suspended
Whats the purpose? Kid lied
The record is extrinsic evidence, cant use this to prove a
prior bad act, and that is being used to show character (not
to impeach)
o Limitation on the methodYou cant impeach to show prior bad
acts, can only impeach to show a conviction

Character doesnt come in in a civil case unless its a issue (malpractice,

defamation, negligent entrustment)
character for truthfulness can come in in ANY case
1st thing to askare you in a civil case or criminal
he cant bolster b/c he cant do it in a civil case, unless its to bolster, but
at this point nobody has introduced evidence of his bad character

Attorney= think of privilege. Same with doctors, spouse, and clergy

members

I.
II.

***heres list of crimesRA RAheres my defenses (they apply to

specific intent/general intent crimes and whether it matters), and then
crim pro defenses

CRIM- NJ just uses CL so no degree crimes

o If voluntary intox is defense to specific intent crimes, it will
reduce it to general intent
Aid encourage abetting ( )v. accessory after the fact
2012 Supreme Court says you cant put GPS on the car, its
unconstitutional. Need a warrant to put GPS on car
Separate heading constitutional defenses. Its an overall defense to
the intro of the body

I.
II.

sdf
sdfsd
Start w/ crimes, do RA RA for all crimes; then defenses to crimes and
then criminal pro defenses
all possible claims think of it as probable, not possible
ask: what is your must v. may
o mustwhat are your types of murder; manslaughter
o start w/ murder v. manslaughter; accessory after fact v.
accomplice; admissibility of GPS tracking device
o 4th amendmentsearch and seizure

dsf
dsfsd

5th Amend right to counsel

o Miranda
o Applies at custodial interrogations
o Has to be that you arent free to leave and you know it and
theres police questioning
o Carefulonly triggered upon custodial interrogation. So youll
have to see Miranda rights given before
o If someone confesses and its before any police questioning (he
may have been under arrest and in custody, but no questioning)
o **Not offense specific; applies
o Miranda applies to testimonial things, so right to counsel
wouldnt apply
th
6 amend
o Attaches once filings, arraignments, indictments
o Has to be a crime to which jail time is attached (so cant be for a
ticket, or citation)
o *Is offense specificonly applies to crimes in which judicial
proceedings have begun
o Only attaches to the crime in which a filing a
No right to counsel when person is in a lineup; but if its post charge
lineup then you would have right to counsel

When theyre stopped and smell marijuana, the basis is the checkpoint.
The smelling of the marijuana turns it into prob cause
o If you didnt have the stop, youd need reasonable suspicion
o When you have the stop, just need probable cause
I.

Justiciability

A.

Checklist of justiciability issues:

1.
Advisory opinions
2.
Standing
3.
Mootness
4.
Ripeness
5.
11th Amendments ban on suits against the states
6.
Absention
7.
Political questions

B.

Advisory Opinion
1.
How issue arises usually arise where a state court issues
an advisory opinion (as allowed by the procedures of most
states), and the loser seeks review in the US Supreme Court
2.
Typically, youll say that even if the state court advisory
opinion is based on federal law, the Supreme Court cannot hear
the issue b/c there is no true case or controversy as required
by Article III

C.

Standing
1.
**Most important aspect of justiciability on the exam!
2.
For every claim asserted anywhere on your exam,
ask yourself, Has P suffered, or is she about to suffer, a
concrete, individualized harm, that would be redressed
by a favorable result in a lawsuit?
a)
Answer must be YES to have standing!
3.
Checklist for Standing:
a)
P must have suffered injury-in-fact, or be likely to
suffer one reasonably soon;
b)
Ps harm must be concrete, not abstract;
c)
Ps harm must be individuated, i.e., not the same as
that suffered by every other citizen or taxpayer;

d)
The action that P is complaining about must have
been the but for cause of Ps harm; and
e)
A favorable decision in the suit must be likely to
redress the injury to P
D.

11th Amendment
1.
Private suits against states whenever a suit for damages
is brought in federal court by a private citizen against a state,
theres a good chance the suit is blocked by the 11th Amendment
a)
This is true whether P is a citizen of the defendant
state or some other state
2.
Exceptions:
a)
Suits against a state by another state or by the
federal government
b)
Suits against counties, cities, or anything but the
state itself
c)
Suits for an injunction against state officials directing
them to cease violating federal law (but a suit to force a
state official to obey state law IS covered by the 11th
Amendment and thus not allowed in federal court)

E.

Political Questions
1.
2 ways to be political be alert to possible nonjusticiable political questions. Remember that there are 2
different ways a question can become a non-justiciable political
one:
a)
Given to another branch
(1)
This can happen where Constitution gives the
problem to the executive or legislative branch to
resolve, rather than the judiciary
(a)
Ex: anything to do w/ the procedures or
grounds for impeachment
b)
There are no manageable standards to guide the
judiciary in deciding
(1)
This type of fact pattern is relatively rare
(2)
Ex: P claims that a particular tax is so
burdensome that it amount to an uncompensated
taking in violation of the 5th Amendment. This
issue is a non-justiciable political one, b/c no
standards exist to tell the Court how to decide
2.

F.

II.

State Action Problem

A.
Be on the lookout for State Action problems in any question that
involves the rights of individuals (i.e., due process, equal protection,
freedom of expression, freedom of religion, etc.)Remember that
these constitutional guarantees ONLY come into play when the
government is acting
B.
TIP BEFORE YOU START TO WRITE ABOUT HOW DP, EQUAL
PROTECTION, OR OTHER GUARANTEE HAS BEEN VIOLATED, MAKE
SURE THAT THERE IS STATE ACCTION, I.E., THAT THE CHALLENGED
ACTION IS REALLY ACTION BY THE GOVERNMENT

III.

Appointments
A.
Any time your fact pattern involves the appointment or the firing
of a federal official, be alert to possible separation-of-powers problems
1.
Appointment the President, NOT Congress, has the power
to appoint federal officers
a)
Federal officers include ambassadors, federal
judges, Cabinet members, agency heads, etc
2.
Advice & consent by the Senate when the President
appoints a principle officer of the US (i.e., a top-level officer)
the appointment does not take effect until the Senate advises
and consents, i.e., approves
a)
This applies to members of the Cabinet,
ambassadors, and federal judges
3.
Delegation as to inferior officers Congress CANNOT
appoint inferior (non- top-level) federal officers either. BUT it
CAN decide which of the 3 players (the President, the federal
judiciary, and the heads of departments, i.e., Cabinet
members) may appoint any given inferior officer
B.
Removal
1.
The most frequently-tested area involving appointment of
federal officers involves removal of officers once they have been
appointed
a)
Removal by Congress acting alone Congress may
NOT itself ever remove a federal officer, except by
impeachment
2.
Limits on Presidents power of removal BUT Congress
may limit the Presidents right to remove a federal official, at
least officials working for or heading independent agencies,
and officials who are pure-executive-branch but are inferior
officers
3.
Cabinet members Congress may NOT limit the
Presidents right to fire high-level purely- executive-branch
officers (e.g., Cabinet members)

IV.

Substantive Due Process

A.
1st Step decide whether the right at issue is fundamental or
non-fundamental
B.
Fundamental Rights the ONLY rights that are fundamental for
substantive DP purposes are those that involve the right of privacy or
right of autonomy.
1.
Right to marry
2.
Right to bear/not to bear children
3.
Right to decide how to rear ones children
4.
Right to decline unwanted medical treatment (and possible
the right to commit suicide if competent and terminally ill)
5.
Possibly, the right to control ones dress and personal
appearance
C.
FUNDAMENTAL RIGHTS= STRICT SCRUTINY
1.
Government must show that law is necessary to achieve a
compelling objective
D.
NON-FUNDAMENTAL RIGHTS= RATIONAL BASIS
1.
Law is rationally related to a legitimate governmental
purpose
Testable Areas on Fundamental/Non-Fundamental Rights:
1)
Contraception
2)
Abortion rights
3)
Marital privacy
4)
Gay sex
5)
Same-sex marriage
6)
Unmarried minors
7)
Living wills & health-care proxies
8)
Assisted suicide
V.

Procedural Due Process

A.
Generally whenever you have government denying a person a
job, license, benefit, etc. consider whether the individual was entitled
to procedural due process, and if so, whether the requirements of
procedural due process were complied with

B.
1st step make sure there was a government action in the denial
C.
2nd step check to make sure that what is being denied is life,
liberty, or property
1.
Life youll never have to worry about this being taken
unless fact pattern deals w/ the death penalty in criminal cases
2.
Liberty
a)
P is denied right to drive
b)
P is denied a license that she needs in order to
practice her profession (e.g., law, medicine, accounting,
teaching, truck-driving, tour-guiding)
c)
P is deprived of the right to raise his family, because
of charges of child abuse or neglect
3.
Property *most common*
a)
Government benefits receipt of welfare payments,
right to occupy public housing, right to take certain courses
in public school or to participate in extracurricular activities
sponsored by the public school
(1)
If youre already getting the benefit
government is prob depriving you of a property
interest if it tries to terminate the benefit
(2)
If you are first applying for the benefit you do
not have a property interest yet, so no procedural DP
issue
(3)
Key part of analysis whether the state law
gives P a legitimate claim of entitlement to have
the benefit continue
b)
Government job same analysis as above
(1)
Already have the job and now trying to
terminate= prob have a property interest; test is
whether law gives P a legitimate claim of entitlement
(2)
Applicant for the job no property interest
c)
SUMMARY= IF YOU DO HAVE A LEGITIMATE CLAIM OF
ENTITLEMENT, THEN YOU HAVE A PROPERTY INTEREST
THAT CAN ONLY BE TAKEN AWAY BY COMPLYING W/
PROCEDURAL DP. If you dont have a legitimate claim, then
you have no procedural DP rights either
D.
What procedures are due?
1.
If P has a property or liberty interest that is being taken
away, P is entitled to some sort of procedural DP
2.
Procedural safeguards to consider (in ascending order of
the burden that they typically put on the state):
a)
Right to receive a statement of reasons why the
benefit is being cut off;
b)
Right to a hearing at which P can plead her case;

VI.

VII.

c)
Right to have counsel present at the hearing;
d)
Right to appeal the adverse decision to a higher body
*In general, you should conclude that P has the right to
counsel and appeal ONLY where the proceedings are
criminal or quasi-criminal, but you should be relatively
quick to conclude that P has a right to a statement of
reasons or a hearing, even in non-criminal situations such
as loss of a job or financial benefit
Miscellaneous Clauses
A.
14th Amendment Privileges & Immunities Clause
1.
Generally fact pattern involves a person who is
prevented from traveling from state to state, or blocked from
voting in a national election
a)
If state is discriminating against people who recently
moved into the state, the clause is probably violated
B.
Article 4 Privileges & Immunities Clause
1.
Fact pattern involves a target state that discriminates
against out-of staters who have NOT moved into the target state
C.
Takings Clause
1.
Fact patterns involves land-use regulation by the state or
federal government
2.
Main kinds of regulations that should put you on notice to
look for a Takings problem:
a)
Zoning regs;
b)
Environmental-protection regs; and
c)
Landmark-protection regs
3.
TIP: If government is telling the owner, You cant do suchand-such with your property or If you want to do such-and-such
with your property, youll have to submit to the following
conditions there is likely to be a Takings issue
4.
Test for a land-use regulation to avoid being a taking, it
must not deprive an owner of all economically viable use of his
land
Freedom of Expression
A.
Speech v. conduct for each activity being restricted, 1st deal w/
the issue: Is there an expressive component to the activity?
1.
If YES youve got a freedom of expression issue

B.
Unprotected categories 5 categories that are of so little value
that that get no 1st Amendment protection at all (as long as govt is not
singling out particularly disfavored viewpoints, something that will
trigger strict scrutiny even for an unprotected category)
1.
Incitement
2.
Obscenity
3.
Misleading or deceptive speech (i.e., fraud)
4.
Speech integral to criminal conduct, such as speech that is
part of a conspiracy to commit a crime or speech proposing an
illegal transaction
5.
Defamation
TIP IF YOUR FACTS FALL INTO AN UNPROTECTED CATEGORY,
YOU DONT HAVE TO WORRY ABOUT WHETHER THE GOVT IS
UNREASONABLY RESTRAINING EXPRESSION, AS LONG AS GOVT
IS BEING CONTENT NEUTRAL
C.

VIII.

Content-Neutral v. Content-Based
1.
Once youve identified a situation where govt is
substantially impairing protected speech or expressive
conduct, decide whether the regulation is content-neutral or
not
a)
TIP Ask whether the harm the government is trying
to prevent would exist to the same degree if the
listener/read didnt understand English. If answer is NO,
then the govts action is prob content-based
2.
If regulation is content-based apply strict scrutiny
3.
If regulation is content-neutral use 3 part test (ALL of
which have to be satisfied):
a)
The regulation must serve a significant
governmental interest;
b)
Regulation must be narrowly tailored to achieve that
objective; and
c)
Regulation must leave open adequate alternative
channels for communication

Freedom of Religion
A.
Fact patterns involve religion, religious beliefs, church, parochial
school, God, prayer, etc.
B.
Step 1 choose the right clause

If govt seems to be favoring religion generally, or favoring a

particular religion over the rest of society ESTABLISHMENT
CLAUSE
If govt seem to be disfavoring a particular person relative to the
rest of society, in a way that is related to that persons religious
beliefs FREE EXERCISE CLAUSE
Illustrations:
Establishment Clause problem school prayer; religion in public
schools
Free Exercise Clause problem P cant get unemployment
benefits if she doesnt make herself available for Saturday work
forbidden by her religion
C.

Establishment Clause
1.
TIP: a special type of establishment problem is posed
where government favors one sect or religion over another. This
kind of preference is virtually per se violative of the
Establishment Clause

3-part Test Lemon Test

1)
Government action must have a secular legislative purpose (but
its OK if there is also a religious purpose);
2)
The act must have a primary secular effect; and
3)
The government action must not involve excessive entanglement
of government in religious affairs, or religion in government affairs
NOTE the 2nd prong is the one that is most likely to be violated in the
fact pattern, since a large variety of government programs seem to
assist religious groups more than they benefit other groups
Analyzing A Religion in Public School Problem
Ex: state gives some sort of financial aid to religious schools or to
students who attend religious schools
1)
If the program benefits all students or even all private school
students (including non-parochial students), the fact that the biggest
beneficiaries are religious students is not fatal

2)
If the assistance is being rendered to a college or university, its
more likely to pass muster than when it is rendered to a secondary or
elementary school
3)
Loans of tangible objects, such as textbooks or school buses, are
easier to justify than loans of personnel, since the loans of tangible
objects involve fewer supervisor/entanglement problems for
government
D.

Free Exercise Clause

1.
In analyzing free exercise problems, be on the lookout for 2
different kinds of scenarios:
a)
P wants to do something that is required by Ps
religion, and the government blocks him from doing so
b)
P doesnt want to do something that is forbidden by
her religion, and the government requires her to do so
(typically, as a condition to the receipt of some kind of
government benefit)

IX.

PIC of 14th amendmentalways your wrong answer

o Usually deals w/ fundamental right to travel
o Slaughterhouse rules

Con Law what do these major rules stand for? What is DCC? What is
EPC? Put in 1 sentence explanation
o Always start off with EPC in your answers b/c its the only con law
thing that has 3 levels of scrutiny
o 5th amendment EPC applies to the states through 14th A.; says no
state or government can treat people diff. when analyzing cause
of action, there are 3 types of classification- suspect class (such
as race, etc) that require strict scrutiny. Then define strict
scrutiny, etc.
o 1st EPC w/ gender; and ages
genderintermediate; agerational basis
nd
o 2 fundamental right to keep family together but they prob
wont have standing
2nd instrumentalities of commerce

o PIC Art 4 and DCC (cars from instate v. cars from out of state)
o PIC, economic rights, civil liberties [ability to earn a living]
preference to in-staters v. out of states with respect to their
ability to earn a living
Ability to earn a living focus is basic rights, pursuing
careers/interests
o Necessary to achieve a substantial government interest
o Our clients will argue that it discriminates, right to use a vehicle
to attend college. School will argue that it wont affect their
ability to go to school; they can park in parking lot, park in
driveway
Town will prob win this. Wont impact their ability to earn a
living
o DCC DCC provides that state and local laws are uncon. If they
place undue burden on interstate commerce. Doesnt require
discrimination but it can. In discriminating, it substantially
burdens interstate commerce.
Interstate commerce is broadincludes channels,
instrumentalities, etc.
Necessary to achieve an important/substantial government
purpose (this is the standard for both DCC and PIC;
Discriminates and burdens commerce; concerns vehicle
(instrumentalities) and streets (channels). Town likely to
argue that it doesnt burden and is likely to win.
rd
o 3 all residency requirements are done under EPC b/c youre
discriminating against in-staters and out-of-staters
o This is suspect classification requiring strict scrutiny. Residency
requirements which are more than 50 days are too much
Next time I review con law, put in 1 sentence rule of what is
substantive DP, procedural DP, EPC, P&I, DCC (what is its). Then flush
it out
o Then have something for content-based restriction or conduct
based (conducttime place or manner/ or forum) (content
neutral v. content based); then do something for religious. Also
for state action and standing
o State action- 1st question is do you have state action? If no,
doesnt apply b/c constitution doesnt apply to private citizens.
Causation, injury, redressability (try to find essay that talks about
this)

After you consider state action w/ 1 sentence rule (US constitution

generally doesnt apply to private action and therefore state action
must be established. In addition P must have standing to bring
constitutional claim. Standing requires injury in fact, injury must be
fairly traceable to govt conduct, and the court must be able to redress
the injury
o Standingripeness, mootness, political question,

Strict scrutiny- never upheld, rational basis- always

Conduct based (1st amend)symbolic speech is its own category, then
1st- is it content based or conduct based?
o If conductwhats my forum, and is it time/place/manner; is it
content based or content neutral
o Strict scrutiny analysis regarding time/place/manner in public
forum
Symbolic speech- govt can regulate conduct that communicates if it
has an important interest unrelated to the suppression of the message
and if the impact on communication is no greater than necessary to
achieve the govt purpose (same standard as DCC and P& I)
1st amendment speech issueswill only talk about strict scrutiny or
intermediate; theres no rational basis in speech
protected speechthen consider if its a lesser protected speech
o fighting words, incitement of illegal activity, obscenity,
commercial speech and defamation

I.
II.

Congress committees
o Standing committees- can generate legislation
o Select committee- primarily advisory in nature
o Once a committee becomes

Aliens preemption
o Immigration law
o Federal law will preempt state law
o Congress can put aliens wherever
DEFRSDR
FSDFSD
CIV PRO ESSAY
o **write down personal juris as problem areaneed to organize
my explanation of this
o start off with due process- always first place to start w/ PJDP
clause of 14th amend says court has to have PJ to adjudicate
matter over party
o domicile, acts going into NJ, etc.

o in order for exercise of PJ to be constitution, need to have

sufficient minimum contacts (international shoe)
o min contacts can be 1 of 2 types- continuous/routine so court
have general juris; or specific juris where it arises out of cause of
action (claim relates to or arises out of context made by
defendant)
o NJ court has jx over Milan America
o Now stream of commerce argument- while Milan France does
come into US, they have never come into/done anything in NJ;
purposeful available to minimum contacts to stream of
commerce now balance this with traditional notions of fair play
and justice (prob wont be fair in the balance test see Asahi
case)
Dont combine the questions, keep them separate
Part 3- indemnification or contribution
o Milan America will file suit in FL because that will get PJ over
Milan France so then you can do your lawsuit for purposes of
contribution or indemnification
Jurisdiction in civ prosubject matter, personal jurisdiction
o Con law- due process
o Minimum contacts (gen v. specific)
o Purposeful availment