 no state shall eneter into a state with another state withoiut the consent of

congrerss if that K could increse the political power of the contracrting state by
possibly interfering with the supremacy of the US. Congressional consent was not
required for states to agree 1. To settle a boundary dispute between them, B. buolt
bridge or tunnel across an interstate river 3. Resolve regional problems involving
income taxation of citizen, mass transit, pollutuion, water resources, or prevent the
spread of agricultural disease

Amending the cons - nothing new can be put into the constitutuon and nothing can
be taken out the const except thru the amendment process, but it is extremely
difficult to amend the const. It can be done by 1. 2/3 vote in both houses of congress
and ratification by 75% of the state legs 38 states, or by a state constitution
convention. All 27 amendments to the constitution have used #1. 2nd way, the states
can take the initiative if 2/3 of the state leg petitio congress to call a national
constitution convention, any resulting proposed amendment must then be approved
by 75% of the state leg or state const conventions

The 8th amendment - prohibits excessive sanctions. It states that excessive bail
shall not be imposed. Excessive fines shall not be imposed, including civil or criminal
forfeiture of property. Cruel and unusual punishment shall not be inflicted, which
concern mostly with the duration and conditions of incarcerations. The 8th
amendment only prohibits, excessive bail, but does not guarantee a rigght to bail…
does it is not violated on the 8th, on the ground of the D danger to the community
(clear and convincing evidence or because the D is a serious risk of flight
(preponderance of the evidence). Congress can catergozie whole classification of
cases in which bail is not available (example, if the D crime is punishable by
impriosnment of 10 years of more, or the crime involved drugs or guns, there arises a
federal rebuttable presumption, that there are no conditions on which can
reasonable assure the D appearance at trial. This shifts the burden to the D to
produce evidence, that he does not pose a danger to the community or a risk of
flight. Most bail haberus corpus proceedings involve bail that is so excessive that it
is an abuse of discretion, or where a judge abritrarily refused bail.

At a bail source hearing a D has a burden of proving by proper dance of the evidence
of proving his bail money is legit, and not the fruit of illegal conduct. Under the 8th
amendment, the SUP CT gives grant deference to legs mandatory jail terms even tho
they are grossly disportioncate to the time committed. The ct upheld life
imprisonment for a first time offender, possessing only 24 grams of cocaine (Half a
candy bar), or under the 3 strike law, that sentences a D to life, or 50 years , even
tho the 3rd offense was petty larceny.
There is a right to keep and bear arms for immediate self defense within the home
regardless of whether the gun possessor is within a milita. Laws that require guns to
keep in a home, unloaded, dismantle, or qwith a trigger lock where struck
downnnnn….every circuit ct that has address this issue has invoke intermediate
scrutiny and not strict. State laews that require guns to be licensed do not infringe
on the 2nd amendment. The 2nd amendment does not prohibit the govt from
regulating 1. Those people who can not posses a gun (a. Mentally ill b.minors, c.
Convicted felons, d. Those convicted of misdemors offenses involving domestic
violence are banned from life for the right to possess a firearm. E. Dishonorably
discharged soldier, since the military determined he was no longer responsible to
bear arms on the battle field, then this is a sufficent reason to prevent him from
bearing arms as a civilian….2. the type of gun that can not be possessed (A. Short
barreled riffle, B. Weapons useful for military service such as automatic assault
weapons) 3. Places where guns can not be possessed (schools, govt buildings,
airports) These policies usually impose strict liability having no means rea element,
thus having no means Rea element results in strict liability

Federalism (UBE July 2018) - federalism involves the sharing of power between the
federal and the state governments, power can be shared 1. Exclusively by the states
2, exclusively by the federal govt 3. Concurrently by both. But such to the supremacy
clause. Federal law will always preempt a conflicting state law. Federalism juris
seeks to limit congress and its law making powers by preventing congress from
unduly expanding federal power into areas that should be government by state law…
on MBE questions, first determine if the state of federal gov is involved, then look to
see whether the choice involves a clause in the constitution that is either a sourceof
power or a limitation of power (A. A source of the fed gov power is VET CAPS or
PIEPER FIT, or a limitation of government power is the first amendment, 4th, 5th and
6th, 8th, 10th or 11th or the civil war amendments. (13th 14th 15th)

Exclusive federal power - the constitution expressly provides that no state shall
enter treaties, print money, declare war, nor lay duties on imports or exports without
the consent of congress…states may not attempt to affect forgein policy matters, by
a state enacting a law that prohibit. Its own state govt from conducting business
with private companies that do business with certain forgein companies, because
forgein policy is exclusively a federal power. B. Prohibiting deceased citizens from
pasing assets thru there estates to citizens of forgein countries

2.exclusive state power, the 10th reserves t the states those powers that the
constitution does not expressly delegate to the federal govt, involving traditional and
essential state functions necessary to maintain a states sovereignty, (its law making
power, protecting of criminals under state penal laws, admitting attornies to the
practice of law, probating wills, voting in state or local elections, state prisons, as
well as police and fire protections (Congress could lower the voting age to 18, for
federal elections, but not for state elections, because state voting is a state core
concern, this was accomplished by the 26th amendment to the cosnt. Rule - when
congress becomes involved in state fundin, it then can influence or regulate state
core policies in these 10th amendment areas by inticing but not coercing states to
adapt federal policies by conditioning the federal funding for welfare, Medicaid
medicare, highway funding federal funding for education, on the state adapting the
federal program.

11th amendment (UBE July 2017)- the 11th amendment protects states, state
agencies, and state officials (governor, head of state agency, attorney general) by
giving them sovereign immunity from money damage claims created by a federal law.
It prohibits federal question claims or DJ state claims seeking money damages
against states, state agencies or state officials in there official capacity in either 1.
The federal ct 2. Federal agency 3. States own ct where that claim is based on
federal law……

Cnngresses broad power to regulate interstate commerce does not include the
power the power to override a states 11th immunity. The 11th does not prohibit the
following claims 1. Money claims against a state based on federal law in federal ct
commenced by A. The US GOVERNMENT B. FEDERAL AGENCY or C. ANOTHER
STATE because when states originally adopted the US constitution they impliedly
surrendered immunity from suchh suits 2. A money damage claim against a state
official inn her official capacity is technically a suit agains the state and is barred by
the 11th, however money....damage claims 42 USC 1983 against a state employee
personally or personally against. A prison guard or police officer, and the P is
seeking to require from the persons personal funds (NOT STATE FUNDS) even if the
state will reimburse the official. 3. Induction claims naming a state agency or state
official in her official capacity but not the state itself to prospectively stop violations
of federal law or to enjoin the enforce of an uncosnittiional state statute. (UBE
ESSAY JULY 2017) money actions against municipaltiyes (cities, counties or towns)
which do not receive 11th amendment immunity and thus can be sued under federal
law for money damages in the federal ct (see lecture 1, SCRAM, choke hold hypo) 5.
Where there has been a clear and unequivacal waiver by the state of its 11th
immunity, this most frequently arises under congresses spending power by offering
states federal finacial assistance’s but conditioning the funding that the state waive
its 11th immunity under that federal program 6. VOL 1. Page 76 last paragraph & p 77
first 3 paragraph. When congress enacts laws to protect federal civil rights, then
under the enforcement clause of the 14th amendment sec 5, then to prevent due
process or EP violations by state action congress has the power to extinguish 11th
amendment sovereign immunity and to expressly permits plantiff to sue the state for
money damages but only if that waiver of 11th protection is a porportional remedy
for the constitutional problem involved and only if the language in the federal statute
makes congresses intent unmistakably clear (explicit reference to the 11th
amendment or to state sovereign immunity, if a ct has to refer to that laws legs
history to determiine congress intent then its intent is not unmistakably clear. As a
condition to waiver a state sovereign immunity congress must document evidence of
a pattern of pervasive state violations of civil rights in the area involved (ex
congress passed the American with disabilty act, and the federal age in
discrimination ampoyement act and each contained a clear statement of congresses
intent to abolish 11th amendment immunity for state violations of these federal laws.
The ct held that the 11th waiver was a disproportionate remedy, since there was not
suffiecent evidence in the congressional record, that age or disabilty discrimination
by state was so pervasive and wide spread that it requrieed waiving a states 11th
immunity. The ct said there must be CAP (congruence and proportionality between
the constitution wrong sought to be prevent and the means adapted by congress to
achieved it goals.

2. Sharing power concurretnly (both state and federal can regulate in the same area)
the regulation of commerce is ashare area, but iunder the supremancy conlause in
the constititon, once the fed govt acts then any inconsistent state law state activity
or state civil claim is preempted by federal law, since the con expressly states that
federal law shall be the supreme law of the land. Under the federal cigratte label
law, congress preempted warnings place don cig packaging and implied prohibited
states from imposing any state requirement different from those required under the
federal act. This federal law preempeted a DIM strict products liability claim for
inadequate warning as a long as that warning complied with a federal requirement.
Usually the only issue arising in a preemption argument is whether congress
intended to preempt (overuse) state law, there exist a rebuttable presumption that
congress did not intend to displace the states police power, unless that intent is
clearly expressed by congress. Express preemption occurs when a federal statutre
specifically precludes state regulation in an area (for example all stae laws are
superseded in the area of employee retirement plans), this language was designed to
establish pension plan regulation as exclusively federal area…2 types of preemption,
field preemption which arises when federal regulation in an area is so conprehsive
and pervasive that it demonstrates an implied intent by congress to occupy the
entire field, leaving no room for states to supplement the federal law (federal
arbitration act, preempts the field for Abritation if the contract involved has the
slightest connection with interstate commerce (state and federal abritration
example)

Pilot and airllane aviation safety including laws relating to price routes or service of
an airplane, the sup ct held this included adverstiment and marketing

Transporting or concealing aliens into or within the US (alien smuggling) (federal

laws so perverse leaves no room for state to add there own shit)
Nuclear

Implied Conflict Premption, which arises when a state law conflicts with a federal
law so that 1. It is impossible to comply with both federal and state laws (this is
rare) (federal law prohibiting produce with more than a 2% lead content, but a state
law prohibit produce with less than 3% led content) (federal law requires that the
labelling and design of a generic drug must be identical to the drug brands label !
Allow a state strict liability or breach of warranty claim against a generic drug
manufacotor for not altering its label directly conflict with federal law, making it
impossible to comply with both state and federal law…the state DIM strict libaility
claim for inadequate warning is implied preempted by federal law. The 2 laws can
stand together but the state law frustrate or states as an obstacle to accomplishing
the federal goal
Corp can sell its shares for future services…but note the corporate debt on the stock
or hold the stock in escrow until fully paid, because if that SH sells shares to a BFP
then buyer takes the stock free from the shareholders debt to the corporation…can
restrict a SH right to transfer the shares, it can require SH or director approval.A
SECURITY INTEREST IS PERFECTED BY F TIP - Filing a financing statement, not note
the lien on document of title, take control, of the investment property (bank account
or brokerage account) P possessory security interst, Be conscious of self help
without breach of the peace and know the 4 P, proceeds from collateral, whcih are
automatically perfected for 20 days, PIG collateral, and FIF C for goods, know the 5
priorities in your notes, perfecting the security interst and FTIP

LCC - paprticaption exeception, voluntarily doissolve an LLC, which in most states

requires only a majority vote, but under the revised ULLCA it requires a unanimous
vote, but thats a minority of states, thats a voluntary dissolution….involunatry, ID
FLOW, oppressive conduct, 2 management is unable or unwilling to promote the
purpose of the LLC, 3 financially unfeasible 4. Management is DEADLOCK…trust fund
doctrine, those in control hold th assets in trust for the creditors! If you assign
interst, that does not give the assign standing to commence a derivative action and
can not participate in management

GENERAL PATERNSHIP - these are favored by inexperience business people because

of the ease in their formation
LLC - NY calls them registered limited liability partnerships. These are partnerships
registersed with the state and they limit liability of ALL partners….Rule 0 FULL
SHIELD statutes shiield partners from Vicarious liability because of the tort or fraud
committed by another partner and 2. Debts incurred in the regular course of
partnership business, if they are insuffiecent partnership assets to pay paternship
debts, where LLP debts are solely the responsibluty of thr parternship and not its
partners . Partial shield statutes protect partners from 1, but not 2 above!!!! SOME
STATES impose personal liability on an LLP partner for the wrongful acts of an
employee who was under a partners direct supervisor and control…

an existing full liability general partnership can convert to an LLP, either by 1. Filing
with the SEC of state a statement of qualification to become an LLP and then simply
adding the suffix LLP to the partnership name. 2. Forming a NEW LLP with the sec of
state, then transferring existing partnership assets to that entity

Limited Partnership - similar to a corp, with its limited personal liability, except their
must exist one General partner who is personally liable which usually a corporation
or LLC…limited partners (investors) are liable only for the amount of their
investment, but are not personally liable, the majority view is that a limited partner
becomes liable if she participate in management or allows her name on the LP name
but only if the LP creditor reasonably believed that she was a general partner…If the
general partner never signed the LP agreement then even tho the certificate of LP
was filed with the sec of state, it did not become an LP, and is treated as a general
partnership with all partners jointly and severally liable

LLC - limited liability companies - have limited liability protection of a corp, but also
flexible of a general partnership in developing internal decision making of the LLC…
LLC memebers contribution to capital, lcc are funded by contributions by its
members, which may be tangible or intangible property or other benefits including a
K for future services to be performed. Altho the ULLCA(1986) allow enforcement of a
members ORAL promise to make a contribution, 39 states invoke the SOF of such
promises, requiring the contribution promise to be in writing signed by the LLC
member (Similar to MBCA)…LLCs functions under an operating agreement which can
easily alter the LLC law, it is a K amongst the LLC members and defines their rights
and obligations. The revised RULLCA (2006) allows the operating agreement to be
oral, but almost all states still follow the ULLCA requiring a signed writing. An
operating agreement may contain, an arbitration clause, attorney fee shifting
clauses, forum selection clause…LLC involve 2 types of participates, 1. Members
(shareholder) 2.Managers , members have an ownership interst, managers manage
the LLC, and may or may not be LLC members. If nothing is said in the operation
agreement as to management, then it is a member managed LLC. Managers owe a
fidicurary duty to LLC members, Mutiple managers act by a majority vote in the
interst of its members. If the LLC is member managed it resembles a partnership,
because each member manager is an agent of the LLC. Under the LLC law each has
a per capita equal right in management and profits, and not A pro rata right
according to their financial contribution according to the LLC…if nothing is said in
the operating agreement y’all get the same…each member manager can bind the lclc
into a K entered into in the ordinary course of LLC business, if it is manager
managed it resembled a limited partnership with only the manger (general P) having
agency authority to bind the LLC. The LLC articles of organization can limit the
authority of a manager (ex to borrow money or to sign aninstrument affect the LLC
interst in realty) even tho the realty transfer was done in the regular course of the
LLC business (for example limiting the managers right to sign a deed or mortage), AN
LLC manager owes a fiduciary duty of care and an undivided duty of loyalty to the
LLC and she cant misaportaite an LLC business oppurtinuty that would be benefical
to the LLC and she cant compete with the LLC. However in many states, that
exercise freedom of K , this fidicuaruy duty of loyalty can be waived in the operating
agreement. If an LLC doesnt execute doesnt execute an operating agreement then it
is governed exclusively by the LLC law, neither an LLC member or a limited party or
a corp shareholder, corp director or LLC manager is personally liable for the business
torts or breaches of K sole by reason of being a member or acting as manager or
director. However in almost all states, underr the participation EXCEPTION,
members shareholders directors or managers who directly participate in tortious
conduct in furtherance of that business including fraud, and all torts that they
authorized directed or participated in are personally liable even tho they were acting
as agents for that business org. Absent contrary language in the operating
agreement the LLC can dissolve A. By majority vote under the Uniform LLC ACT, or 2.
Unanimous Votee under the REVISED uniform act

If an LLC member is not a manager then no fiduciary duty is owed.

Aprassioal rights for desenting shareholders or LLC who opposes an organic

fundamental change in an organization structure (CAMP) are entitled to appraisal
rights to have 100% of their shares appraised (value) and purchased back from the
corporation rather than continuing in a business that is now operated differently
from that in which she originally invested. When CAMP action is completelated at a
meeting the corporate or LLC members must be advised in advance and the
members must be sent an appropriate form for desenting. CAMP…..as a condition to
appraisal rights, the deserter must file a writing objection ot the CAMP proposal
before the SH vote & advising the corporation that if it is approved the SH would
seek AR.,…fadfter the CAMP vote is approve then the corp must submit its price offer
within 10-60 days (??) if the SH objects to the price, the remedy is Ct proceeding
asking the ct to fits a fair price. Cts may award attornies fees to a SH, if the ct
awards an amount that material exceeds the amount offered by the corp….there is
no single factor to calculate the value of a minority interst but CT frequently
consider 3 basic methods for valuing stock 1.. NET ASSET VALUE (grocery store, real
estate, furniture store, all those assets..but not with a service company).
Investments. Market Value for similar shares. In the vast majority of states, cts may
not consider that the minoruty SH shares are worth less because of their lack of
control over the corp

SH must be paid for their poprportionate SH interst. In some state cts approve an
illiquidity dsicount AKA lack of marketability discount which usually is between 20
and 50%. By statute in some states the illiquidity discount is prohibited, the ID
applies to the Revised uniform ___ Act. No payment of approasial rights may be made
if the corp is insolvent or would become involvement by making these payments. It
would amount to a preference by to _______??????? (5:49) where the SH becomes a
surbodinate creditor or can withdraw her appraisal election and continue as a SH

Preemptive rights (BAD CLASP) (SAD LAP) even when SH have expressly been given
preemptive rights in the AOI because of overriding practical business reasons PR
aren’t available if the corp is issuing its stock for AT&T COAL (A. Shares issued to
attach or keep corp employees T. Shares issued within 2 years or some states within
6 months after filing articles of incur with sec of states, Treasury shares previously
owed by a shareholder That were purchased back by the corporation and held in its
treasury (PR do not attach to these shares because there resistance would not dilute
an existing SH voting or equity rights) treasury shares can not be voted at a SH
meeting by corp management. … C. Cash was not used to buy the shares (the corp
used the shares to pay off corp debt or to buy real or personal prop…O. Shares
issued to affect an organic change, such as consolidation or merger.

Derivative A - DA most frequently charge directors with 3 different types of

wrongdoing. No feasance for failing to correct inmproer or illegal corp pratices but
most states require proof of SCIENTER (board actually knew about the improper
conduct. 2. Corp waste and mismanagement by dir 3. Directing actively breach her
undivided duty of loyalty (had conflict of interst)

Distinguished between a corp and direct action???? (here simply act who was
harmed and to whom the recovery will be paid. A DA is a claim belong to the corp
but is commenced by a minority member against those in control to correct financial
injuries harming the corp…THE SH complaint must allege a wrong to the corp. a DA
indirectly protects the investors investment, but many money judgement does not
directly benefit the SH personally, but is psaid directly to the corp. R- a DA names as
defendants both the corp and the corp WRONGDOERS…as a condition for
commencing a DA, the SH must plead with particularity facts in her verified
complaint (Fed rule 23.1) demand is made on the entire BOARD to investigate and
correct the wrongdoing, MBCA and 20 states mandate the demand without
exception ! Aterlantvely the SH may plead with particular facts that their exists a
reasonable doubt that the BD would exceercise independ and disintered BJ in
responding to SH demand thus such a demand is futile. The BD demand is require
because it is the disinterred members of the board that are In the best position to
correct the compare abuse and not by SH going to ct….typically a corp or llc
response to A DA is either 1. Motion to dismiss or Sj for failure to make a demand on
the board because a majority of the board is disinterred and could of conduct an
investigation into the alleged wrongdoing. If a demand was made on the board and
thereafter the independent members of the board conducted a good faith
investigation and determined that the dismissal of the DA would be int he corp best
interst because the lawsuit negative impact on the corp outweigh its benefits (key to
this success, is its independence. R-  SH must plead or prove SCRAM standing to
bring the DA, (she owned the Shares at the time of the wrongdoingg or they passed
to her by operation of law by the estate executory or beneficiary, and the dependent
owed them at the time of the wrongdoing. P must continue to hold the shares until
the DA is concluded otherwise she would have no standing and the ct would dismiss
the DA. Under the corp benefit RULE ct are entitled to award attorney fees to the
plantiff SH to be paid by the corp, if the DA achieved a substantial benefit for the ct.

Dir- a BD may consist of more than one director,_____ owe two types of FD 1. Duty of
care to dillegency investigate a proposed corp action and to reasonably oversea
ongoing corp operations 2.duty of undivdided loyalty not to benefit personally from a
transaction at the expense of the corp…in performing oversight duty, the bD may rely
in good faith on info and reporting including financial reports by accounts and
employees (attornies??) under its duty to act in good faith dir must estblash
procedures for corp compliance with the law, may be liable for careless and
negligence. But corp can extonatte dir for such conduct by inserting exhortation
clause in AOC (BAD CLASP) L liability, under limits liability law, managers are not
liable for orfdinary neg but only for reckless or intentional misconduct or a knowing
violation of the law. A Dir has a nondelgeable duty, thus she can not issue a proxy
permitting someone else to vote at BD meeting. She can (CANT) participate in a BD
vote, where she has a cnonflict of interst, and cant rubberstand the decisions of a
dominant director whic would breach her duty of care owed to the corp

A Qurom for a dir vote, must exist at the time of the vote, thus a director can angrily
withdraw from a meeting and defeat the quorum…for a quorum in a SH meeting a
quorum is needed to start the meeting and it can not be defeated by a SH walking
out prior to SH vote. Even if not expressly stated in the AI, directors can meet by 1.
Conference telephone call, but all dir must be able to simultaneously hear each other
speaking 2. Without any meeting by unanimous written consent, if a corp becomes
insolvent then dir or LLC owe a fiduciary duty to creditors, under trust fund doctrine,
asset of the insolvent business constitute a trust fund for corp creditors. Dir
who violate this fid dut are joint and severally liable for tort of conversion whether
they are present at the meeting or not….LLC members are only SEVERALLY LAIBLE
prop to the extend they received LLC funds or assets instead of ceeditors, to avoid
liability there disent must be promptly raised at the meeting or if absent they must
promptly note there dissent after becoming aware of it…generally corp can declare
divendded or buy back shares of stock if it is insolvent, that is they are unable to pay
debts as they become due plus payback all equity originally invested in the business
by shareholders (SURPLUS)..[payment of dividend or re…must be paid out of surplus
so the business assets remaining are sufficent to pay of all debts and SH the total
amount ORIGINALLY INVESTED IN THE CORP

Most states have also adapted nimble divends, which can be declared without a
surplus but only if the corp is solvent (paying its bills) and it made a net profit in the
current or preceding year…nimble divdends are paid outta that net profit

BJR = when Ct reviews BD unbiased decision making it is guided by BJR, prevent

judicial interference with corp decisions and presume it was made on an informed
unbiased decision in good faith, with no conflict of interest, fraud or illegality and it
was made within boards authority and in furtherance of corp purpose…this gives
disintered dir immunity from judicial interference even tho the decisions weren’t the
best or wisest and may of even caused the corp a financial law. Ct defer to the BJR
and will not interfere or second guess its good faith decision. Whether to declare a
divined falls with the BJR but if directors fix there own salary or award themselves
large bonuses or a director has a financial in the boards direction, then this self
interest defeated presumption of good faith. Ct will not apply the BJR>

Interested directors 0 when a dir or llc las conflict of interest either because she a
friend or fam stands to benefit from the trasncation either as a buyer from or seller
to the corp then conflict arise, between dir duty of undivided loyalty and his self
interest, whether inapplicable the option of BJR…translation is not automatically
voided because of a conflict, they are 2 share harbors that excuse the conflict, but
the interest dir has the burden of proof 2F (entirely fair and reasoanble to the corp
atthe time it was adapted or 2. Full disclosure of the directors interst, but any
information a reasonable person would believe was material and necessary for
making the decision and ti was submitted for a voten by disintered SH OR BD (or Dir
Committee of no less than 2 disintered dir for approval. Director committee. If
authorized in By laws or AOD the Bd may establish a contrite to act as an agent for
the corp and bind it, may consist of one member of the board, but the MBCA requires
2 disintered members to approve discontuatuon of a DA, or 2, imdecification of
director or officer 3 approving a transaction infvoving a 2F interested director or
whter the corp should decline a busieness appurtunuty
THis cant be delegated to commute V CAB (Removal of Dir, most state statutes
permit a director rto be removed by SH with or without cause unless the articles of
incorporation provide only removal for cause. Removal of Dir, generally is done at a
SH meeting but the purpose must be anounced for the meeting, otherwise nigga cant
be removed att that meeting. Vacancy on the BD (unless the AI provides others,
vacancy on the BD for any reason - died, resigns, removed without withoutcause, can
be filed by majority SH or BD remains (even tho # may be less. Than a quorum)…
Limiting Dir liability…to encourage capable people ___corp may alienate corp liabile
for neg in excreting dir duty of oversight or care requiring a director to consider all
available info before the director votes, this exculpatory clause must be placed in
the AI. Also applies to LLC and is typically placed in operating agreement but can be
placed in original articles of formation. Corp may not elimate liability or indemnify a
director for her cost of for liability imposed of her for breach of fid duty of loyalty
where the conduct was committed (Knowing violation of thrse law, misconduct
taken for personal gain, D improper dived end..or nimble divided with no current
profit within 3 proceeding years, improper remdption of corp share (no surplus)…
indemnification of Dir & office, BD or LLC manager may adaance legal expense to
director office or corp employee or in an LLC to a manger member or llc employee 1.
In a non DA claim, criminal or civl, imdecification for legal expense and or damages
paid out on a settlement or money judgement provided the defendant acted in good
faith and reasonablely believed her actions served best interst of the company & in a
criminal action, she had no reasonable basis to believe her conduct was unlawful
(you can indemnify) …2 in a DA, imdecification only fr legal expense and only if no
adjuration of a breached duty by the defendant, doesnt have to be wholly sussefful
on the merits, such as long s there was no adjudication of her breached duty (ex
settlement without any admission of fault, or Ct dismissed it cause of statute of
limitations…C. Corp and llc may provide even greater rights for indemnification in its
A. AI. B LLC operating agreement or Art of formation C. SH bylaws D. Employment
agreement, by purchasing indemnification insurance. A Business may expressly
agree to indemnify for amounts bad back to a business in settling a DA, but as a
condition for doing so, but the Ct must first determine that the complained of
conduct was not deliberately dishonest, done in bad faith, or for personal gain & was
not improperly obtain by A BIG DR misconduct …In order to approve indemnification
the BD must agree by a majority vote of at least 2 disintered directors…Absent
disintered directors, obtain independent legal advice that the standard for
indemnification has been satisfied or 3, submit the issue for a vote of disintered SH,
if the business entity doesnt approve indemnification then the remedy is ct
proceeding asking the judge to determine her entitlement to indemnification

Dissolutions accure in one of 2 ways - but as a condition to dissolving under the trust
fund doct, corp must give creditors notice thereof for dissolving and time to submit
claims directors and LLC members must take all reasonable steps to ensure all corp
or llc debts are paid, Dissolutions can be voluntary of involvement._______ Vote for
majotity of shares unless ____for a voluntary dissolution A. At will, upon a specifc
event, or a vote of less tha a majority, an involuntary dissolution involves ct
proceeding commended by a SH on the following grounds, directors are dead locked
and SH can’t break the deadlock and either 1. Irreparable injury to the corp is
threatened or has been suffered, 2. Business no longer can conduct to the advantage
of SH…SH are deadlock for at least 2 consecutive annual meetings, but irreparable
ijury isnt required. To make it easy for aminoruty SH of a corp (MBCA) says less than
300 SH who’s stock is not traded on any stock exchange and who is locked in
because of the unmarketable of her minority shares, but has been locked out from
management Salary of dividends by those in control, then all states allow her to
petiton ct for dissolution by showing ID FLOW. The wrong oppressive refers to corp
actions that defeat a minority SH reasonable expectation when she first joined the
corp, these include a salary, voice in management, bonuses or dividends, If corp
waste is occuring, ct may appoint a receiver to preserve asset. Under 3. Judiifical
dissolvution isnt automatic cause within 30 days from commencing action, the corp
or another SH may irrevocably agree to buy out the plantiff shares at fair value to be
fixed by the ct, also ct may rescind the irrevocable offer to buy based on unforeseen
events if it is equitable to dos so.
Defamation- Sullivan V NY times! CLAM slander per se…absolute privelege of JET
LAG and qualify privelege of LIP

Intentional TORT

Imporper outside info of jury deliberation

made a clear satement that indacte she relied on racial stereotypes or animus in
reaching a verdict

Clerical error in announcing a different verdict than the one agreed upon

New trial old if can establish prejudice to sub right by clear Z& convincingly
evidence

FRE - has abolished deadman statute…however were they have sup or diversity jruis,
they awill apply Death man, if its recognized by the ct where it sits….the deadman
statute disqualifies parties interested in a civil litigation from testify about personal
transactions or communications were a diseased or mentally ill person…it protects
the estate of the disease or mental, from claims by those whom thru there own
perjury could make factual assertion that the dependent could not use in ct..a
witness is interest if she would gain or loss by the direct legal judgment, or where
that judgement could be used for or agaisnt for in some other civl action involving
the state. The interest witness can not testy as to what she overheard the dead
person say or saw him doing..transaction and communtication with a dead persin
can only be established thru the testimony of disinterested witness and documents
which can be autehicated by disinterested witness…an interested witness is
prohibited from signing away a cause of action and then testifying when the
assignee sues the D.

Refresh a witness recollection - a witness who has forgotten an event is still

competent to testify. A witness who has difficulting recollecting facts while on the
stand, can have her memory stimulated and refreshed by anything (writing, song
lyrics, or audio recording…if the witness memory is refresh, the examination
proceeds with the witness testify from her present recollection..the refreshing
offered, is not admitted into evidence, but may be admitted by opposing consul to
impeach the witness testimony….there is an absolute right, no privelege can be
invoked, for an adversary to inspect any writing used and relied upon to fresh a
witness recollection, WHILE ON THE STANNDD, if documents were reviewed prior to
taking the state, the ct HAS DISCRETION to allow or disallow inspection in the
interest of justice

Inhalf the states, and FRE, testify that has been refreshed by hypnosis is admissible.
Hyposis only affects the weight the jury affords the testimony and nots its
admissibility, in the remaining states, witness other than a criminal D at her own
trial, are incompetent to testify regarding events they could recall prior to hypnosis.
These cts may also exclude a witness testimony aboutt events he could recall
before hyponsis because hypnosis can artificially bolster a witness confidence,
impairing effective cross examination (burden, show it wasn’t suggestive), criminal D
can not be prohibited from testifying even if there memory had been refreshed by
hyponsis

Polygraphic results are inadmissible under FRE, without consent of both parties

Prior recorded recollections - can be used when a testifying witness 1. Observed the
matter recorded, 2. Is unable to totally an accurately remember the matter on the
stand, made or reviewed an accurate written while the matter was still fresh in her
memory (TO ENSURE ACURRACY), can tesify that the recorded recollection is an
accurate refection of her perceptions when made. If the witness does not
speficically remember making the record, it is sufficent to tesify it is her habit to
make such records accurately or check such records for accuracy. One the witness
acknowledge the accuracy of the record, its contents are admissible and can be
read into evidence..the actual record isnt offered into evidence, but can be offered
by an advsere party

Lay and expert witness testimony- generally a lay witness, must base her testimony
on her perceptions (what she saw, heard, smelt or felt, She can not testify as to what
she would have done under different circumstance. After testify based on her
perceptions a witness can draw conclusions and give opinions, if they are 1.
rationally based on the witness perceptions, 2 helpful to understanding the witness
tesitmony or a fact in issue, not based on scientific, technical, or other specialized
knowledge (IE expert testimony) at common law, expert testimony was only
permitted beyond the basic understanding of the average juror, under FRE expert
testimony is admissible on matters within the basic understanding of the jury, if 1.
The expert testimony is relevant (helpful to the jury, 2. Expert is qualified (suffiecent
skill, training, experience or education that makes her more competent to draw an
opinion than a lay juror and 3. The expert testimony is reliable…A. Based on sufficent
facts or data, B. Product of reliable principles and method, C. Expert has reliably
applied the prinicples and methods to the facts…experts may use there specialized
knowledge to assert jury in 2 ways, 1 to explain. 2. Draw opinion or conclusion, cts
recognize the dangers of allow an impressively expert to present novel unrelaible
evidence to the jury….following the Fry state, some ct permit testimony novel
scientic procedures or theories only after they have gained general acceptance in
the realtive scientific field…if its is generally accepted (benzene is a noncarneogen)
the procedures followed to generic expert opinion must also be reliable, proving that
the playoff exposure to benzene was suffiencent to cause leukemia. A majority of
states and the federal cts following the DABER test. Recognize that new theory may
be generally sound, but too new to have gained general acceptance, the dauber test
requires the trial judge to determine whether an experts theory has been CARPE
(confirmed by testing, reviewed by peers, widely accepted (not general), published, E
confirmed to have known rate of error…if an expert theory satisfies CRAPE, ct may
still be prohibited if it is not reasonably applied to the facts of the case…experts can
draw factual conclusions and can even conclude on the etilmate issues in the case,
if a suffiencent factual foundation has been establish to enable cross examination,
for example an expert can testify that a product was unreasonable dangerous in a
SPL case….IN A CRIMINAL CASE, experts cant give an opionin or draw a
legalnclusions tho whether the D did or didnt have the crim K necessary to commit
the crime. For example a police investigator may testify that the drugs and
parafanilia found in D car, were more constent with drug distribution than personal
drug use….but ct should prohibit investigators opionion that the D intended to sell
drugs, that inference should be felt to the jury…FRE broadly defines the term expert
to include any person with scientific technical or special reliable knowedlege, for
example book makers, or even drug user, pipe fitters?? to testify that the substance
it used was heroin…Unlike a lay witness, whose opinion must be based on the
witnesses perception, an expert can base an opinion on 1. Personal knowledge gain
by learning or examining the subject prior to trial. 2 facts or data reasonably relied
upon by other experts in the field, if those facts or data would be inadmissible at
trial, the expert can not testify about them unless they are reasonably relied upon by
other experts and the judge believes there porobative value susbtanitally outweighs
prejudicial effect…there is a rebuttable presumption against the expert dislcosing
such hearsay unless the ct determines that its probative value in assisiting the jury
substantially outwieghts its pr…facts or data gather by the expert while observing
the trial…reviewing trail exhibits or reviewing trial transcripts…an expert can
respond to hypotechical question based on facts judically noticed, 2 information
reasonable relied upon in that field, or Evidence already offered during trial or
evidence that would be offereddd

The federal rules of evidence doesnt list or provide any evidentiary priveleges in
federal question cases…in fed question case, 3 sources of privelege (Constitution,
acts of congress, federal common law)..the US sup ct has recognize federal common
law privelege protecting confidential communications made to pychariastics,
pyschologics and license social workers in the course of psych therapy, it decline to
recognize a secret service privelege…a privileged communitcation can be waived in
3 ways, 1. Wasn’t made in confidence or was not intended to remain confidential 2.
Content of convo wasn’t confidential 3. Convo goes beyond scope and intended
purpose of the privelege …at common law an ease dropping can testify to
confidential info, but now ct evaluated waiver, based on reasonable expectation of
the communicator, competent witness who have relative info, are prevent from
testify based on priveges (CHIP RAT) - a confidential communication is privileged if
made t a clerky person for the purpse of seeking religious consul, spiriatiual
assistance, or asbolution…if the convo was secular then the privelege cdoesnt apply.
Husband wife privilege, the SPOUSAL PRIVELEGE IN civil or criminal trial, prevent
spouse from disclosing written or oral communcations were no 3rd person was
present, this is designed to protect the martial intimacy that existed at the time the
convo occured..doesnt apply to statement or threats made during the course of
physical abuse, because the speaker is not relying on any confidential relationship,
to preserve the secrecy of his acts or words (statements made inn confidence….ima
kill you like. I did Frank) most juris provide that both spouses hold and can assert the
privilege and can not be waived with consent of both spouses…judge has discretion
ot perseve privelege if holder not here…if noncommuncating cdude betrays a marital
confidence by disclosing it to a 3rd party, most cts hold that the privelege is not
destroyed, recognizing that te betraying spouse would not be permitted to reveal
confidence in ct, agaisnt the will of the communicating suppose
most states also recognize the adverse testimonial privilege, in criminal case, most
states also recognize adverse testimonial, which allows a spouse to invoke privelege
when subpeoned by prosector to testify against the other spouse, concerning
nonconfidential communcations and events, this privelege is designed to protect
martial harmony at the time the prosector demands the testimony, it is held only by
the testifying spouse who can freely waive it, over the objections of the cirminal D
spouse …the ATP protects convo and communication made prior to or during the
marriage, while the SCP only protects confidential communcations made during he
marriage (non confidential communcation or non confidential event, then thats when
adverse testimonial privelege would apply) to invoke the adverse testimonial
privelege, the parties must be legally married at the time the testimony is demanded,
to invoke SPC the parties must have been married at the time of the communication,
if there is a divorce, one spouse dies or a spouse agrees to testify then there is no
ATP, cause no longer any marital harmony to perserve…SCP survives dead or
divorce!!!I- privelege against self-incrimination

M - medical doctor patient privelege, which is any info acquired in attending the
patient, including data acquired by examtination and testing, 40 states have adopted
the doctor patient privelege but it is not recognized by Fed ct, the privelege belongs
to the patient, but it can be rasied by the doctor on the patients behalf, most states
apply the privilege to licenses doctors, there agents,, nurses, dentist, and
pedoitricts…the privilege doesnt apply if the patient knew the doctor license had
been suspended, 2, phsyical objects discovered in or around the body !!! 3.
Statement not necessary for medical treatment…patients who affirmatively place
there medical condition into action by commencing a personal injury action or
asserting mental incompetence as a defense, any parent seeking child custody
automatically puts her mental and physical condition into issue 5. If a patient has
demostrated to the doctor a specific and serious threat to readily assertable
victims….disclosures required by statute, mandatory reporting of child abuse

Federal common and any states recognize pyschotriast privilege made to

physocolgic, pycharist social worker made during course of psych therapy
(exceptions to doc priv also apply to this) verified social worker privelege

R- rape consul crisi conulor

A- attorney client priv, this protect only confidential communication made to an

attorney for purpose of obtaining legal service, where communication isnt intended
to be disclosed to a 3rd party. Attorney didnt have to be formal retained for the
privelege to be attached, it extends tp person assisiting the lawyer in represeation,
paralegals, interpreters and accountants…R- where 2 of more people consulting an
attorney for mutual benefit, such conspirator or POPE vicarious liable parties…
privelege may be invoked against a 3rd party, but not any subsequent litigation
between the 2 parties and or there joint estate (no privilege in a fifght between the 2
parties) this privilege doesnt apply to attonries fee arrangement, who paid and how
much 2. Crime fraud exemption which compels and attorney to testify about the
clients confidential disclosures if that client sought the attornies consul to
effectuate an ongoing or fiuture crime of fraud..3. observation easily made by the
attorney concerning the clients appearance, since physical condition is not a
communication …privelege survives the clients death…

P- press privelege, the US sup ct has held that journalist don’t have a 1st amendment
privelege, protecting them from having disclosed confidential info or its source, 49
states have adopted press shield laws, giving reporters and journalist a privilege
from contempt of ct for failing to disclose info and its source, in the course of news
gather….in many states there is also a qualified privilege from contempt for not
disclosing unpublished information or its source that were not obtained in
confidence…to waive the privilege the party seeking the info (usually govt) must
show that material is highly relevant, criitcl and necessary for the parties claim and
defense and is not obtainable from any other alternative source

TRIAL OBJECTIONS— when an appeal arrives in an appealate ct, law clerks sort out
the trial judges errors into 4 categories 00 harmless errors, substianital errors, plain
errors, or structual errors - harmless error rule, whenever harmless error analysis is
invoked by appellate ct, the ct finds that the trial error did not effect the trial
outcome, a judges mistake in admited or excluding evidence, cannot be successfully
appealed unless the error adversely affected a substanital right of a party, the
appealate ct simply asks whether it can say with fair assurance that the outcome of
the trial, was not substantial swayed by the error or it is probable that the error
swayed the jury and that a different verdict would have been reach if the error had
not been made, in which case the ct would not invoke harmlesss error…a party is
entitled to a fair trial, but not a perfect one, there is no such thing as an error free
trial, most evidence rulings by a trial judge are resolved at the appealte levelby
applying the harmless error rule, its the most frequently invoked doctrine in criminal
appeals…harmless error was designed to elimate reversal ______ based on technical
errors…IF a constitutional trial error is alleged, for example a coerced confession
was admitted, a confrontation clause error or miranda violation, then in order to
prove harmless error, the burden of production and persuasion shifts to the govt to
prove beyond a reasonable count that there is no reasonable possibly that the error
contributed to the D guilty, and the other evidence of the D guilt was overwhelming
Scutural erros - a very small class of constitutuon errors are so fundamentally unfair
and prejudicial that they undermine the structure and reliability of the criminal trial
and are never deemed harmless, but this error must have been timely preserved for
appellate reviewew, if so such errors result in automatic reversal of the D
convictions. Bias of an impartial trial or appealate judge who should have recused
herself, even if the appealate can not point to any erroneous of bias rulings by a
judge, (the appealate judge was the prosecutor who approved a request to seek the
detath penalty of the D)…..RACIAL discrimination in the selection of a grand jury, 3 a
ct error on a criminal D right to proceed pro se, without. Lawyer 4. Trial judges denial
of the tright to consul of ones choosing 5. DEFECTIVe reasonable doubt jury
instruction 6. IMPROPERLY closing the ct to the public, but no automatic new trial if
D consul failed to preserve that error…preservation RULE - this requires that a timely
and spefic objection at a civil or criminal trial, must be made to the trial judge, this
ensure that the error can be immediately cured by the judge, the overall effect of the
persecution rule is to limit appealate review exclusively to those grouds raised by an
objection at the trial , an objection on one groudn doesnt preserve an objection on
another ground. Thus an upraised objection at the trial can not be argued on appeal
(objecting to evidence as irrevalnt or inadmissible doesnt raise or preserve an issue
of MCUP or an hearsay objection for the appellant ct to consider…if evidence is
imporly admited or exclusive, then appealate ct will uphold trial judge decison if any
valid basis for admitting or excluding it (where the judge admitted hearsay evidence
on the improper ground that it was declaration against interest, when it should have
been admited as an admission of a party opponent, then the judges ruling admitting
the evidence would be upheld !!!!!!!!

Under plain error rule, if the ct finds an error that was not objected to at the trial (not
preserved), but the error was clear obvious and highly prejudicial, rendering the trial
fundamentally unfair, then the appealte ct has discretion to order a new trial, if it
believes that absent that error, there was a significant probability that the verdict
would be different….an obvious sentencing guideline error, calculating the proposed
sentence for the ct by the US probation office, fit within the plain error rule…where
the law was unsettled when the error was made, but when the appeal was heard the
law had become settled and obvious then plain error can be used by appealate ct

Offers of proof - at trial defendant attorney Y asked W a witness, about what P said
to W 2 years earlier, P attorney B said hearayyyy objection!!! And the ct erroneous
sustain B objection even tho W statement wasn’t hearsay (offered by party opponent)
P attorney then moved on to another area with W, here entire Y has waived the right
to appeal the judges error…if a ct improperly excluded admissible evidence, then
judges error is waived, 1. Under persecution rule the specific grounds for its
admissibility is timely made to the judge 2. The substance, relevance and purpose is
reveal to the ct by an offer of prove outside the presence of the jury..this offer doesnt
have to immediate, but timely if done after lunch, after recess, or after the jury is
excused for the day…if it is a document, it should be marked as an exhibit for
purposes of an appeal, if it was a witness testimony then a narrative of what W said
is alllllloowwwed, maybe Ct favor putting the Witness on the stand outside jury
presence, and making a record for an appeal…FRE may direct that an offer of proof
be made in question and answer form…an offer of prove demostrtaes to a trial judge
the relevancy and admissibility of the evidence, and the harmfulnesss of the cts
ruling…Usuaully cts advise juries as to what is not evidence, 1 questions to a
witness, 2, objections to a question made by an attorney 2. Whatever lawyers say in
opening or closing arguments

A a trial a judge can A- question a witness to clarify an issue, but she can not do so
to the extend the judge takes on the appearance as an advocate for one side, B. Call
expert witnesses, object to the introduction of evidence even tho attorney raised no
objection

Impeachment of witnesses ! Generally the P call witnesses first, to give direct

testimony, when the witness testimony is completed ten Defenses consul cross
examines tha witness by using leading questions, when cross examination is used by
defense consul, P can redirect cross examination, but is limied to those new areas
offered by the D examination,..omnce P rest case, then the D usually makes a
Judgement as a matter of law at any time before the case is given to the jury, this
motion is a condition precedent for making the same motion after the jury verdict,
when the judge denies the D motion then the defense calls D witness for direct
testimony, and the plantiff cross examines those witnesses…impeachment of
witnesses, RULE - impeachment seeks to discredit a witness, it is done by the
opposing attorney cross examining that witness, or by subsequently introducing
contradicting testimony or documentarian evidence showing W testimony is not
accurate

Cross is most frequently perfoemed by assking leading question, in which the

witness sis asked to agree or disagree with the atones statement, by simplying
answering yes or no, it literally puts words into the witnesses mouth…generally
leading question are allowed only on cross examination, but in act discretion they
are permitted on direct examination of a HARRY WITNESS! Hostile unwilling or bias
witnessssss!!!! (The mother of a party, or a witness who suddenly changes his story,
A. When calling an adverse party, whenever a party is called to testify by the
opposing party, then any subsequent cross examination of that party, by that parties
own attorney poses the same danger of leading qeustion on direct examination, thus
any cross examination or an attornies own client must proceed with non leading
questions…I - witness identified with an adverse party (parties partner, or officer of a
corp party, a witness who recollection is exhausted and needs recollection…Y 0 the
witness is very young or old with communication problems…leading quesion are also
admited on direct to bring a witness PEDIGREE (you a teacher, officer, etc) it is also
admissible to establish undisputed factual issues , generally the cope of cross
examination is limited to 1. Matter of W credibility 2, matters on which W testified on
direct examination including A. Matters on partial disclosed by the witness, 2. Any
implications of inferences arising from W direct testimony, thius cross is not
confined to the exact detailed brought out on direct examination…P was bitten by a
vicious dog with a white paw, at trial P was asked only one question by his attorney
“what breed of dog bite you” “A pitfall with a white left front paw”. P was not cross
examined by D attorney and P was excused…D was called by P attorney “does your
pitfall have a white paw” D said yeahhh nigga,, or cross examination D attorney
could ask D the temperament of D dog, because that question explodes the inference
raised by P direct testimony…D attorney because she is cross examine her own
client could not use leading questions, for example “Is you dog gentle”

RELIGIOUS BELIEFS OF A WITNESS- a witness religious beliefs or the lack thereof,

can not be used to impeach or rehabilitate that witness but may be admissible and
relevant to show bias…Where that witness church is a party to the litigation..an army
convo of trucks force P car off the Road,can P witness W be cross examined that her
religion disapproves of the military, YES TO SHOW W POSSIBLE BIAS!!!!!!!

CREDIBILIT PF A WITNESS CAN BE IMPEACHED BY USING A CRIBPICK

Impeachment by contradiction, R- after a witness testifies this time of impeachment

involves subsequently introducing real or testimonial evidence, such a document
aphoto or another witness version of the event to contradict the earlier witnesses
testimony..in P neg action, where P car crashed into P car, P called the D who
testified that D served over the yellow line to avoid hitting a child who run infront of
him, after D was excused P called W a police officer, and W trstified when he
responded to the accident scene, he found an open bottle of liquor on D front seat,
this is impeachment of D version by contradiction…contadictory evidence can not be
used ot impeach a witness on collateral issues, such as W credibility…W testified
that while he was sitting alone in his car, he saw D go thru a red light, D lawyer has
evidence that W was in the car with a women, W can be cross ecamined on this
collateral issue, but D lawyer would be bound by W answer. And could not introduce
any other contradictory testimony that W was with a women becaus e this collateral
fact is irrelevant, on the issue of D neg

D called W who testified that W saw P drive thru a red light, P attorney L asked W on
cross examination, were you fired last month because your employment resume said
you graduated with honors, but you failed out your first year. W said NO, later L
called R, W former employer who testified over objection, that W was fired because
of his fraudulent resume. R testimony was improper admitted, beause questioning a
witness on prior uncharged, VIC acts, is a collateral matter.Thus L is bond by answer
and R shouldn’t of been allowed to testify

R- impeachment by W bad reputation for untruthfulness - generally evidence of a

person character, a person pronsensity ot act, is not admissible !!! For the purpose of
circumstantial proven conduct consistent with that character trait, habit tesitomy is
the exception! This rule attempts to prevent a jury from finding a criminal D guilty or
a civil defendant Neg., because the D character showed him to have previously been
a violent, dishonest or neg person….AN exception to this rule prohibiting character
evidence to show propensity y is to allow evidence of a witness REPUTATION
WITHIN THE COMMUNITY for being untruthful for the purpose of impeaching that
witness after she has testified, Witness 1 reputation for untrhrufulnes may be
introduce by witness 2 testifying about witness 1 CURRENT bad reputation for
truthfulness within the communtiy which is circumstantial offered for the purpose of
inferring that witness 1 is not worthy of belief….Reputation witness 2, must lay
foundation that witness 2 knows of witness 1 untruthful rep, that is she recently
discused it with other memebers of the community or recently heard others
discussing it, and this testimony is not deemed hearsay under FRE!!! Witness 2
doesnt have to personally know 1…witness 1 community includes peroeple where 1
lives, works, or socializes…once this foundation is played and witness 2 testifies
about 1 reputation for truthfulness, witness 2 can then be asked whether she
believes 1 under oath…2 may also give her opinion on witness 1 truthfulness,
provided a foundation was laid that witness 2 knows 1…do you consider 1 to be a
truthful person, answer NOOOOOOO,…what is your opinion of witness 1…on direct
testimony witness 2 can not tesify about specific instant of witness 1 untruthful or
dishonest acts, however on cross examination on witness 2, she may be asked about
whether she is area of specific instances of witness 1 prior honest or truthful
conduct, inconsistent with untrugfulness…Can the auttorney who called witness 1,
who is impeached by reputation witness 2, now call wines 3 to impeach the
reputation of witness 2, UNDER FRE ! This issue is left entirely to the judges
discretion !!!!! To determine whether it would case undue delay or confusion…M
CUP…reputation evidence is also admissible for the following purposes, 1 . After W 1
character for truthfulness has been affirmatively attacked by VCR….PRIOR
uncharged VIC acts, prior criminal convictions, or witness current bad reputation for
truthfulness in the community, then witness 1 reputation for truthfulness can then be
rehabilitated by the testimony of witness 3 as to witness 1 current reputation for
truthfulness in the communit..but specific instance of truthful conduct involving
witness 1, remaini in admsisble on direct examine of the good reputation
witness…….

Unblessihed record before offering good character testimonmy (or cqn ) in a grand
larceny case the D character witness may be asked, have you heard that the D stole
from his employer, are you aware he filed a false and altered transcript…such an
arrest usually has an impact on the community view of D chonesty (did you know he
was arrested for eblezzlement) if he wasnt aware of the arrest, its relativant on
whether the witness really knew of the D reputation, if he was aware of the arrest,
then it adversely reflect on W view of what an honest person is…

Rule - the prosecution ca then offer evidence of the D bad reputation, for the
pertinent charctater trait involved in the crime, provide the criminal D first puts it in
issues…in a rape case, of the D direct case, could he offer the testimony of a local
preist, that D belonged to the parish rape guidance council, or that D went to church
every day…NO….only reputation, but not specific instance of the D good character
are admissible by a character witness

Impeachment by prior VIC (vicious immoral) acts - any witness wh takes the stand,
including a testifying party can be impeached by her prior uncharged VIC
misconduct, that bears upon untruthfulness. VIC uncharged bad acts cross
examination focus on the witnesses prior deciet to show W prior willingness to place
his own personal interest above those of society (has to be relevant to dishonest)
filed fraudulent tax return, forged signature, cheated on an exam, bribed someone,
embezzled, committed fraud, or committed perjury. VIC art impeachment evidence is
admissible even tho the witness was never charged or convicted of the act. The
prosecutor has the burden of proving by prepoderance of the eviddence, that the
uncharged vic act occured (Ex- on cross examination, W was asked In good faith,
whether she 1. Cheated gonna law school exam, 2. Sold crack 3. Committed
domestic violence against spouse 4. Lied on her moorage application….Rule- only 1
and 4, can be properly asked, because they focus on a witness prior deciet. Rule - if
W lies, and denies everything, then the attorney cross examining W can not
introduce any evidence contradicting W answer, and is bound by W answer, since
impeaching a Witness by VIC is collateral to any relevant issue in the trial. A matter
is collateral if it does not directly relate to an issue in the case, and would not
otherwise be idependtly admissible and relevant in the case (vol 2, E 86-87), the
cross exam is bound by the witnesses untruth answer to VIC and may not contradict
those answers by offering contradictory evidecnce or by calling other witnesses to
contradict the witness answer…in both civil nd criminal case a testifying party or
witness may invoke the 5th amendment right agaisnt self incrimination when cross
examined on prior VIC acts or uncharged crimes, that are unrelated to the pending
litigation. R- for the purpose of impeaching a witness credibility, can the witness be
asked, if he has been arrest or indicted for bounced checks, NO. the fact of an arrest
or grand jury indictment is a mere accusation, opposing consul should immediately
object to the form of the question. W can be cross examined on the underlying VIC
acts of bouncing checks, but not as to the arrest or to the indictment……

B- bias is any relationship between a witness and a party, that might cause the
witness to lie. Evidence of W bias revealed to the jury, a witness motive to falsify
testinmony out of love, fear, greed, sympathy or hate. A cross examiner wants to
show the jury that W testimony may be affect by this bias…..W a prosecution witness
testified that W has purchased Drugs from the D, on cross of W, can she be asked by
D attorney whether W has been recently indicted and whether the criminal charges
are pending (YES not for VIC impeachment purposes, but to show to the jury W
possible bias to testify favorably for the prosecution in exchange for a better plea or
reduced sentence. Bias is not deemed a collateral matter, thus if bias is implied , the
prosector can call another witness to establish the boas

Witness Prior inconsistent statement - this impeaches a witness on the basis that
she earlier gave a different written or oral version that is inconsist with her trial
testimony. a PSI infers that the wintess can not adequately recall the event (PER) or
that W is lyinggg. Rule - a direct inconsistency is not required, thus W omission of
information in her prior statement that was added when she testified is deemed
inconsistent for impeachment purposes. Ex- W failure to recollect at trial, after
making an earlier detailed out of ct identification statement picking the D out of a
line or photo array is a PISm since the ct room statement of W not remembering is
inconstitent with W earlier detailed statement (MEE book essay 9, page 20). IS can
be a prior informal oral conversation or the witnesses prior judical testimony..the out
of ct PIS is not considered hearsay, cause the out of ct is on the stand subject to
impeached and because a PIS Is not being offered to prove the truth of its content,
but simply to show it was made to impeach the witness. A pIS is admissble as the
omission of a party opponent , this it is admissible both to impeach and fo the truth
of its content. R- a witness PIS is admissble for the truth of its content, if it was
made at a formal hearing or deposition and given under oath, subject to penalty of
perjury (one of the 4 priors). Anytime a witness is impeached from a PIS from another
trial or EBT testimony, then that statement is admissible for the truth of its content
as well as to impeach the witness. A Mere letter or a siged affidavit containing a PIS
is admissble only for impeachment purposes. W must be afforded an opportunity to
deny, correct or explain the PIS either before or after the PIS is introduced into
evidence, Thus W can finish testifying without being confronted with a PIS as long as
W is subject to being recalled to the stand tio allow her the opportunity to explain or
deny the PIS. R- in criminal cases defense consul is entitled to examine prior written
or tape recorded statements of prosecution witnesses in the possession of the
police or the prosecutor for possible use on cross examination…Rule - to Shield
prosecution witnesses from intimidation or harm, the govt doesnt have to reveal W
prior statements until after W direct testimony for the govtment at the trial…

Late delivery or non delivery of JANKS material, may be harmless error. It would
amount to a due process violation only if the ct finds it probable that the jury would
have reached a different verdict if it heard the impeachment material

Impeachment by prior convictions - Where a wintess is cross examined by a prior

conviction, a witness can admit his prior conviction but if W denies it the conviction
can be proven by offering a certified record of conviction, which is self-autheticating
and ferried public record, it satisfies the original document rule. A prior conviction is
not deemed a collateral matter, W prior conviction may be initial disclosed on W
direct examination to neutralized its damaging effect and t prevent a jury from
thinking W was trying to hide that fact from the jury…W pending appeal of a criminal
conviction does not render it inadmissible for impeachment, but evidence of the
appeal is admissible to mitigate the effect of the conviction…Prior convictions that
have been pardon because of innocence can NEVER be offered but pardon based on
a witness rehabilitation are inadmissible unless the pardon person subsequently
convicted of ANOTHER felony

A juvenille deliquency adjudication is not admissble in 1. A civil case, or 2. A criminal

case to impeach a criminal D, but it is admissble to impeach a testifying Witness
provided the underlying JD offense would be admissble to attack a witness
credibibitly if committed by AN ADULT. Prior convictions generally are not
admissible if more than 10 years have passed since the conviction or from the
witness release from prison, which ever is LATER. And probation or parole is not
considered. The ct has discretion to admit a convction that is more than 10 years
old, but it is presumed inadmissible unless by using a reverse SOUP formula…(the
proponent must show its probative value substantially outweighs is unfair prejiducial
effect) the opposing party must be given sufficent prior written notice of the intent to
offer the old conviction

There are 3 categories of convitions, 1 Felony or misdemor convictions involving

individual dishonesty, fraud or false ststaments, which are automatically admissble
against a witness or testifying party. A Ct has no MCUP discretion, for exmaple
covnctions fror lying deceiving, falsifying, embezzling, criminal fraud (submitting a
false insurance claim) tax fraud, larceny by false pretenses, bribery or perjury. They
do not include conscitions for assualt, battery, common law larceny or robbery, thus
D convictions are automatically admissible for impeachment purposes…misdemor
convictions are not demisable for impeachment purposes unless it involved false
statement or deceit…the felony convictions that do not involve deciet or false
statement, then for all witnesses who take the stand, except for a testifying criminal
D, requires the ct to apply the MCUP and PRO SUOUP mnnemoic balancing
standards, which failure the convictions admissibility for impeachment unless its
probative impeachemnt value is substantial (SOUP) outweighed by its prejudicial
effect on the jury. Unfair prejudice is evidence that has a tendency to cause a jury to
reach a verdict on an improper basis, usually an emotional one….PRIOR felonies to
impeach a testifying criminal Defendant are not favored and are subject to a reverse
pro SOUP balancing test, they are presumed inadmissible unless the prosecuion can
prove that the crim D prior felony convictions probative value substantially
outwieghs any unfair prejudicial effect. This language favors exlcuiding and not
admitting the testify criminal D prior felony convictions, thus if its probative values
and prejudicial effect are even balanced, the felony conviction should not be
admitted against a testify criminal D. EX- D was charged with bank robbery, D
wanted to testify, but D had a 5 year felony conviction for bank robbery (since the
felony did not involve deciet or false statement (#1 above), and since it is being
offered by a tesify criminal D, then the felony is admissible for impeachment only if
its probative value substantiallyy outweighs its unfair prejudicial effect, thus most
cts will not admit the felony for impeachment purpose…in a civil or criminal battery
action, P attorney wanted cross examine D, on whether 8 years ago, D had been
convicted of a misdemeanor for violati the weights and measurement law in D meat
store, D had rigged the scale in his store so that they added 2 ounces to every piece
of meat that was weighed,…thus the ct have discreiton to prevent P use of his
conviction for its unfair prejudical effect. NO it is per se admissible because it
involved the D deciet, falsingying and defrauding, #1 above

One the criminal ct reviews its criminal order, on what prior convction can be used
against the criminal D, then that D determines whether to take the stand because he
know now whats convictions and prior VIC acts, the prosector will be allowed to use
against him, to impeach him. The cts order can not be appealed after the D guilty
verdict, unless the D actually testified and the prosecutor introduced prior
convictions and prior vic acts to impeach D testimony. However if the D does not
tesify, he loses statdning to appeal the ct order, likewise, if he doest testify but
chooses to first disclose the prior convvictions to thr jury on D direct case, then he
waives the objection to the ct order by introducing the convictions himself…if the ct
determines a prior conviction is admissible for impeachment, the ct has discretion
as to how much detsail is admisblle to avoid unfair prejudice. Cts frequently limit the
prosecutor to only the fact that D was previously convicted of a named felony, its
date, and the sentence imposed, but prevents the posectur from inquiring about the
details underlying the conviction…A prosecutor was limited to asking the D if he had
been convicged of 3 felonies since 2014…(PERJURY more than 10 years old,
discretion)
Rehabilitating an impeached witness. A witnesses credibility can not be attacked
before she testifies and her credibility can not be bolstered (given more weigh)
before it had been attacked…After W had been cross examined, then the attorney
who called the impeached witness can attempt to salvage that witness credibility by
rehabilitating the impeached witness in 1. Introducing W prior consistent statement.
As a general rule a witness testimony may not corroborated or bolstered by
introducing evidence of W PCS (prior consistent statements) that were made before
trial, the rational is that a lie is not made more truth worthy by its earlier
repitition..Prior to 2014 an FRE prior consistent statement was admissble only to
rebut an express or implied insinuating arising from cross examination that W
testimony was recently fabricated because of some improper motive or influence.
(Bribe, threat, or some other bias, as of 121 2014, a PCS is also admissible to
rehabilitate W credibility whenever it has been attacked on any CRIB PICM ground
(example, that W could not of perceived the event , she was confused , or she was
not telling the truth Today a PCS can be used when W was impeached, where th prior
inconsistent statement or VCR, V prior vic act, prior conviction, or impeachment by
bad reputation. R- introducing an impeachment testify witnesses prior out of ct, prior
consistent statement for its truth is not hearsay because it is one of the 4 priors. Its
admissble to show W told the same story before there arose any motive or influence
to lie (Ex- W saw the defendany go thru a red light and strike the plantiff, on cross
examination of W, D s attorny prought ouut th e fact that after the accident, W
repeatedly visited the P In the hospital and they became engaged to get married,
(subjecting that W is a bias witness, and that her version of the facts may be
fabricate..to rehabilitate W, P may call X to tesify that the day after the accident,
before W had any motive to fabricate W told X that D had gone thru a redlight and hit
P. P an 8th year old first grader, fell from the school monkey bars, P sued the school
for neg supervision, 2 teachers watching the children tesified that P was not on the
monkey bars. In opening comments to the jury the school attorney said that P may of
been coached by her parents, to testify that she was injuried on the monkey bars.
Here the plantiff prior consistent statement mad to the emergency rule doctor was
admissible for 2 reasons, 1. as a prior consistent statement made before any motive
to fabricate . 2 .out of ct statement germane to medical treatment.

Reputation evidence of the testifying witnesses truthful character. Reputatio

evidence of a W good character trait for truthfulness witin the community generally
is not admsibble to bolster witness testimony…a community reputation of a
witnesses truthful character is admissible only after that witness character for
truthfulness has been attacked by a VCR. That is his prior VIC acts, prior
convictions, or his bad reputation for truthfulness in the community, but not to rebut
impeachment that simply contradicts a witnesses account, such as PURR bias or a
prior inconsistent statement which impeach a witnesses testimony but not her
truthful character.

Rule - upon request, the ct shall order the exclusion of all witnesses from the ct
room so that a witness could not hear another witnesses testimony and attempt to
correlate another witness testimony. This rule doesnt apply to a party or to an expert
witness who can remain in the ct room. If the party is a corp or govt entity its
attorney may designate a party employee to remain in the ct room.

the agency relationship arises when a principal agrees to permit an agent to bind the
princicapal to contracts negotiated and executed by the agent. An agent is
distinquishable from a mere employee who lacks authority to bind employeer to
contract, an employee merely serves rhe employer , but agents acts for and binds
agent to contracts. In limited liabilty companies, unless there articles or
organizations expressly vest management in a manager, then the LLC is member
managed and every LLC member becomes an agent of the LLC and can execute
contracts binding the LLC. Because an agent is a fiduciary, she is bound by all times
to exercise the utmost GOOD FAITH and LOYALTY toward the principal Under most
states long arm statures, given ruse to specific juris, an agent tortious conduct 2.
Transactions of business, 3 actives involving real property all within state X, give
rise to long arm specific juris over the agents principal domiciled outside state X…
under the doctrine of Respondiat superior, if an agents tortious conduct is closely
connected with what the agent is employed to do “in furtherance of” and within
scope of the principals business, then the agents tortious conduct imposes vicarious
liability on the POPE prinicpal (CIV pro page 5, mN 2) an agent or employees actions
falling within the scope of employment where the purpose of performing the act was
in part to further the employers interest, then the agent or employee is acting in
furtherance of the employers business. While the employee or agentt is on a lunch
break and tortuously injuries someone, there is no vicarious liability to the employer.
However if he was picking up sandwiches for other employees to bring back to lunch
then it was within scope of employment, since he was serving in part the interest of
the employer…An employees commute to and from work is ordinary not within the
scope of employment, not during business hours and the employee is not subject to
the employers control …EXCEPTION - employee was engaged in special error or
mission for the employers benefit (can you stop at Home Depot on your way from
work) 2. Employee uses her personal vehicle for work related tasks or 3. Emplyee is
on call, such as doctor or news reporter, who is called 24/7 to respond the
emergencies…likewise an agent or employee like a trucker, who diverts from a
business delivery trip for a few blocks to buy Starbucks cofee, is still considered
within the scope of employment and the employeer is vicarious liable. Just because
an agent or employee disobeys the employers isntructions (not to speed or to drive
carefully) this does not take the agents activity outside the scope of employment …

Rule if the corp princiaal gives the corp agent expressed or apparent authority to
raise capital for the corporation and or to borrow money on the corp behalf, then if
the agent commits fraud by raising capital or borrowing money and then using the
proceeds personally for herself, the corp is liable to the 3rd party…if an injuried 3d
party can prove an employeer failed to exercise reasonable care in hiring retaining or
in controling the agent , which failure created a foreseeable unreasonable risk of
harm to others, then the employer is liable for the neg hiring or retaining of the unfit
employee, this liability is seperate and apart from respondent superivicarious
liability INTENTIONAL TORT LIABILTY - if the employye or agent intentiona tort
were in part motivated to furher or to serve the interst of the pricipal the the
employer is vicarious liable for those forseeable intentional torts

CREATIOn of the agency, the agency relationship is a contract, thus it may be

created expressly orally or in written, impliedly or by estop…a principal is bound by
any notice given to the agent, and all facts known to the agent , on matters within
the scope of the agency, even tho that info was never conveyed to the principal. it it
is the duty of the agent to do so, and the law presume the agent discharged this
duty. a priiincipal is not liable for an agent contract, unless the AGENT HAD ACTUAL
or APPARENT authority to enter the contract. An agent has 2 types of actual
authority, 1. Express author , and 2 implied authority, express authority is ocnvfered
orally or in written to the princepal or agent. A frequent method of granting an agent
express authority is thru a power of attorney signed by the principal. Its a document
that setss forth an agents authority to act for the principal. Half the states have
adopted the UNIFORM POWER OF ATTORNEY AACT 2006, which the uniform probate
ct adopted by amendment in 2010, that powers of attorneies are impliedly durable,
thus the mental incompetcny of the principle does not revoke the POA..in the other
states, in order for the POA to be durable it must expressly state that this power of
attorney shall not be effected by the disability of the principal. Under the UPOA act
if a power of attorney grants the agent the authority to do all acts a principal can do,
then it gives the agent the autbhority in the following transactions 1. Realty 2.
tagible personal property, 3. Stock or bond transcations 4. Bank accounts 5
operating a business 6, insurance polices 7. Trust and estate matters 8. Claims and
litigations 9. Retirement plans 10. Taxes…the UPOAA act list 9 other powers the
agent can undertake but only if they are expressly granted in the POA…1. Create or
terminate or amend an iinter vios trust 2. Make a gift up to 15000 dollars unless a
greater annual amount per donee is expressly set forth & if the agent is not a close
relative, the POA must expressly give the agent power to make gifts to the agent
herself 3. Create or change a beneficiary designation in any document 5. Delegate
the agency to a new agent 5. Waive the beneficiary right under a retirement plan????
6. Exercise a fiduciary powers that the principal possess and the principal has the
authority to exercise. 7. Exercise authority over the content of electronically stored
communcations 8. disclaim property by renouncing a testimentary gift

Implied authority - this is power inferred from the expressed authority given, it
includes the inherent icidentiall customary and necessary authority that ordinary
would be given o carry out the agents expressed authority. Thus where an agent is
given expressly authority to manage the principal busines, she has implied authority
to hire employees or lawyers, rent space, or purchase or sell merchandise in the
ordinary corse of business and even to borrow money in the principals name. R-
express limitation imposed by P on the agents implied authoruty are not binding on
3rd persons dealing with the agent, unless the 3rd party had actual knowledge of the
limitation….an attorney has an implied in law authority to settle a client claim at a ct
conference, however express authority given by a client to negiotate an out of ct
settlement does not constitute implied authority for the attorney to enter a binding
settlement without the clients express authority. Apparent authority (obsentible
authority arises where the principal own words or conduct commincated to a 3rd
person causing her to reasonable believe that the principal consents to having acts
done on the principal behalf by the person purporting to act for the prinicpal..AN
AGENTS OWN WORDS CAN NOT ENDOW THE AGENT WITH APPARENT AUTHORITY,
IT MUST BE THE PRINCIPAL WHO CREATED THE APPEARANCE OF THE AGENTS
AUTHORITY. P A guest at R resort was injuried ona. Defective ski mobile rented from
S, an off sight ski mobile company, P sought to hold R liable, but nothing R said or
did it in promotion material or in its conversations indicated that S was R agent
(when P patient seeks medical care from a hospital emergency room and the
hospital has contracted with a medical group - independent contractor to run its
emergency room, then the hospital is liable for the Docrs malpractice UNDER THE
APPARENT AUTHORITY DOCTRINE. Frequently when an employer hires an
independent contractor, and creates rhe appearance that the independent
contractor is acting as the employers aurhtozied agent or employee, this gives rise
to an agency by apparent authority, for example - a value service at a restaurant to
park customers cares…where a principals neg or intentionally allows another to hold
itself out as the principals agent, then if a 3rd party realise on that appararance of
authority, the principal would be estopped from denying the agencies existence.
Given rise to an agency by estoppel

Independent contractors - UBE essay 2017 - an IC agree to perform services for an

employer, but unlike employee or agent, an IC is not controlled or supervised by the
employer, and is not subject to control in performing the task… an IC supplies it own
tools and equipment, and chpooses means and method of performing the services
and is paid by the job rather than by salary..the employer of an IC, is not liable for the
IC torts, except for 1. Employeer Tok control of the IC performance 2. The work
delegated to the IC endangered BIP (business invitees injuried on a premises open to
the public - a IC neg maintained a stores elevator, escalator or automatic door
opener, then the store owner is vicariously liable…I - the work was inherently
dangerous - demotion of a building using dynamite or a public fireworks display, the
public way was endangered by the work assigned to the IC 3. Employer neg hired or
retain an unfit independent contractor 4. The task involved a non delegable
duty….AN Agent liability, an agent whos relationship is fully disclosed to the other
contracting party is not personally liable for contract entered into on the principal
behalf, except went he agent touts TOUTS. (T- under the participation exception,
seeLLC lecture, an agent who commits a tortious act is always liable to those who
were injured O- agent acted outside scope of her authority, she was not given
express implied or apparent authority to enter the contract, this gives to the 3rd to
whom the agent dealt a claim for implied warranty of authority , the reason the agent
is laible is because the party with whom the agent dealt has no claim against the
principle..U the agent having actual authority acted on behalf of one an undisclosed
principal or 2. An unnamed principal (partially disclosed principal.) where the
principal peefers to remain unknown then the agent with that unknown or
undisclosed principal becomes a party to the contract and becomes ersonally liable
to the contract, when the principal identify becomes known, he can be brought into
the lawsuitt and a judgment obtained both P &A…

the agent served 2 principals without full disclosure and the informed consent of
both..S - self dealing by a faithless agent of a principals business opportunities, an
agent owes a high degree of loyalty to P and can not act adversely to P interest 2.
Compete with p BUSINESS 3. Misapportiote a business opportunityunity that first
shoulda ben offered to the principal 4. Engage is. self dealing by buying from or
selling to the principal without full disclosure 5. Accepting any compensation froma.
3rd person…rule - if the agent breach duty pot loyalty, P CAN SUE THE FAITless
agent to recover all commissions paid to the agent based on a task by task basis or
a time period basis and also for any resulting detriment tot he P, this also applies to
faithless employees.

Agency is terminated by a BID - by an act of the agent or principal unilaterally

terminating the agency contract, for example your fired. I quit, or by mutual
agreement. Since th agency relationship is fidcury, either party has the unilateral
power but may not necessary have the contractual right to terminate the agency
relationship. But the power allows either party at anytime to terminate the
relationship, even if the parties are contractual committed to a longer period, the
relationship terminate when either party terminates it orally in written, or
impliedly. If by terminating the relationship the agency contract is breach, then the
breaching party is laible for breach of K damages.,..RULE - altho an agencies
termiantions revokes an agents actual athotiry to deal with 3rd parties, it doesnt
necessarily revoke the agents apparent authority to deal with 3rd parties and to
continue to contractual bind the prinicapal. This requires actual or constructive
notice of the termination to 3rd parties…B - bankruptcy of the principal but only
upon notice of the bankruptcy to the agent….I imcompetency, rule - under the PC a
non durable power of attorney is not revoked by the principals inconmpetency until
the agen recieves notice thereof, under the uniform durable power of attorney act a
non durable power of attorny is not terminated without knowledge of the principals
incompentcy, by either the agent or the 3rd perosn dealing with the agent….Dead
automatically terminates any agency, including an agent acting under a POA,
without regard to notice of the dead…an agent acting after the agency has been
terminated, after the principals dead, becomes personally liable to the 3rd person
with whom the agent dealt for breach of the , for breach of implied warrant of
authority

PARTNERSHIP - RUPA adapts entitiy theory of paternship law, is an entity distincct

from its memebers, a change in members called a dissociations does not cause a
paternship dissolution. 9 states have not adopted RUPA & still follow the Uniform
partnership act, of 1914…a paternship is an association of 2 or more person to
conduct a business for profit and to share in losses as co owners simply co owning
real property. TC is not sufficent to form a paternship…in a general patersnhip each
patern is jointly and severally laible for parternship torts and paternship breaches of
contract, but under RUPA the creditor must ame the partners as coD and serve
them with process. If the creditor recovers a money judgment agaisnt the
paterns, patersnhip assets much first be used and totally depleted before a patern
personal assets can be used to satisfy that judgment. P can covnert, from a full
liability general paternship to a Limited liability paternship (See corp lecture) by
simply filing a statement of qualification with the secretary of state and adding the
suffix LLP to the parterreship name, the relatiosn between the partners are governed
by the partnership agreement but to the extent the agreement doesnt cover all
issues, then as a fallback RUPA governs (similiar to LLC). When a partnership for a
fixed term, 3 years, does not dissolve at the end of the term, then the rights and
duties remain the same as they were udner the old agreement and it simply becomes
a paternship at will. P owns each other and the the PShip a duty of care, duty of the
highest loyalty, the ordinary morals of the market place are not sufficent. Partners
are fiduciaries for each other. A fiduciary duty of undivided loyalty arises whenever
a relationship requires one person to act for the best interest of another, when
thinking of fiduciaries think of equity and equitable remedies, such as injunction
(PILE civ pro 3) recievers LIARS, constructive trusts, clean hands, unjust enrichment,
laches and accounting actions. Derivative actions are not permitted In partnerships
(UBE essay Feb 2016), the GAP business judgment rule applies to partnerships, thus
absent Fraud or sell dealing, a partners good faith business discussion within the
scope of partnership business is beyond the scope of judical review…R- when there
is no written partnership agreement, then the ct must determine if a partnership
exist, here the ct looks at the intent of the parties and whether they mutually
intended to become parterns, sharing of profits is prima facie evidence of a
paternship, creating a rebutable presumption that a partnership exists. a
presumption does not arise if profits were shared in payment of DRAWS (Debt, Rent
paying annuity to a P surving spouse, Wages, Sale of the goodwill of the business,
(Problem ABC are partners at will, it leased a store front as a month to month tenant,
A secretly negioated with L landlord to by the building, and then title was about to
close A send B&C a letter dissolving the partnership, which A had the power and the
right to do so, because it was a partnership at will and not a parternship for a fixed
term, A purchased the building and opened a similar business…A aquistition of the
builing was a misapportiation of a partenrship oppurtunity that A should of offered to
the partnership, by failing to do so nigga breached his fidicuariayr duty. - implied
promise to act with the highest loyalty to the partnership and A was unjustly
enriched to the determint of the other partners, thus A held title to the property in
constructive trust (TCUP for the benefit of the partnership.

SOF- states are not unifrm in this area, but usually a signed writing is required to
enforce a paternship agreemtn in only 2 situations - 1, when parteners agree to do
something which by its express terms can not be completed within one year,,, a 5
year paternship agreement can b e completed in one…

2, where a partner agrees to transfer to the partnership (contribution to capital, real

property, or a lease exceeding one year, if there is no signed writting then the
contributing partner can deny making the promise to transfer and has a valid defense
(SOF) to a claim that he breached that promise…Problem AB formed a parter called
AB realty for the purpose of buying and selliing real property (co - company and
assocaiates indicates the existence of a paternship) to be enforceable must the
partnership agreemet be in asigned writting ? NO, because the parrtnership
agreemwnt itself doesnt involve the transfer or termination of an interest in real
property, the interest of each parter in the partnership is consideidered personal
property, …does partner B need written authority (power of attorney) to sell
partnership realty, NO. as a general agency rule, agents must have signed written
authortiy from the priniciple to convey the principal real property, however a partner
is both a principal and agent of the partnership, ths partnership real rop conveyed to
a BFP without express partenership authority can not be set aside (resinded) if it
was conveyed in the regular course of the partnership business (AB realty)
….paternship XYZ deal in selling used cars, X unknown to Y&Z sold to B the
partnership real property on which the car lot was located, YZ can rescind that
SHIEEET…buyer B was on CIA inquiry notice to check with other parters or demand a
copy of the partnership agreemnt tot see if X had been given the express authority to
sell paternship real estate…RULE - Ruppa allows the partnship to file a statement of
paternship authority with the secreatry of state, name the partners in the partnship,
naminh there authority or lack of authority, if it limits a partners right to effect
partnership realty then it must also be filed locally in the realty chain of ttitle, in the
county clerk office, which would give 3rd parties CIA constructiive notice of the
partners lack of authority and the 3rd party would not be a BFP

Property rights of a partner, absent contrary language in the partnership agreement

every partner has 3 property rights, PMS. Right to use partnership proprty, but only
for partnership purposes, all property acquired by the partnership is propeprty of the
partnership and not of the partners indivdually, a partner has nno right to posses use
or convey away partnership property other than for partnership business. A partner
can not pass title in a SWEPT will, and can not assign, sell it, or make an AID gift of
artnership property…

right to particapate in management, management is an equal per capital right

regardless of each contribution to capital and regardless of a partner percentage of
lossess, a majority vote governs in the management of partnership affairs, where
the partnership agreement is silent a unaminous vote is required to bring in a new
partner or tot undertake new partnership activities that would contradict the articles
of partnership…CAN VETO NEW ACTIVITIES!!!! 1. a partners right to share in profits
and to the return of any capital originally invested in the partnership, R- unless
otherwise agreed in the partnership agreemnt, profits are shared equally per capita
with partners..losses are shared in the same ratio as partners share profits….

3* is the only parnership property right that A. subject to attachment, or to a money

judgment execution by a partners personal creditors, can be assigned away or
pledged by a partner as consideration for a partners personal obligation, 3. passes
thru a dead partner probate or intestate estate

Liabilit of a new partner, - a new P is personally laible for prior partnership debts,
but only to the extent of his 3* partnership interest (only her contribution to
capital), patersnhip creditors who hold claims that arose prior to the entrance of the
new P can not look to the personal assets of the new partner if the partnship
becomes isolvent. a new P is perosnally laible on an exisiting P long term lease. only
for unpaid rent accuring after she become a P…

P are personally liable for all partnship debts and liabilty up to the time of there
disaccotion with the partnership on debts incurred after a P retire or disaccioate,
shes remains liable under operation of law, but ONLY FOR 2 years there after to a P
crreditor who previously enxtended credit to the P and had no actual notice that the
P retired, and reaosnble believed that the retired partner was still a partner when
new credit was extended to the partnership, or 2, never previously extended credit
to the partneship but who knew of and relied on that P assocaition with the
partnership and that creditor had no constructive noticeof that P returement (please
be advised so and so has retired, in Newspaper)…..Under RUPA a reitired partner can
file a statment of disassoction witht the sec of sate given future creditors fuuture
notice, thus future creditors can no loger rely on the P credit
These same rules 1 or 2, above appliy to a principal who remains liable for a
terminated agents contract based on the agents apparent authority, which continues
to exist after the agent was fired, until proper notice is given of the agency
temrination

Under RUPA the =partnership is treated as an entity and no longer is automatically

dissolved if a partner dies, bankrupt, or quits, uder RUPA the partnership can buy out
the disaaociated partners intersts, but the Parternship doesnt dissolve…when a P
dies or dissaciates, but the remaining P contunie the business without a final
accounting, then the dead partenrs estate can seek to recover the value of the dead
partners *share, plus interest, from the date of the dissacition…

anytime it becomes illegal to contuinue the P, then it dissolves by operation of law,

in most states the conviction of a lawyer for a felony results in automatic disbarment
of the attorney. this rule doesnt violate Due process, because the fact necesaey to
revoke the license were determined in a criminal proceeding by proof beyond a
reasonable dount, thus due process does not require any furhter trial type hearing

Dissolution by ct degcreee, only if it is a partnership for a fixed term is a P required

to go to ct to obtain a judical dissolution, if its a partnership at will, then any P has
the right and the power to disolve that Partnership,

ct will dissolve a P prior to its fixed expiration date based on CUB (one parter cant
carry on his share of the Parnership work (drugs or stroke) Unsound mind, a P mental
incomentcy doesnt cause a dissolutiion by operation of law as it does in the ordinary
agency relationship (ABID) partners persistent breach of the P agreement, a partners
cub misconduct doesnt prevent that partners unclean hands from seeking an
equitable remedy of an accounting from the ct to establish his *3 property interst
(her payment of any profits??plus capital of her invest)…doss

dissolaction by a act of a P, right vs power dicodmy…a P always has rhe power to

withdraw from a Partneship before its stated term expires,but if that P lacks the K
right then that P can be SUEEED for damages bitch ! for breaching the partneship
contract, apatersnhip at will can be automatically dissolved at the whim of any P,
unless within 90 days, all parners including the withdrawing P agree to the
contuniation of the Partnership..in a P for fixed term, if one partner wrongfully
withdraws then the other P have the rifght if they unamiously agree to continue the
P business for the balance of the partnership term, either by themselves or jointly
with others, they do not have to liquidate Parnership assets and they can conintue to
possess all P property provided they BUYOUT or secure (by a bond) the breaching P
interest *3, but LESS any damages caused by that P breach…the amount paid to the
breaching P is the amout that would of been distributed to that P as if the entire P
was sold as a going concern or an asset liquidation/sale of all the partership assets
and then distrubiting the Partners pro rata share of that amout without a
marketability of minority interst discount of that noncontrolling Partner, (withdraw
and continue VS withdraw and dissolve??) (liqudate while continuing the breached
Partneship_

Does the assignement of a P interest, cause the assigning P to be dissaocatied with

the P (3 retur of capital you contributed, profits distributed) NO , she is still a
partner, but the assignee of the partnship interst is not entitled to 1. interefe in
maangment, 2 demand an accounting 3, inspect partnship booksuntil the terms have
expired…an assignee by sale gift or dead P estate, is simply enttiled to recieve any
profits paid by the partnership and at the end of the fixed term

and at the end of the fixed term can demand dissollution, iff it was a partnershipa t
will, then the assignee can immediately demand a partnership dissolution and an
accounting to recover to assignors contribtuion to capital, and the assignoirs share
of any partnership profits. RU{A allows a dissoultions, were a P who is critical to the
business dies, bankrupt or dissacoaites from the P, if witihin 90 days if at least half
of the remaining p vote to doissolve the P, then it dissolves…if it choose to continue
to the P, then those partner that choice to dissolve can withdraw without breaching
the agreement, and demand the partners buy back there interst in the P

P accoutning, there can either an informal P accounting where the P agree or a

judicial accounting commenced in ct, where the P can not agree, an account strike
a balance on the P books by valuing P assets, less debts and liabilities..Partnership
debts must be paid in the following order of priority , 1, wages owed to P employees
2, debts owed to creditors, 3. P capital contriubuted to the partnership, which is
deemed a true Parenetship debt that must be repaid by the P, if there is not enough P
money to repay all the capital contributed by partners, then it is considered a
partnership LOSS! That must be shared by each partner!!!! In the same ratio as
profits are shared (A contributed 3000 dollars, B contributed 700 to P capital, there
were to share equally in profits, when it terminated there was undistributed profits,
thus A would get 3k, B 7k and thy would split 50% the remaining profits equally, If
the P was insolvent and all of the capital was impaired then each partner would be
responsible for the loss (5k each!) since A only paid 3k, he owes be 2k, which would
reduce P capital loss from 7k to 5k
Nationally

Tort -

Defamatory statement absolute, even if motived by malice (spite, illwill, hatred)

defamorty statements made in judicial proceedings by judges, lawyers jurors, parties

or witnesses in pledging motion practices, letters, depositions or trial testimony,
however the statement must be relevant to an issue in the litigation…Police officers
have absolute immunity from 42 1983 civil rights claims for perjury at a criminal trial
or in a grand jury even if it caused the defeandment wrongful conviction

To enforce settlements in negations many states extend this privilege to statements

involving anticapted litigation (example , employees attorney sent a letter to the
former employees attorney stating the former employee stolen confidential info
when he quit..spouses are deemed one entity, thus confidential defamatory
communication between spouses about the plantiff ARE PROVELEGE, since the
element of publication to a 3rd perosn is lacking. However a 3rd person defamatory
statement made to one spouse about the other spouse is not privileged. ?????????T-
truth at common law good reputation was presumed thus the D had the burden of
proving the statement was substantially true!! This rule does not apply today to
statement involving matters of public interest, where the plantiff must prove the
statement was false..statements by legs made in legs chambers, and this
protections extends to AIDs assisting a leg, if they leavee. The floor of the leg
chamber and hold a press conference of election speech, there is no privilege. A- gov
administrative agency executives and all other govt executives making defamatory
statement in furtherance of there official duties….G- false statements to bar
associations greivances committees ….

A defamatory statement has a qualify privilege under LIP circumstance, but the
privilege is lost if the P can prove the Defamatory statement was made with either
common law MALICE (Meanness spit ot illiwill, or constitutional malice which
involves a D high degree of awareness of the statements probable falsity…Difference
between the 2, is common law malice focus on the D attitude toward the P, whereas
constitutional malice focus on the D attitude toward the TRUTH. Malice s a question
of law for the ct and nOT FOR JURY TO DECIEDE…This qualified privilege applies to
LIP (L- lower officials in the govt or in admin agencies, I- where the speaker and
listener had a common interst in the subject matter of the statement (memebers of a
board of directors, members of a faculty tenure committee, 3. Employer talking about
a former employee with a possible new employer…P - defamatory statements to the
police or district attorney about alleged criminal activity of P..first amendment
considerations in defamation claims, prior to Sullivan v NY times first amendment
protection did not extend to defamatory statements thus a Defamation D who was
sued for Defamation was liable in tort, unless the false statement of fact was made
with an absolute or qualified LIP privilege, the Sullivan case gave defamatory
statements some 1st amendment protection if the defamed person was a Public
official and the statement related to her official conduct. The first amendment
freedom of speech and freedom of the press protect D who have defamed a public
official unless that public official can prove by clear and convincing evidence not
only that the fact was false (Defamed public official now has that burden) but must
also prove the D either knew the statement was false, or had serious doubts about
its truth but published it anyway with a reckless disregard of its probable falsity
(that is, she easily could have verified the story and woulda found It was false (sup
ct calls this standard actual malice aka constitutional malice) if a newspaper editor
thought the statement was true but published without investigating its accuracy,
then the defamed public official will not prevail cause the P must prove more than
neg…the Sullivan reckless standard is not measured objectively by whteher a
reasonable publisher would have published it, instead its a subjective tet require the
P to prove the D had serious doubts about the statements truth or possessed a high
degree of awareness of its probable falsisty. thus if a D truly believed the statement
there is no malice defamation. This constitutional malice standard also applies to
public FIGURES…also for a defamed private person who has voluntarily and
affirmatively thrust hinto the public limelight involiving a single public conttversy,
Sup held states should be given wide latititude for awarding tort remedy for those
monetraty public figures, provided states do not impose liability without fault..
(donlad trump was a public figure who became apublic official…storrmy daniels, who
alleged had sex with the Donald is a private individual who thurst herseldf intto the
public limelight. A majoirty of states and mutli states have adapted a mere neglect
statndard, thus if by the exercise of reasonable care, the Defamation D could have
discovered the statement was false, then this private indiviudal can revcover for
defamation. Regardless of what standard. astate adapts, a momnetary public figure
can only recover for actual damages pleaded and proven (no prsumed damages) and
a P can not recover punative damages unless the P establish tehe SUullivan
standard of actual MALICE

What is a tort- tort liability generally arises from duties that are imposed by law
without regard to any K. Tort laws are designed to protect others from the risk of
pyschological pr physical harm…unreasonable conduct commiited by a D agaisnt a P
body, mind, property, privacy or reputation. Torts are done in SIN…tort of nuisance -
means to unreasoably annoy another…nuisance liabilty arises when a D mainstains
an offesnive condition or activity on his land that causes unreasonable and
substantual discomfort to a neighbors land (bright lights, loud noise, smoke dust,
bells, unpleasant smells or vibrations from machines,) it is an unreasonable non
trpassory invasion of a P right to enjoy her land…Common law did not describe any
particular imperssible conduct, it simply focused on whether the D use of her land
substantially an inreasonable interfered witht the plantiff enjoyment of her land
today must ct require that the nusaince arise from the D intential neg or abnormally
dangerous conduct on. Her land, but a D who knowingly causes an offensive
invasion onto another proper is deemed by restatement of torts to act
intentionally. (D children scream laugh and play in D backyard, D neigbor N has had
several operation and is extremely nervous, N actully gets ill because of the children
playing…even tho N use and enjoyment of her land was substantially interfered with
by D use of his land this use is not tortious because a perosn of average sensetivity
would not be substantially annoyed…a privae nuisance a noise one person or only a
few in contrase a public nuisance exist where the annoyance is to the public in
general (water or air pollution, dump creating unreasonable smells in the communtiy,
or a race track in a residential area is a public nuisances, the remedy for a public
nuisance is goverment action, general individials lack standing to abate a public
nuissance unless that indivisial has suffered some injury UNIQUE AND SUBSTANTIAL
DIFFERENT FROM THE PUBLIC AT LARGE…..the fact that a nuisance such as a
cement plant (lotta dust) or hog farm odors existed when the plantiff moved into the
neigbor is just ONE FACTOR in determining whetehrt the D activities on its SLAB
(LAND?) are unreasonable…the defense of comming to a nuisance is asserted
against a Plantiff who moved into the neighborhood where the D activities had been
on going for years, this makes It more difficult for a plantiff to prove a nuisance since
the P purchase price for the property probably reflected a lower price since it was
located close to the exisiting nuisance….a continuing trespass for 10-20 may ripen
inn to eunuch adverse possesion or a PIG easement by prescritition byt not a
contiuing nuisances…passsisve unslightly ness allone, without other harms to the
plantiff enjoyment of her land is not a nuisance (soloar panel putting up ugly solar
panels, isnt a nuissance)…a nusisance doesnt arise from a landloweners refuse to
alter a natural condition on the land (failing to cut weed, spray for insects, or to
remedy flloding caused by a beaver dam…in order to assert the tort of nuissance the
P must have some interest in the adversely affected land (Fee interest, life estate,
adverse possessor, tenant or family member) however employees or guest can not
assert a nuisance claim since they lack a sufficent interst in the realty…3 remedies
for tort of nuissance 1. Induction where the ct balances the equities by using
comparative hardship test and by weighing the public interest (PILE) in having
thenusance coined or stopped 2. Self HELP which is riskayyy because it exposes
someone seeking to abate a nuisance tp possible liable for trespass and property
damage …3. Money damages too compensate a plantiff for the plaintiffs lose in value
of the property plus any discomfort flowing Fromm the D nuisance conduct (illness,
personal inconvenience….

Tortious conduct makes you wanna SING—

Reckless conduct is greater risk taking than ordinary neg it is activity intentionally
performed with a conscious indifference to a known or obvious risk of harm to
others, with reckless the danger ceased to be a forseeable risk (neg) and becomes
highly likely to occur…the term reckless conduct and gross neg are used
interchangeably. It involves a state of mind which is not present in neg…usually
speeding is ordinary neg, but speeding on a crowd street or speeding while
intoxicated constitutes reckless conduct…for reckless conduct punitive conduct can
be awarded (BED BUG PROBLEM)

Neg - unreasonable conduct caused by D -FIT (failure to take reasonable precaution,

inadverentless, thoughtlessness. Failure to exercise reasonable care that a
reasonable prudent person would have exercised under similar circumstances,
which failure proximately caused a physical injury to P who was forseeable
threatened by D unreasonable act or omission. Negligence is unreasoanble conduct
creating a forseeable risk of harm to a P to whom D owed a duty of care…to
successfully assert a neg claim P must plead and autimatly prove by prodencance of
the evidence DIP - Duty of care to exercise reasoanble care to the injuries P and D
breached that duty. P suffered a physical injury to his person or property, P injury
were proximately caused by D breach of duty..the injuries P must demonstrate that D
owed a specific duty to this particular plantiff not merely a general duty to act
reasonably

A duty of reasonable care is oweed only to those who foreseeable could be injuries
by D conduct AKA those within the zone of danger, this prevents the neglect actor
from being exposed to limitless liability to an indeterminate class of persons…
foreseeability is defined as being reasonably anticipated i.e that is the outcome that
flowed from D conduct should have been anticipated by D….(not a forceable
plaintiff…unlike carsation and damages, which are both factual issues for the jury
the question of whether someone owes a duty of care is generally a question of law
for the ct

when. A person voluntarily assumes a duty, he must act as a reasonably prudent

person. A volunteer may discontinue adding a person unable to adequately protect
themselves provided the injuries person didn’t rely on continued aid and is not
placed in a worse position than before the volunteer started to render aid…doctors
and nurses have no legal duty to stop and assist an injured person but all states have
Good Samaritan laws shielding them from liability from neg. some juris extend good
samaartian protection to anyone who voluntarily and without expectation of
compesenation renders emergency medicinal assistance at the seen of an
accident…generally no duty is owed to protect someone from harm caused by a3rd
person, however some D have a duty to control the conduct of a 3rd party tortfeasor
and to protect P (parent owes duty to protect a child. Common carrier owes a duty of
care to passengers. A business that opens it doors to the public owes a duty to
protect its invitees. A school has a duty to protect students, pyscharist owes a duty
to warn of credible threats of serious harm to identified victims of a patient. Under
the doctrine of respondent superior the torts of agents or employees (not
INDEPEDENT contractor) may be vicariously imputed to the employer even if the tort
was commented in disregard of the employees instructions. P must show that the
employees tort were committing with the scope and in furtherance of the employers
business. The tort must be one closely connected with what the employee was
suppose to do, substantually within the time authority and space limits and motivate
at least in part by a purpose to serve the employer

Where the employees intential torts rise execulisvely from the employees motivation
then the employer is not vicariously liable. A plantiff injuries by intential or reckless
act of employee may sue employer for failure to exercise reasonable care in hiring,
retaining or controlling employee. This laibility is based on the employers active neg
in exposing 3rd person to the foreseeable risk of misconduct by the employee, and is
seperate and distinct from respondent superior passive liability!!!!!!

An unexpected and suddens acts

Partions and a bar or student at a school, usually doesnt render the building or
school liable because most batteries are not foreseeable, public establishments and
schools are not asbolute ensures for the safety of patrons and students, to revcover
P must establish that P was on notice and was negligent in not preventing the
battery.

Rule once tort law imposes a duty generally that duty is to comfirm to the
reasonable of reasonable conduct inn. Light of the forseeable risk of harm to others.
The duty to act reasonably is governed by an objective RPP. While D physical
disablity may be considered his lack of experience of mental deficiency will not, thus
it is not a defense that an inexperienced or unintelligent D did the best that he could.
However, if D is an expert, then her conduct will be measured by the higher standard
of care owed by a reasonable prudent EXPERT.

Altho insanity is a contract and criminal law defense, it is not a defense to TORTS, it
is a defense however when P seeks PUNATIVE DAMAGES. And exemption to the RPP
test is made for infants, many jurisdictions find children to be non Sui juris (not there
own master) and thus incapable of committing torts as a matter of law until a certain
age…an infant over the non Sui juris age is judge by a quasi subjective standard
based on what would be expected of a prudent child of similiar age experience and
intelligence (7-14 rebuttable presumption that they are capable of neg, 14 on then
neg but you can rebut it). If a child engages in adult activity (eg driving a boat, snow
mobile, water skis, or handling a fire or power tool then the child is held to the adult
standard of RPPs because such activities are deemed inherently dangerous)…MOST
states have abolished intrafamiliy unity and permit family memebers to assert tort
claims against each other if those same claims could have been asserted between
parties outside the family relationship…parents schools daycare centers and baby
sitters owe a duty to adequately supervisor children in there care. They take the
place of the parents, in LOCO parentis (take the place of the parent. Absent a statute
parents generally are not vicarious liable for the torts of there childre merely
because of the parent child relationship but tort claims against parents are
permitted if the child is sick (employment relationship were a child commits a tort
while acting as a servant or agent of the parent 2. Where the parent entrust or
knowing leaves in the childs possession an instrument which in like of the childs
age, intellegnce, disposition or prior expeerince, creates an unreasonable harm to
others. Whwere a parent knows of a child tortious conduct and directs approves or
consent to it or 4. Where a parent has the ability to control the child but fails to
exercise that control even tho the oparent knew of the child propensity that could
endanger a 3rd pa

rty

A P asserting a neg claim must plead and prove a phsyical injury to P body or
property, neg law are designed to protect individuals from the risk of physical harm
to there person or property with a few exemptions (a non medical, professionals
malpractice, neg claims generally are not permitted solely for pyschological injury or
purely economic loss in the absence of a physical injury or verifiable physical
symptoms. The economic loss rule serves to maintain a distinction between a tort
obligation and a contractual one . Once P establishes a personal injuries damages
may includes past and foreseeable future injuries, medical expense, lost wages, and
physical and emotional pain and suffering (you can sprinkle everything once you get
physical injury) a pain and suffering recovery requires prove that the injuries P was
conscious and cognatively aware of the pain after the accident, if the victim died
painlessly or instantly there is no recovery for pain and suffering. A panitff claiming
lost earnings must prove the amount of actual past earning with reasonable
certainty. When D tort has damaged real or personal property, damages are
calculated as either 1. Difference in the property value or 2. Cost to repair or replace
the damaged property
When D tort has completely destroyed real property, P may recover the fair market
value of the property at the time of destruction. Note that if D tortious converts P
property, the fair market value of the property may be measured as of the date of the
conversion or at a reasonable time thereafter. R- just as K law an injured plantiff has
a duty to mitigate tort damages, under the doctrine of avoidable consequences an
injured P is required to undergo reasonable medical treatment and may not recover
for those injuries and pain and suffering that could of been avoided by such
treatment…the jury may be instructed on mitigationn of P lost wages, where P was
not medically restricted and yet failed to look fror work, the ct must instruct the jury
on P duty to mitigate his lost wages, even tho D contact with P must be reasonablely
forseeable, the exact resulting injuries to P need not be. The tortious D takes P as he
finds her, and is iauble for death, psyical injury or disability if the injuries P had a soft
skull, brittle bones, or preexisting physical or mental condition that is agreeivated
The egg shell skull P venerability will not relieve D of liability…Under the common
law collateral source rule, which is abolished in about half of the states, evidences
that P has receive compensation for P injuries is not admissionabl, thus P could
recover from D expenses arlready reimbursed by insurance of workers compensation

By proving factual cause, P establishes that but for D conduct P injury would not
have occured. Generally factual cause alone is insuffience to establish negligence, P
must further demostrate that D careless conduct was a substantial factor in causing
P physical injury….Proximate cause requires a close casual connection between D
neg conduct and P injury, to recover P must prove that D conduct was a cause in fact
and that P injury was a natural and probable consequence of D conduct. Proximate
cause limits a D liability for the consequences of her negliegent conduct. P must
prove that D neg conduct was a substantial factor in causing P physical injury a neg
D may not be liable for P injuries caused by remote, bizarre, or extrodinary events…
(after swimming for several houses, an eerience swimming was severely injured
when he die into the shallow ends of D pool, the P sued the pool owner for failure to
post a legally required death warning at the shallow end of the pool, RULE_ in order
to recover P must prove that D breach of duty was a substanital factor in producing
the injury. Here P careless conduct rather than D failure to post warnings was the
sole proximate cause of pP injuries (doctor fails to find cancer, but if you still gonna
die anyway - too far gone — then he’s not the proximate cause…but if loss of
chances maybe 18 months earlier, then okay…

An injurt may have more than one proximate cause, P is not required to eleimate
every other prioximate cause of injury and need only offer suficent evidence from
which a jury may conclude that it is more probable than not that the injury was
proximately caused in whole or in part by D. At common law where the acts of
several Ds contributed to P injury, each is 100% jointly and severally liable for P
injuries regardless of each D apportionated share of fault…today many states have
ssttauroliy abolished or limited joint and several liability but apply it on the BAR
exam unless they tell you otherwise..generally P has the burden of proving that the
conduct of a specific D was a proximate cause of his injuries where p suffers a
single injury as a result of the careless conduct of multiple tortfeasors and D cannot
establish which D caused the injury, then under the alternative liability theory the
burden of persuasion on the causation issues shifts froM P to the Ds who are in a
better position than P to identify the actual cause of P injuries, if neither can prove
who inflicted P injury both are joint and severally liable even tho only one fo them
could have caused. It

At common law when P released one joint feasors, P released all the other
tortfeasor, and the D who paid can then sue the others for contribution to share in
the cost of the release based on their share of fault, By statute a majority of states
have modified the common law rule so that the release of one tortfeasor doesn not
release the others, in these states a codefendant who negioates and buys a release
from the injuries P prior to judgment is released from any liability from P claim as
well as from any claims for contribution by the remaining D. Depending on the juris
the release party may or may not seek contribution from the otheer Ds, rule states
also differ on how the release affects P claim against the other D, states typically
reduce the final judgement by the amend paid for the release and or by the release
parties apportioned share of fault…( of 500k, thats 80% of the verdict then…generally
its the plaintiff that takes the risk of ultimately settling in the settlement…if its
10mil, you won’t get more,,,air you let the 50

High low agreements - p & D may enter into a preveridct hi low agreement, which
sets a maximum amount on T liability and a minimum amount that P is ensured
recovering regardless of jury verdict, a jury award of less than or greater than the 2
amounts triggers the hi or low amoiunt in there agreement. If the jury returns a
verdict between the 2 amounts, the verdict governs.

Successive proximate cause arise where P injuries are proximately caused by

multiple acts of neg occurring at different times, the original tortfeasor is liable for
all subsequent forseeable injuries proximately flowing from the initial tort. (If P
injuries are aggrevaiited by the subsequent Malpractice of doctors hospitals or
nurses, tort law considers this malpractice forseeable and proximately caused by D
original breach of duty (ie. D negligence is considered a substantial factor in bringing
about these forseeable additional injuries…a forseeable successive cause does not
break the chain of causation AND the original D is also liable for P injury flowing from
the foreseeable intervening cause, however a superseding or independent proximate
cause is extrodinary and so attenuated as to be unforeseeable breaking the original
chain of causation & cutting off the earlier tortfeasor liability for P subsequent
injury…Medical mall practice is forceable,,, rufshinght o hispotl accident, thats
foreseeable, proximate cause to accidental shooting example….whether an
intervening cause in independent and sur is whether the event was normal and
forseeablie or extrond

The intervening tortious actor alone is aliable for subsequent injuries if the earlier
neglect act has become to remote to constitute a proximate cause of P injuries, this
limits the initial tortfeasors fault to the injury. P own neg conduct may be the sole
superseding cause of his injury
Motion to dismiss, summary judgement, direct verdict. When she lacks direct
evidence of D neg. Because race ispa gives rise to am inference not presumption.
Burden of proof neg remains with the P even tho D falls to come forward and explain
what happened

Race ispa requires P to prove PEA. A probabily exist that neither P nor anyone other
than D caused P injury…P. Probability that the P was injured through no fault of his
own . E instrumentality of anyhwhere causing D exclusive control, or D had the right
or power to control it when the neg occured A. - accident would not have occured in
the absence of neg…Where they are multi D who act independtly and P can not show
that they acted in concert or that one hand control, RESP ispa is not available, an
important exception arises where as in a surgical room situation the Ds have better
information or may be gaged in a conspiracy of silence

ALTERNATIVE THEORY - 2 carelessss PARTIES

RES ISPA - ONE PERSON IN CHARGE, or 2 in CONCERT (2 NEG) except doctors.

TO rely on Res ipsa P need not elimate the possibility of causes of injury, it is enough
that the evidence supporting the elements provides a rational basis that the injury
was caused by D neg..altho res uipsa is a neg theory, circumstantial evidence may
also be used in a strict liability claims, the jury may injure circumstantial that the
accident could only have occured due to defect…absent a valid excuse, the violation
of a statutory safety of standard of care is neg per se, which gives rise to a
conclusive presumption of neg that the jury must accept..to be entitled to Neg per
Se, P must establish D violation of a safety statute proximately caused P injury. P
was a member of class of persons that the statute was designed and intended to
protect, the harm to P was the type of harm the statute was designed and intended
to prevent. Because neg per se gives rise to a presumption , if D does not rebut the
evidence with a valid excuse for violating the statute the jury must find agaisnt D on
the liability issue. Most licensing statutes and vehicle registration statutes are not
approbate for neg per se, they are primarily revenue raising, and don’t seek to
prevent harm and do not necessarily seek to protect any class of persons. D’s
compliance with a safet statute does iconclusionively establish due care, but it is
evidence of due care. D was driving a truck carrying dynomatie, without a state
[ermit to transport dynamite. D’s truck was involved in an accident, and due to a
deftly manufactured latch on the truck and box of dynamite fell out. It did not
explode but bounced and truck P a pedestrian. Here, neither strict tort liabilyt not
neg per se will apply. D will be lable only P can establish D neg, (neg proximately
cause P injury). Neg Per se doesnt apply where 1. Even with diligence and care, D
could not have compiled with the safety statute. 2. D acted in an unanticipated and
sudden emergency. 3. Violating the statute was safer than complying with it (if no
neg per se, then find them Neg in there own right). AR defense, asserts that P
voluntarily assumed a known risk of harm, it may be asserted as a defense to claims
of neg or strict tort laibility, in many states P may assume even the risk of D reckless
conduct. Assumption of risk doesnt apply to intential torts i.e a person may consent
to a btattery, but may not assume the risk to it. R- P may either expressly or implied
assume the risk of D tortious conduct. Express AR arises when a P orally or in
written (usually in an exculpatory cause in a contract) releases another from future
tort liability. It is an express agreement prior to P injury that D doesnt owe P a duty
of reasonable care, an express release of liability is a comlete bar to P neglence
claim….implied AR is not based on an express K or release, it arises when P
volunatrily encounters and is injuried by a known common and apparent risk CAR)…
for D to be successful in asserting the implied AR defense, P must have been able to
have accept or reject the risk and the descion to do so must have been voluntary. If
D conduct foreclosre all safe and reasonable alternative, then the AR is not volunarty
and the defense does not ap

Primary implied assumption of risk is a bar to recover in neg for injuries to

particaptants in or scepters act sporting events or recreational activities arising
from the CAR of the sport or activity (COMMON AND APPARENT) to recover the
injuried P must show that D increased the car risk…many courts have recognized the
that implied AR doesnt fit well with comparative neg and some have limited its
application to barring claims for injuries arising out of atlehtic and recreational
activities
An exisiting danger invites a rescue. A tortfeasor who has placed herself or another
in danger is liable for injuress suffered that comes to the rescue of the endangered
person, a rescue is deemed foreseeable and thus injuries arising therefrom are
deemed proximately caused from the original wrongdoer. DIR also applies to the
rescue of endangered property, DIR applies to strict products liabilty cases. For DIR
to apply, the rescuer must of had a reasonable believe that the person being rescued
was in peril. The rescuer groos neg, reckessnes or bizarre act may constitute a
superseding cause, cutting off the liability of the original defendant….at common
law, police and fire personnel do not benefit from danger invites rescue, under the
fire fighter rule, they assume the increase risk inherent in there dangerous
employment and generally may not recover for personal injuries from there person
whos tortious conduct caused the emergency…the firefight doesnt prevent fire or
police personale for suing for neg where the injury doesnt arise from the heighten
danger of an emergency (eg where a neg driver hit an officer issues a parking ticket
or driving back to police station) also doesnt apply to suits for intential torts,……
many juris have severely limited or abolished FF rule

emergency doctrine, when a person is confronted hit an unexpected and sudden

occurrence, leaving her little r no time tot think, she will not be founmd neg if her
actions where reasonable under the emergency circumstances. In an emergency a
perosn may act without reasonable skill if the objective RPP would believe that the
good likely to be accomplished by her conduct outweighed the forseeable risk of
harm that the lack of competence might cause…a person acting in an emergency
situation is not held to ordinary standard of care, unless 1. D created or contributed
to the emergency or 2. D should have reasonable anticipated the emergency

In about half of the states and at common law, tort liability arising from an exisiting
danger condition on land, depends on the duty owed to the perosn entering the land.
The P purpose for the visit determines her status and the duty owed, the visitor may
be a trespasser licensee or invitee…A trespassory takes rthe land as he finds it!
including with exisitng latent dangerous defects, and animals that may attack.
generally. no duty of reaosnable care is owed to a trespasser except to avoid
intentionally or recklessly harming her (ie possessor may not willfully injurer a
trespasser and must refrains from acts indicating or disregard for human safety…
once a possessor becomes aware of a trespassers presence a duty of ordinary cause
arise to ______ and to warn her of any known latent conditions possing a risk of death
or serious injury. If the possessor is aware that part of his frequency is used by
trespassers, a duty arises to take reasonable precautions to prevent harm to them
eg, make the path safe or to warn of any latent defects…if the possessor knows that
the trespasser is injuried or helpless, the possessor must act reasonably to provide
affirmative assistance, even tho the possessor didn’t cause the harm in the first
place…a licensee enter the land with a possors express or implied consent for the
licensee own person purpose, eg friends, guest, and solicitors, a possor owes a
license a duty to warn the license only of known latent dangerous defects…no
liability arises if a licensee is injuried by a hidden danger, of which the possessor
was unaware, even if the danger could have been known by inspection. Once
inspector learns of hidden dangerous conditions, he has duty to warn licesee and
repair defect…INVITEE is a person who enters land that is either 1. Open to the
public, even if the visit is for a non business purpose or 2 a private premise to
bestow a benefit on the possessor (pick up or deliver goods or make repairs)..The
duty owed to invitees requires the possesor to reasononable inspect and sdisocvover
latent dangerous condition and to warn and repair invitees orf there existance to
make premises safe for the invitee, , lack of actual knowdlege by the possesor is not
a defense because the duty owed to the invitee is to reasonable inspect thoses
areas f the property into which the invitee may come….the iposseser is deemed to
have constructive notice of a hardazous condition when the condition is visible and
apparent and havs existed for a suffiencent length of time to afford her a reasonable
opportunity to discover and remedy it…invitee liabilty extends only to those areas
open by the invitation, by going piutside that area the invite becomes trespasser or
licensee depending on whether she had the owners express or implied consent

Trespassing children, the doctrine of attractive nuisance treat trespassing children

as invitees, under this doctrine, the possessor is liable for physical harm to
trespassing children when the harm is caused by an artificial condition on the land
and 1. The place where the danger exists is one the possesor knows, or has reason
to know that children are lilley to trespass. 2. The possessor know of should have
known that an artificial condition posed an unreasonable risk of dead or serious
injury to trespassing children. The risk of harm was not Lilley t be recognized by
children!!!!! The financial burden of correcting the danger was not great, the
possesor breached its duty by failing to use reasonable care to elimate tor reuce the
danger to trespassing children…the active nuisance need not be wanted attracted
the children onto the land, because the doctrine is based on the foreseeability of
harm to the trespassing children…attractive nuisance liability does not extend those
(abilities) or risk that children should have realized (danger from drowning or falling
from heights)…attrative nbuisance isnt available to a child engaged in adult
activity !!!!!! Under the modern trend, about half of the states have adopted a
reasonable care standard to which a ___owes a duty to anyone other than a
trespasser, regardless of status as a trespasser (RELOOK) rather than forcus on p
status, these states focus on the conduct of D and whether D maintained property in
a reasonable safe condition under the circumstances….

a P who slips and falls on D property must prove a latent dangerous condition
existed & that D 1.created the dangerous condition 2. Had actual notice of it 3. Or
had constructive notice of it because it had exisited for a sufficent lenght of time
such that D had suffiecent time to discover and correct it…a possesor of land can
not insulate herself from liability by delegating the duty to maintain the premise
while one who hires an Independent contrractoror is generally not liable for the IC
torts, the duty to mainatain a safe premises is non delageable
Public way- possessors owe a duty of reasonable care to avoid endanger others on
the public way, or on adjoining property….liablity is imposed if a condition on law
subjects passers by to an unreasoanble risk of harm…the fact that a possessor
conforms to industry standrds or custom is releveant on the issue of neg, but not
dispositive particularly where making the premises safer requires relatively modest
cost. Most states have a recreational use standard that limits a land owners duty of
care on private land open for public recreational use, there is no duty to warn or
keep the land in. Safe condition if no fee is CHARGE to recreational users of the land

Govtmental immunity- common law sovereign immunity still shields state and federal
for liability for the exercise of governmental functions that are discretionary which
involve an element of judgment or choice and the exerciise of reasoned judgment
capable of achieving difference accepted results..generally the federal gorand state
are not liable to indiviudla P for the nonfeesants of basic minsitrerial govetmental
functions (eg- neg failing to provide adapted and timely police or fire protection, or
failing to c;lose an icey road…thethe municapla tort doctrine, since we owe a duty to
everyone, we owe a duty to no one…many juris waive liability for the MALFEASANCE
Of ministerial functions in limited circumstances, P. Must show the govt assumed a
duty to P, distinct from that owed to the general public …where the govt neg rises as
a properties, in a as a property owner or landlord, the govt is subject to the same
govt rules as private landlwoners and owes duty to prevent forseeable injuries…a
government entity owes a property duty to exericise reasonable care in mantiaiing
streets sidewalk parking lots and real property, but juris typically impose special
procedures and a notice requirement under the pothole law

Strict tort laibility - to recover in strict liability P does not need to establish intent or
neg. strict tort liability is imposed on D who knowingly engages in adbormally
dangerous activity, which are those NOT COMMONLY PURPOSED IN THE
COMMUNITY and involve a high degree of risk of serious injury that can not be
eliminated by the exercise of reasonable or even the outmost career…knowingly
exposing others to ___ justifies the imposoituon of this strict liabilty

The following factors BODS, finds well for a ct finding abnormally dangerous
activities 1. Benefit to the community is outwieghted by its risk of harm 2. It is not a
common and familiar occurrence in the community 3. A very high degree of risk is
involved 4. INAbility to elimate that risk thru the exercise of reasonable care 5. The
likelihood of severe harm from th activity. Strict liability is imposed even if the
resulting harm was caused by an unexpected force of nature. P may assume the risk
of the non negligent operation of an abnormally dangerous activity. R0 strict tort
liabilty can bot be avoided by employing an IC there is a nondelegable duty to
conduct such activity without causing harm to others

Tort laws imposes strict liability on someone who harbors a wild aninmal that she
knew or should have known had vicious propensity or dangerous tendencies, wild
animals are those which are a matter of common knowledge are veracious or
unpredictable, one who harbors a wild animal is strictly liabily for liable for personal
injury or property damage proximately caused by the animals dangerous
characteristic. strict liability I imposed for injuries resulting from 1. an attack 2 fear
of an attack 3fearful reactions by other animals that proximately cause personal
injury or property damaghe…if the wild animal is under the owners control, then
liability fo the reaction of humans or other animals resulting in personal injury is not
strict but rather is grounded in negligence…strict tort liability is limited to the
harmful results of the animals niormal dangerous propensity ..where no duty is owed
to a trespasser, strict tort liability is not imposed for the benefit of the trespasser

Domestic animals are those customarily devoted to serving people, tort law imposes
strict liability for personal injuries caused by a domestic animals if the otwner knew
or should have known the animal was vicious or had dangerous tendencies. Vicious
and dangerous tenches are an animal inclination or habitual tends to act in a manner
that might danger a person person or property. R- a dog is not necessary entitled to 1
bite before strict liability is imposed, look at whether it demonstrated vicious
propensity, this is bear its teeth, growl or snap at anyone….strict tort liability is
imposed on an animal owner even P injury would not have injured but for the
unexpected 1. Innocent neg or reckless conduct of the 3rd person, 2. actions of
another animal or 3. Forces of nature

An animal owner is liable for personal injuried cause by the neg failure to properly
confine a domestic animal that is usually fenced in. This liability is not imposed for
cats and dogs unless the owner was aware of the pets habit for interfering with
traffic…in most juris, even where an animal owner used reasonable care to fence in.
An animal, absolute liabitly is imposed for property damage caused by trespassing
domestic animals inclined to roam..
intent is where D desires to cause a physical or mental impact on D person or
property. Intent may be implied, where the circumstance of P conduct were
substantial certain to occur..unlike in neg claim where P must plead and prove
damages, prove of damages is not required to establish a prima facie intential tort…
economic and noneconomic damages are presumed and P does not have to prove
that P suffered any harm. There is no civil tort claim of conspiracy,

Assault is a mental invasion as oppse to a bettery, which requires physical contact

with P. P is assaulted when he experiences apprehension of immediate harmful or
offensive contact, an assult is one or 2, an attempted battery or intent to cause to
immediate by D gesture…fear by P is not a required element of an assault as long as
P believes she will be subjected to immediate harmful or offesnive contact. P must
be AWARE OF THE ASSULT ie she must have apprenshion of an immediate bodily
contact, it does not matter if the assault was intended as a a JOKE as log as P
experience apprehension for his safety. D must have been in a poition to immediate
carry out the threat. (A threat on the PHONE is not an assault, futuree or conditional
threats also are not assaults)…a battery occurs when D intentionally causes
aharmful or offensive bodily contact with P, and accidental touching may be
negligence but it is NOT a abatteryyy….R- the intent required for a batteru is THE
CONTACT not the intent ed or unintended harm that results…a battery can be either
1. Intnentially inflicting harmful or offensive contact with P, 3. Intending an assault
but senttingin motion a force that accidentaly or intentionally caused offensive or
harmful contact with P

under the doctrine of transferintent when tD intends to to commit the torts of assault
battery o false imprisonment, D is liable for those torts on the intended victim or on
others standing NEARBYregardless of wheter it was forseeable, intneded or not.
Examplye D violently beat up X, P wo was close by became apprensive of a beattery
by D, D is liable to P for the tort of assault. D does not have to directly strict P, it is
nough if P intenitionally sets in motion a force which produces the harmful or
offensiresult…there generally must be some contact with P, his clothing, or
something he is holding leaning on or riding. Except for ordinary social contact, no
matter how trivial the incident isa battery is actionable (P does not have to prove tea
D contact harmed P) (kisses, blow smoke etc) unlike an assault, P does not have to
be aware of the battery…the2 most frequently used offensves for assault and
battery, p express or implied consent or 2. justification where the force to used, used
was used in self defense. P inpliedly consents to ordinary social contact, thus when
P partipates in a sporting activity or enters a crowded public space there is implied
consent to reasonable contact…if a plantiff indicates that she doesn twanna be
subjected to even ordinary touching a subsequent touching may be battery..if
consent to the contact was obtained by fraud or mistake, it voids the consent if the
mistake was to. Amterial aspect of the touching> D must be aware of P mistake.

The defense of justification or self defense is based on the reasonable use of force
that D reasonably believed necessary to protect himself or another from an imminent
threat assault battery or false imprisonment

if a reasonable person i the D circumstance would have belief that force was
necessaery, then the D is justified even mistakenably, in using force providied the
foced was reasonable and not execssive . R- if a D is justifed in usuing force, but
uinitentionally kills or injuries a bystander then the D force is nevertheless privelege
and the D will not be liable to the injured bystander, unless he used the force
NEGLIGENTLY. Here the D conduct wil be judged under the emergency doctrine (US)
in a minority of states, when protectig a 3rd person from violence a D can assert
justification only if the person he was aiding could have justifiably used force, in
these states a person coming to the rescue of a 3rd person takes the risk that the
person being aided would not have been abla to assert justification under the
circumstance, thus the D steps into the shoes of the person he is aiding…in a
majority of states, …in a majority of states a D may use force to protect a 3rd person,
if such forceREASONABLE appear necessary, even tho the D was mistaken. (MAO)…
the use of reasonable FORCE is justified to immediately recover stolen property if
the force is used in HOT PURSUT, a demand for the property must first be made and
only reasonable force can be used! If there is a lapse of time after the theft, then the
justification for using force lapse and a battery occurs, instead the D should either
call the police or sue the thief for thre tort of conversion or replevin..a mistake even
a reasonable mistake for using force, for the protection of Real or person property is
not a justifiable defense. Deadly force for the protection of personal property or to
expel a treaspassor from the the land is not justifiable (Q25, p31). If there was a
bailment and the bailee wronhfuly refused to return the chatttel, the bailor can not
resort to force to retake the property

A custodian of children (parent teacher or Guardia) is privileged to use reasonable

force to prevent a 3rd person from harming the children or to prevent the children
from infliction personal injury or property damage on 3rd persons (negligence not
battery baseball game children exmple)
Is an intentional and unprivileged confinement and restraint of anther against her
will for any period of time, the restraint can be a lock or a threaten assault..blocking
the P car, or taking her keys, where her car is her only reasonable mood of egress??
Future threats are not suffiecent for false imprisonment…(if you try to leave ill call
the police and have you arrest)…the P must know of the confident, or 2. Be unaware
of it but suffer an actual harm, such as hunger thirst or resulting illness. A P must
have no known (to her) reasonable avenues of escape. Subjective test! A good faith
mistaken as to the person confined or a mistake that the confident was justified IS
NOT A DEFENSE TO False imprisoment …there is a privelege to detain and confine a
deranged or intoxicated person to prevent immediate harm to that person or to 3rd
persons. Today the most frequet false imprisonment claim are those involving
suspect shoplifters or employees charged with wrong doing who are summoned to a
supervisors office and questioned, an employers thread to fire the employee is not
sufficent to void the employees consent to stay in the confined office and be
questioned

Merchants are privileged to detain suspected shoplifters for a reasonable time and
manner if they have reasonable grounds to belief the shopper is a theif, the merchant
doesnt have to wait iuntil the shopper attempts to leave the store, but can shop and
detain the shopper as soon as she exercises control over the goods in a manner
inconsistent with a merchants rights

False arrest is a false imprisonment by someone asserting LEGAL authority to make

the arrest, probably cause to arrest is a complete defense to a false arrest claim,
every false arrest is a false impriosnment, but not vice versa. Two type of arrest, one
with arrest warrant signed by judge, which is privileged from a civil claim against the
arresting officer eeven if the warrant was erroneous issued by the judge. (No
probable cause to issue the warrant) or the officer arrest the wrong person, provided
his mistake was objectively reasonable…….A WARRANTLESS false arrest, a civl
claim for false arrest can be defected by showing there was probable cause to
arrest, even if they wasn’t probable cause to make the arrest the claim is defeated if
the person arrest is subsequently FOUND GUILTY. If the arrest person is
subsequently indicted by thre grand jury, this fact is admissible in the civil case and
some proof of probable cause to make the warrantless arrest. Evidence of dismissal
of the criminal charges or acquital by the grand jury is admissible to show an absent
of PC but it is not conclusive…A person who calls the police and intitates the
criminal complaint, resulting isn an arrest by the police, is not liable for a false
arrest claim….R- a police officer for any offense, including a traffic offense or a
private citizen for a felony may make a warrantless PC arrest fr a crime that is
committed or that reasonably appears to have been committed in his presence (HE
sees it happen and it not relying on 3rd party hesrdsay that it happened)…to make a
warrantless arrest for a prior felony, he didn’t see and is rewlying on someones
hearsay statement that it did, a police officer was reaosnbalae believe, even
mistakenly 1. A felony was committed and he was arrresting the felone. A citizens
arrest for a prior felony, that he didn’t see, is privileged from a false arrest claim only
if in fact, the felomy was committed and there is reasonable belieef even
mistakabley that he is arresting the felon

Intentional infliction of emotional harm- tort of outrage, law volume 2, this tort
requires proof that the D intentionally or recklessly caused SAD by a CEO (D conduct
was extreme and outrageous) and P must suffer sever and debilitating emotional
harm. TO PROVE SAD some ct req medical evidence and not the P mere recital of a
speculative SAD claim, emotional suffering includes all highly unpleasant mental
reactions such as fright, horror, grief, shame, depression, loss of sleep, loss of
sexual interest, or increased levels of anxiety. (P and D had consensual sex, but D
secretly recorded it and then revealed it ton an online porn site, unlike the tort of
NEG infliction of emotional harm. A PHYSICAL injury is not required to recover for
SAD CEO…the D skillful picked P pockett and stole his wallet, on the internet P offer
a 100 reward for its return, D returned the wallet and all of its contents (Battery -
offensive bodily contact, and he didnt have to be aware of that contact while it waas
occurring) many states recognize a SAD CEO tort, when a noncustodial parents
abudcts a child from the custodial parent (Q26, P32)

NEG infliction of serve emotional distress - historically ct have been reluntact to

allow neg claims that seek recovery for emotional harm without any accompying
physical injury, purely emotional harm is easy to fake and difficultt t disprove. On a
case by case basic cts permit recovery for soley emotional harm neg caused with no
accompanying physical injury but only if the facts sufficiently gutrantee the
generousness of the P emotional trama claim…ordinarily a P asserting this claim
must prove 1. She was within the Zone of Danger caused by the D neg conduct, thus
a dip duty of care was owed by the D to the P and the plantiff safety was
threwatedned by the D neg (mere MISS), 2. A reasonable person woulda been servely
emotionally distress by the D emotional conduct and 3. P suffered a physical injury
AS WELL AS EMOTIONAL SUFFERING

P went to doctor X who advised P that she had herpes and a venarial disease, later
doctor X called be and said HAHA it was a joke, this CEO conduct was extreme and
outrageous and would be IIED, if P suffering was SEVERE AND DABILITALING, and no
accompying physical injury is required for this intentional tort…..2. im sorry I made a
mistake, which would be NEG IED, which usually requires a physical injury, however
some cts have held that even without a physical injury these facts assure that P
suffered emotional harm and that her claim was genuine and not spurious, thus P
could recover from Doc X for the neg infliction of emotional distress. When P went
home and told her spouse what doctor X said, the spouse thought that P was
unfaithful and beat up P…can P sue X for spouses beaten (NOOOOOO a tortfeasor is
not LIABLE FOR THE CRIMINAL ACTS OF 3rd persons!! That were made possible by
his neg act, unless the 3rd party conduct was foreseeable at the time doc X neg told
P of her condition

Bystander Emotional suffering - mental distress suffered by a bystander who was

present and witnessed an intentional tort (battery) committed on a 3rd party can
reocover if the D was aware of the Bystanders presence, so that the mental impact
on the bystander was forseeable, when a D act intentional he intends not only the
desired results, but also those results that he knows are substantially certain to
happen (eg. D shoots H in front of W) bystanders who are IMMEDIATE family
memebers may recover for there emotional distress without a physical injury, if W
was a strange then she would have to prove she suffered a physical injury…
Emotional injury neg inflicted don a family member- bystander who are close family
memebers may recover for emotional harms without a phsyical injury, if in a minority
of states (NY) they were within the zone of danger and were threatened by the D neg
conduct. In 38 states, the ZONE OF DANGER req has been replaced for Family
members, allowing them to recover for purely emotional harm, provided the family
member contemporaneous perceieved the event, but didn’t have to be within the
zone of danger..

Intentional torts to property interests - conversion, is a intentional tort committed

against another personal property, realty can not be converted, a conversion
substantially interfaces with other uses, possession or enjoyment of her personal
property. A D intnetionally steals or destroys the P chattel…a mistake as to who
owed the property is not a defense to the tort of conversion, which is CONTRASTED
with the crime of larceny, where a mistaken claim or right is a defense. When the
tort of conversion occurs, the P can not be compelled to take back thee stolen goods
and is entitled to recover the market value of the chattel, on the date and place of
the conversion. R- where this is an intentional unauthorized physical possesion, by
the D briefly moving borrowing another personal property without permission, this is
not the tort of conversion, but the TORT OF TRESPASS TO CHATTEL because of the
D brief dominomn and control coupled with his good faith not to steal…a trespass to
chattel is liable for conversion damages, if substantial damage to the chattel occurs
while the D is in posessio of the chattel, regardless of fault (X mistakenly walks out
store with P hat, upon reaching the side walk, he relied his mistake and 1.
Immediately returned the had (no conversion) 2. (Kept it for 3 months then returned
it - conversion ) 3- a gust of wind blew it away and it was lost (conversion), 4, on the
way back to the restaurant a car neg crash into X car causing flames to destroy the
hat. X is liable for P hat even X did not neg Bring about the crash
If a bailee who is authorized to make some use of the car, exceeds the permitted use
and drives the car out of the lot for an errand, this is a trespass to chattel , if
substantial damage to the car occurs thru no fault of the bailee, the bailee is liable
for conversion damages…if possesion of chattel was originally lawful, borrowed
witht he owners permission, then a conversion neverthesless occurs, twhen the
bailee refuses to return upon demand, or disposes of it prior to demand, this is
similar inn concept to a TIP LARCENY, under the continuing trespass ! If B a bailee
losses the P bailed vase or B drops it on the floorr and it smashes, is B liable for rhe
tort of conversion (NOOOO BECAUSE HE DID NTO INTENTIONALLY ASSERT
WRONGFUL DOMINON OVER THE CHATTEL, INSTEAD HE FAILED TO EXERCISE
REASONABLE CARE (However, if B was a merchant and mistakenly sold the vase,
then B has intnetionally exercised wrongful dominion and control, and B desired to
transfer the tile resulting in the tort of conversion

Tort of trespass, trepass is a physical entry onto another land without justification,
prilege, or the possessors permission expressed or implied. A trespass entry can be
either intentional reckless or neg, a possesor of land owes a dip duty to known
trespassers to refrain from inflicting wanton injury and to warn the trespassory of
latent dangerous conditions if a trespasser was unlikely to appreciate that
danger….R- extended tort liability is imposed on trespassers for there unintedened
and even non neg conduct, causing property damage or personal injury (tresppor
driving carefully on P dirt road runs over P child, who darted in front of the
treespassors car 2. A trespassers non neg fire spreads from fireplace and burns
down P house 3. Where a trespasser leaves an open door, allowing the homeowner
mentally challenged brother and is injuried..at common law, even if no actually harm
occurs to the plantiff land because of the trespass (hiker or surveyor mistakenly
comes onto be land) a commonn law ct will award nominal damages….the modern
view is that nominal damages are available only for an intentional TRESSPASS (even
mistakenly) under restatement of torts a P must allege resulting damages from the
trespass in order to plead a prima facie RAN trespass claim (reckless entry) A, the
entry was the result of an anbimally dangerous activitu (blasting dynamite) N- Def
neg entered the land or neg caused an object or 3 perosn to enter that land…
Damages must be pleaded and proven to recover for an RAN trespass …R- a non neg
unintentional entry onto another land is not the tort of trespas, even tho the D entry
caused damage to B property unless the D was engaging in an abnormally dangerous
activity (Neg entry require proof of damages) (non neg entry on the land is not
trespass)

The doctrine of accession (mistaken improvements) arise when the Tresparot takes
good from the P land and increased there value, that value goes to the land owner
and the trespasser can not seek Quantum Merit for labor and services…reasonable
force can be used to expel a trespass, just force is privilege and is not a battery,
however the privelege doesnt allow an ejectment, if it would place the trespasser in
a position of unreasonable danger off of the land. There is a privelege to eneter
another land for a private necessity, to sit on the P land to protect person or property
from a serious and immediate threat outside the land, but liability is imposed on the
person entering the land with the prveleeg for another resulting actual damage
caused tot ht eland…R- there ois a privelege to enter another land rtto recapture
chattel and that entered another land as a result of the forces of nature or to recover
stolen goods brought onto another lands without the land owners consent or
knowledge that they were stolen, but any sdamge to the land must be paid for…if
stolen goods enter the land with the landowners consent or knowledge, then a
reasonable amount of damage can be inflicted without liability to recapture the
stolen chattel…R- if chattel enters another land thru the fault of the chattel owner
there is no privilege tot enter that land

Tortious interference with the performance of a K- Rule - someone who has

knowledge of an exisiting executory contract and who intentionally interfere with its
performance by inducing one of the contracting parties to breach the K, is liable to
the other non breaching K part for resulting consequential damages. A TIP claim may
even be asserted for interfering with a voidable K (SOF, or lack of consideration) and
even for a K at will

No TIP liability for inducing the breach of an illegal K or 2 where the person urging
the breach has either A. An economic interest or a Fiduciary relationship with the
breaching party, unless the advise to breach was motivated by fraud or illegality
(LAWYER advising client to breach a K, or corp director advising the corp to breach
the K)…only a KID can be sued for TIC. TIP tort liability imposes liability only against
a D who was not a contracting party …a Contracting party who breach the K is liable
only in K not in TORT

Invasion of privacy - IP involves a person right to be left alone from highly offesnive
invasions of privacy, it requires conduct that a reasonable person would consider
outrageous and damages are assumed. This tort can occur in CLIP (commercial
misapportiate of name likeliness or voice, without the P written permission for
advertisement or trade purposes for the Defendant taken commericlal advantage of
the P reputation and prestige without paying the P for this use, this is also known as
a celeb right to publicity. In a majority of states, this right ENDS AT THE CELEBS
DEAD but 16 states allow the right to be asserted by the celebs estate. Where there
exists a conflict of law in this area, look to the law of the state where the celeb was
domicile at death to determine what state law to apply…there are two 1st
amendment exceptions applied to news publications, A. Udner freeedom of the press
the news media is free to use the unauthorized images of celebs, under the fair use
doctrine to illustrate news worthy events (the P performed as human cannon ball at
a state fair, that night a TV station broadcast his entire 15 sec act and the Sup ct
held that the nonconsecual broadcast of the entire act went beyond fair use and
violated the P public right of publicity…@.d The press right to reprint the P
photograph if it previously appeared in its news publication to illustrate its news
worthy content, even tho that photograph was placed in an adverstiemnt for a
publication….CLIPS (L publicity placing a plantiff in a highly offensive false light
before the public) many states reject this claim, because it duplicates the tort of
defamations…R- to be liable for this tort, the D must have knowledge of the false
light or must act in a reckless disregard of the false light…I- intential highly offensive
intrusion into the P seclusion of solitude of privacy (repeated phone calls by a debt
collector, unpermited entry into the P home or hospital room, photographing the P
inside her home with a high powered lens, illegally wiretapping the P phone, or
inserting a peephole into a bedroom or bathroom in a hotel motel or holiday inn. This
invasion may also include the tort of trespass…P - public discose of highly offensive
private facts involving the P to a large # of people concerning the P private life, and
which facts are not contained in a public record and are not newsworthy or of public
concern…(P so died in the Iraq war, at his grief striken funeral, defendant pickted on
the sidewalk outside the church with posters stating THANK GOD for dead soldiers,
God hates dead soldiers, and thankGOD for 911 (P sued D, for D intentioal tportious
intrustion at rthe daddy right of solitutudeand seclusio at the funeral, the SUP Ct
overthrowm the 3mil verdict because the D breach involved a matter of public
interest on a pblic sidewalk and the 1st amendment protects harmful and hurtful
preach on public issues…such speech can not be punished or prohibited by a tort
claim

Punative damages…PD are not award to compensate a plantiff but to punish an D

egrioguos tortous conduct, and to deter others from similar condcut in the future..PD
are not awarded simply because a D wrong was fraudlent intentional or reckles, but
because it was quasi criminal, malicious, and or outrageous…example a vicious
batterty, intentional inflcition of emotional harm, false impriosment , or spiteful
defamition…PD are warranted where the D intended to actually harm the P, or where
the D recklessly or intnetionally was indifferent to the rights of others…Federal state
and municapal govt are immune from PUNATIVE DAMAGES!!! BUT NOTTT THERE
EMPLOYEEEEEEES, the same is true in a 42 USC 1983 civil riights claim, where PD
can not be sought from a municipality, but they are recoverable personally from a
municapal employee…PD can be recovered from a manufactor who was aware his
produce was defective and unreasonable dangerous, but nevertheless continuted to
produce it….Due process prohibits cts from imposing grossly execessive PD awards,
it requres a DE NOVO REVIEW of a juries PD award and under the porportionalitu
theory. The ratio of PD to compensatory damages should almost never exceed single
digits and in many cases PD shouldnt exceed compensatory damages (4x the amount
of compensatory is close to the line of consititutional inperprierty, absent extemely
egriogious reprehensible conduct)…if a D dies prior to judgement then in 44 states
punitive damages can not be imposed on his estate, if a P dies from the D tortious
conduct then if that conduct would warrant PD, then PD may also be sought in the
wrongful death claim….under the complicity rule an employyer is vicariousy liable for
punative damahges only if the employers superior officer ordered, participated in or
ratified the employee outrageous conduct also PD may be imposed agaiinst an
employeer for deliberately retaining an unfit servsant

LOss of consortion claim - when a tortfeasor inflicts person injjruy one of 2 derivative
claims may also arise against the tortfeasor, 1. loss of consortion, 2, if the tort
victim dies from the tortious conduct then a wrongful dead claim arises for the
decedent intestate distrubtees, R- when one spouse suffers personal injury DURING
THE MARRIAGE a tort claim arises for the other spouse to sue the tortfeasor for loss
of consortion which is an injury to the martial relationship

A spouses claim for loss of consortion msut be joined wit the injuried spouses
personally injury claim otherwise it is BARRED!!!

Wrongful death claims - R- when a D tort proximately caused the P death, then the
tort claim survives the P death, as an asset of the plantiff estate, a WD claim also
arises but any recovery on that claim passes directly to the intestate disributes and
not the decendent estate. a wrongful death recovery can seek the decendent lost
earnings that would passed to his heirs, 2.. the monetary value for the decedents
perosnal services that woulda been provided to the survivors 3. loss of any
inheritance that woulda acculmuated had the decendent not died…D- dcendment
medical and fineral expese resulting from the wrongful death 5. Noneconomical
losses for grief and loss of affection (44 sattes, not NY), A WD arises only if at the
moment of DEAth, there was a valid personall injury claimm against the D that had
not settled, gone to judgement or was not barred by the statute of limitatios…the
compartively neg of the injuried spouse or decdent reeduces the derative claims or
both loss of consortion and wrongful death…..

MEdical Mal, is a doctor failure to use that deegree of skil and learning ordinarily
used under similar circumsatnces by a reaosnble doctor, Nationwisde standard
proximately causing the P injury, generally exprt testimony is required to prove the
doc didnt use the skill and care that a reaosnble doc woulda used 2. that deriation
proximately caused P injuries…frequently doc assert the affirmative defense of
conpartaible neg under the avoidable consequences theory. the doctine of informed
consent is based on the concept that a patience has the rigth to make decison as to
what should be done to her body, a doctor has a dip duty to apprise. apateince of the
foreseeable risks involved and of any alternative treatments available…there is no
duty to maintain informed consent if EMERGENCY TREATMENT IS REQUIRE DUE TO
A SERIOUS INJURY or DEATH OF THE P….whether conduct is ordinary neg or is med
mal is determiend by whther the tortios act or ommison involved matters of medical
science requiring special medical skills, not possed by a lay person
CONFLICT OF LAWS- people and goods routinely cross state borders and litigation
arising from these interstate transcations may involve conflciting laws of 2 states, ct
firs tmust determind that an actual conflict exist where the laws of 2 states provide
diffeetnt rules of law that will affect the outcome of the cause differently…if a state
statute or case law has to be introduce in another state of fed ct, then ct must take
jduical notice of that law, the topoc of comflcit of law frequenly arise in lawsuit
either commenced or removed to a fed ct on the basis of DJuris, where the fed ct
then has to decided which state law is to govern that controversy, between a P and
D fom different states. under the erie outcome deternativ test federal laws must
apply the conflict of law rules of the state where the fed ct is sitting, this ensures
that the subtantive law used in the fed will be substantially the same as if the case
had been tried down the street in the state ct, if the case is transfered to another fed
ct outside the state based on the convience of witness or parties or because a fair
trial could not be had, then teh transferring ct state conflict of laws rules will be
transffered too and appplied by the transferee federal ct recieivng that caese

In tort cases, the old confluct of lawsrules applies, a terrirotial approac and always
aply the law of the state where the PLANTIFF INJURY OCCURED. today in almost
every satte were a conflict arises between the tort laws or 2 sattes courts use the
goverment interrest analysis test, where the policies underlying the competing laws
are considered and whether the policy for enacting that states law would be
advanced by its use in the pending case…a State X intrafamily immunity statute or a
X state guest statute is enacted for the purpose of protecting state X insurance
companies against collusive claims and for keeping the cost of insurance for X
residence at a reduced rate, to determine whcih state had the greatest interest in
havinh its law resove the issue, ct look at which state has the most significant
relationship with the parities and the issues involved by considering the followiig
grid C factors (Govt iinterst and underly purpose for its law, and whether that policy
would be advanced by using that law in the case…The state if any, where the parties
relationship was entered into ….I state where the injury occured. where the inury is
economic in nature such as breach of contract or legal mal claims (the claim is
deemed to have occured in the state where the P is domiciled and has sustained the
economic impact… DOmiciles of the parties…C -state where the tortious conduct
occured causing the P injury…in tort cases where the above contacrs are even
distrubuted between the 2 states, then the ct should focus on its own law and its
state interst in having its law apply.... to the P claim…in tort casuse a number of
state disctint bewttween laws that regulate condict from preventing an injury from
occruing, such as standards of care and rules of the road or 2. aws that assign limit
or prohibit liabilty after a tort has occured…for example POPE (vicarious liabilty) Civ
pro page 7 (guest stattutes or charitable immunity, these laws are law shiffting
rules, because th estates policy behind these defenses is not to regulate conduct or
behavior, the policy behidn the loss shifting rules (govt interesting) is to protect the
domiciles in that state and not to protect domiciles form toehr states, thus cts
should apply a pro recovery loss shifting rule favoring P domiciled in that state to the
P in that lawsuit from that state. Likewise ct should apply loss shifting D that limit or
deny recovery in favor of a D to a D in that suit, that is domiciled in that state.R - if
the conflict of laws involve post accident loss locating rules and the parties have a
common domicile, then the law of the parties common domicile generally is applied
(A State X driver and P a passenger from state Y were in an accident ad the driver
neg cause the P inury in an accident in state Z, state Z law prevent recover from
pain and suffering greater than 500dollars…here state Z has no interest in having its
law apply, the laws of state Y & X have no such limitation on non economic loss
recovery….here the ct will not apply state Z law and will allow P to recover without
the 500 limitation

H and W are domiicled in state X, W is injuried in an accident in state Y caused by

the neg driving of H, state X has an intrafamily immunity statute but state Y has
ablosihed it, if W sues H in. astate Y ct, what law should the state Y ct apply (in
conflcit on law causes matters of civil procedure generally are governed by the
suberb law of the forum where the case is tried….S - service of process, S- SAD, W
waiving serivce of process, A- serving D agent. P personal devlierly on the D, S-
service according to state law where the ct is sitting……..

U - untimely claims (SOL) SOL periods vary considerably from state to state…a
majority of states aplpy there own forum SOL regardless of whether it is shorter or
longer than the SOL of the state where the claim arose…R- to prevent forum
shopping by noon residence, some states provide that if the P is a nonresident, then
the ct should aplpy the forums SOL, or borrow the SOL where the claim arose,
whichever period is shorter!!…P in superb— PLEADINGS, RULES OF EVIDENCE,
including the rules for priveleges…L LIAR, provisional remedies (CIV PRO PAGE 6 #1)
…B- burden of proof. (RULE in W action againt H, the state Y ct would aply it own
SUPERB state why procedural law…Rule- the restatment 2nd conflcit of law, treats it
as substantive law, and not procedural, thus the law of the satte having the most
signifcant relationship with that issue will have its law apply !!!!! (SOF, PAROLE
EVIDENCE RULE, JOINT AND SEVERAL LIABILITY, CONTRIBUTUONS AMONG JOINT
TORTFEASORS - see pleading lecture)…the state Y ct choice of substantive tort law
regulating the safety and conduct to prevent innuries from accuring, usually is
governed by the law of the state where the injury occured. Thus to determine if H
condcut is neg, state Y law would be applied because that is where W injury
occured, and state Y has rhe greatest interest in havinh its law apply…R- when the
Confluct involves post accident rules, which prohibit , limit, cancel, or allocate
financial losses resulting from tortious conduct then the law of the state where rhe
tort occured is LESS important when the conflcit involves of how much and who
bears the financial burden for a tort, most cts apply a govt interest analysis test by
aplpyingh the following 2 rules 1., when the parties involved share a similar domocile
then apply the loss allocatinh law of the common domicile 2. when they don’t share a
coomon. domicile, sicne the loss allcoation rules of the forgein state are designed to
protect domicles of that state and not domoicles of other states then a pro
recvoerloss shifting rule (comparitveive neg) clearly should be applied to a P
domciled in that state…..Howver loss aloocatingdefense denying a recovery,
(contributory neg or charitable immunity) should be applued to a D domiciled inn that
state…. SINCE H & W share a comon domickle, then the satte Y ct will apply state X
intrafamily immunity law preventing W from recovering agaisnt H, state X has the
greatest interest in having its laws apply to its domicles…Displacing state X law
would not promote or advance state Y inersest, which is for the protecting of state Y
family memebers and not for the protection of state X family memebers….examples
of loss aloocating or limit laws

MISSED….the ct denied P motion (R- comment on the 3 ct orders, the federal ct had
federal ct juris based on DJ, H complaint demanded relief in excess of 75k and there
existed complete diversity since H was a satte Y ctizen and D was a citizen of state
X. SAD J are the keys to the federal ct house…the federal rules of civil proc
authorzied the __ pursuant to swaps in diversity jurisdiction cases, federal cts in
state Y apply state Y law (CHILLI) to determine if the ct has personal juris over the
D…R- even tho personal service was made on D outisde state Y personal juris over D
was obtained because D committed a tortious act within the state, given rise to
specific long arm RIOT juris, in the P suit against D, state X guest statute will be
applied by the state Y state Ct, becaus eunder the interest analysis test, state X has
the most significant govt interest with that issue. the guest statute us a post
accident limitiation on recovery, and since the guest and the host are both from
state X, the state Y ct will have no legit interest in displacing State X guest statute
and applying state Y law. in H eaely suit in the fed ct against D, since these 2 parties
had dissimilar domiciles, the ct applied the loss allocating rule of the state where
the accident occured. State Y had the most significant interst in applying its law to
protect H a state Y guest, and it that suit there would be no significant interest of
another juris. which would compel displacing the Lex Loci rule and having state X
guest statute ressolve that issue..R- the state ct properly denied P collateral estopell
motion for sumaru judgement LISP (LAW FOR SUMMARY JUDGEMENT) t because
even tho the driver neg was conclsively established in the hitch hiker earlier suit in
the fed ct, and D had a full and fair oppurtnunity to contest that issue (CIV PRO- IF)…
however the issues were not idential in both suits, in H earlier suit, the standard of
care that was owed by D was oridinary neg, State Y law, but in P suit the standard of
care because of applicabilty of state X guest statute was whether D was reckless
inn driving while drunk
CONFLICT OF LAWS involving a CORPORATE PARTY - where a corp is one of the
parties in a lawsuit and the litigation involves the relationship of the corp, to its
current directors officers or SH, such as a derivative action, a claim for fiducariay
duty or claim against directors for inadequate disolsure to SH, then under the
internal affairs doctrine, ALL states adaoopt the law of the states INCORPATION to
govern that litigation, because that state has the greatest interest in havingh its law
apply, however where the rights of 3rd parties such as independent contractor
employed by the corp, accountants, auditors, or outside admin, external to the corp,
then the internal afairs doctrine is not applied, and the ct looks to the state law
where the wrongdong OKUURRRRED

Coflict in K cases- iin breach of K caees, 40 states use the center of gravity theory
by proving the SPEND factors of each confliciting state by grouping of each specific
state and applying the law of the state, that has the most signifcant contacts with
that claim. R- a K including a UCC sale of goods contract can expressly desigate
which state law is to apply in the event of a dispute, provide the K has A
REASONABLE CONNNECTION WITH THAT STATE…when a K chooses a state law to
govern it is implied that unless otherwise expressly state, that the choice of law
clause applies only tot the state substantive law, and not to that states conflict of
law principle, which are not even to be cosidered…in the absense of an expressly
choice of law clause contained in the K, ct consider the following SPEND factors…S-
satet where the subject matter of the K was located, P Rstate where the contract is
to be performed, E state whwere the K was executed, N state where the K was
egotitated, D domociles of the K parties

Liability insurance K- are governed by the law of sttate where the insured risk is
located in the insrance K…to save money on car insurance D falsely stated he was
domiciled in state X (NJ) but he was really a state Y domicile (NY) where D
preodimiately operated and garaged the car, after an accident D was sued for a milli,
I the X state insurance company dislcaimed ocoverage for D fraud, retroactive
cancelation of liability insurance is permitte dunder state X but not under state Y,
the ct allowsed the canceleation of the policy by usuing state X law

Conflucting state laws on transfers of property, the effective of a transfer of interest

in real property is always governed by the law of the state where the real property is
locsated regardless of wther the transfer is by intesacy in a swept will, by a sale, or
by an AID gift. R- on gifts of personal propety, look to the state where the person
prop was lcoate dhwne the gift wa smade, cause that state has the paramount
interst in having its govern the effectivness of an inter vious transfer…the
effectivenes of a testimatory transfer of propery located anywhere in the world, is
determined by weheteer the Decdent will was valid according to the law of SWEED P
(wills page 1), to determine the validity if an intestate transfer of personal property
look tot he intesacy law of the decent domicile at death.

EVIDENCE

Hearsay - is an out of ct statement being offered into evidence at a trial, TO PROVE

the trutth of the matter asserted in the out of ct statement..if an out of ct statement
is being offered fror the purpose of provingt that eithe rone . D a driver, M a
manufactor. Or P a possesor of land, had notice of a danger defect, then the out of ct
statement is not being offered for the truth of its ocntent. it is offered just to prove
the statement was made to D M or P, and that they had knowkedge of the dangerous
condition (BRIBE K)…in a claim for the decendents pain and suffer, a criitical issue
wqs wehther P died immediiately in the car accident, a police offeicer testified that
as he approached P car after the crash, he heard P moan HELP ME, this statement is
not being offered to prove its truth, but simply to show the statement was made and
that P was alive and thus P estate has a claim for pain and suffering

The moment a witness begins to quote, the moment a tesitfy W begins to quote what
another person says out of ct, then it involves testimony of an out of ct statement…P
a decedent previously told W a friend how she was injuried and how it was the D
fault, this is clearly hearsay if W attempts to tesify about what P said in ct, since it is
being offered for the truth of it content…cts and FRE exlcude hearsay because it was
not made under oath and was not tested by cross examination before the jury…
Hearsay includes a persons out of ct verbal or written statement as well as
NONVERBAL CONDUCT intended as an assertion for purposes of communitcation…
out of ct statement by HUMANS….police question asuspect about a murder and
nigga starts crying, at the trial the police officer can testify about this since crying is
not a stttement of fact, thus it is not hearsay…in a neg claim, P testified, Doctor X
told me my neck is permanetly injuried, this is Hearsya if offered for the purpose of
proving P neck was permantely injuroed, that is to prove the truth of the statement.
In order to prove this fact at the trial, doc X willl have to testify or offer the doc
busieness record as an hearsay exception, howebver if the purpose of P tesimony
was to show P mental angioush from hearing doc X prognosis, then the truth or non
truth of that stament is irrelevenat and is not hearsay, because the purpose for
which it is being offered is to show its emotional effect on the listener. BRIBE K…an
out of ct statement is not hearsay were LIABILITY IS BASED ON WHAT WAS SAID!
(where the words spoken constiitue a claim or defense - example, defamatory words,
fraud statements, TACO offer and acceptance of a K, bribe, threat, or donors word
while making an AID gift, these out of ct statements are not being offered to prove
there truth, but rather to prove the words were utter and it is irrelevant wheteh the
statement was true or not, since the words themselves consitute a cause of action,
a defense or crime

4 PRIORs - hearsay is all out of ct statements offered to prove the contents of the
satements including those of the tesifying witness, except the following 4 priors are
not deemed hearsay under FRE and are admissble for the truth of there content
provided the out of ct decalarent, states the stand and is subject to cross
examination (A withness prior inconcsistent JUDICAL statement that was given
udner oath at a trial, a hearing or depo, is admsissible to impeach the testifiy
withness as well as for the truth of its content…a prior non judical statement is not
hearsat when offered to impeach a witness because the out of ct statement is not
being offered for it struth, but simply to show the witness gave a prior different
version, thus W is not worthy of belief.

THe prior inconstant statement is admissble to impeach, but not admissible for truth
of content and the jury will be so intructed. A witness prior consistent statement,
and it doesnt have to had to of been uder oath at a former hearing, when offered to
rehabilitate a witnes, but only if that prior consitent statement was made before
there was any motivate to falsifly. 3, a witness prior record recollection (MEE JULY
2016) 4. a witness prior oral or written out of ct statement identifying a D at a line up
or showup, its not hearsay provided he identifying witness take the satnd and is
subject to cross examation..if because of the D changed appearance, or W faulty
memory, W can no longer identify the D at trial, then anyone who percived the
witness prior identification of the D can testify as to what W said!!!! THis doesnt
violate the criminal D 6th conftonation right which guarantees only the oppurnity to
cross examine and trst W crredibility under oath, in front of the jury…since the out of
ct declarant who identified the D, must take the stand, the confronationn clause is
satifed. (Pierper MEE essay 29)

If the identify witness dies, dissapears, or othterwise unavailbe to testifiy at D

criminall trial (MR POT), then someone usually a police offer who heard W out of ct
identification statement CAN NOT TESTIFY at the trial since it would be hearsay !!!
since W would not be testify at the trial…confronation clause and testimonaial
hearsay…the Confronation clause in the 6th and 14th amendmant garantees a
criminal D the right to confront witnesses at a criminal trial, it is NOT applicaable in
CIVIL CASES or criminal PRETRIAL hearing and POST TRIAL sentencing proceedings,
or in proceedings to revoke parole or proabtion…at a CRIMINAL trial it only prohibits
use of hearsay that is of testimonial in nature. Thus non testimonial hearsay, BCDE
26, is admissible at a crim trial, IF It falls within a hearsay exception. TESTIMONIAL
hearsay arrises when the Police are involved in procurring the hearsay statement
from the out of ct declarant, if an objective person would belueve that the statment
obtained could be introduced at a criminal trial to prosecute the D, then it is
testimonial in nature. SUch hearsay is admissble only if the out of ct decalarant is
UNAVAILABE & the crim D had a prior oppurtunity to cross examine the D (ex- at a
prior crim trial where the D successfully appealed his guilty verdict and a new trial
was ordered…to determine if the out of ct statement is testimonial in nature cts look
at rhe PRIMARY PURPOSE for aksing the question to the out of ct decalarant…
nontestimonal hearsay, is ABED BUSINESS RECORDs, which by there very nature are
not testimonial since the buisiness record hearsay exception doesnt apply to records
prepared for litigation. C- coconspirators admission, made during and in furtherance
of the conspircy. D dying delcaration because the primary purpose for the police
askinhg the question is to meet an ongoing emergency, E- excited utterance…with
the exception of testimonial hearsay in a criminal trial , hearsya is admissbile in a
civil or criminal case, bbut the party offerig the hearsay statemnt must prove by
properdance of the evidence that it falls within the ARIES dwarfsfs…inn ordeer to to
introcumenudce 1-11 (6 drwaf hearsay) the out of ct hearsya must be mR POD
unavailable to tesify at the ct.

M- Lacks memory…R- W refuses rto tesify even when order to do so by ct. P- W

invokes a privelege, O- witness outsdie the cts subpeaa border D- witness dead or
too stickt to tesify, if 6 DRWARF hearsay is admitted because the out of ct declarant
was MR POD unavailable, then the credibiity of that unavaiable witness may be
impeahed, just as if she had taken the stand and tesified…(by calling other witness
to show the unavailable witnesses bias, bad repuation for truthfulness in the
community, prior VIC acts (vicious, immoral or criminal acts) Prior inconnsitent
staements of the witness or prior convictions …W a witness at a price fixing trial of a
retail store testified that X a former employee of the D told W just after X had been
fired “this store has been fixing prices for years” and im not afraid to say this
because it would be hearsay at a trial (yes). At the trial could X out of ct statement
be used for any purpose, YES if X was called as a witness and X deneied the price
fixing, then it could be used to impeach credibitlity as prior inconsistent statement…
if X was Mr POD unavailable to testify, then X statement could be offered into
evidence because it was hearsay and didnt fall into any ARIES exepections…

an outof ct statement introdcued to show the state of mind of the listener duringh
the statement is not hearsya because it isnt being offered to prove the trurth of the
facts asserted but is INDEPENDLTY relevant to circumstantialy show the statement
affect on the listener (Believe, reason, intent, Bias 16p23, Emotion (fear), Knowedlge
or notice)
ADmissions of an opposoing party UBE 2018- an opposing parties out of ct
statements are not considered hearsay when offered against that opposing party,
the “agiaint opposing party’ req, prevents a party from offering her own self-serving
hearsay declaration (a plantiff can offer the D out of ct statement, and the D CAN
offer the plantiffs out of ct statements, but an admission can not be offered by a
party on the same side of the litigation …a coDef offerring another coDef out of Ct
statement…the fact that a party was mistaken when the admission was made doesnt
prevent the statment from being introduced, but an admission can always be
explained or contradicted to reduce the weight given to that statement by the jury…
Silence by a party may be an adaptive admission, if a statment is made to a party
that would be immediately denied if it was not true, but the party remained silence…
if a party silence is treated as an adapotive admission then botht the statement and
the fact of the party silence can be introduced by anyone who heard it. R- if a party
response could subject that party to criminal charges, then her silence generally is
not deemed an admission, otherwise it would penalize a person for exercise 5th and
14th tright to remain silent

admisision by a partner on partnership matters are binding on the paternship,

admissions by agents or employees are admissions are vicarious admissions against
an employeer if the statement concerned a matter within the scope of the
employment and was made during the existence of the relationship “the employee
had not retired, been fired, or quite when the admission was made”…admissions by
co-conspirators, an out of ct sattement by a CC which statement was intended to
further the objective of the conspiracy are admissible against all CC, each memeber
of the conspiracy is an agent of the other and such admissions are admissible
against all co-conspirator, such statement are not testimonial in nature and thus do
not violate the confrontation clause of the other co-conspirators (example 3 D where
charged with conspiracy, an hour after the bank robbery W a witness, over heard one
of em state “we better get ride of the guns so we wont get caught” W didnt know
which of the 3 made the statment - its irrelevant which one of the CC made the
statement, since its admisisbe against all 3 as an admission, made during and in
furtherance of the conspiracy. prior to admitting a CC admission againstt the other
co-conspirators, the govt must prove by a proderance of the evidence that a
conspiracy exist, but in proving the conspiracy existence, the govt can ofofer the
cCC statement

All conspiracy must come to an end, either cause th egoals where achieved or it
failed, a CC admission or confession to the police after the criminal emnterprise has
successful or unsucessufly come to an end, is admissble only against the out of ct
declarant, even tho it implicates the other co-conspriators
The BRUTON RULE- if CC#1 confesses to the police after the conspiracy has ended
and CC1&2 are jointly tried before a jury, then under the bruton rule, CC#2 right to
confrontaion, if CC1 implicating CC2 is admitted into evidence and CC1 doesnt
testify, even if the jury is instruct that it can only consider the confession against
CC#1, if CC1 confession can be redacted (white out) to ommit any reference to CC2
then the confession is admissible against CC1….judivial admisions are any
admissions made in pleadings, notices to admit, which at the trial can not be
contradict or exmplained by the party who made them , byut they are only binding
admissiions in that case

Judiall admssions containing a party admision from another case, or a current

pleading that was amended pleading from the current case are not deemed bindinh
admission but are simply admissios that can be explained or conttradicted just like
any oyher admission. Admissions made in offers of compromise to settle a threatned
or pending ciivil lawsuits….to encourage discussions to settle civil lawsuits, alll
admissions of faut or offers to compromise made in settlement negioateions of a
disputed calim are inadmissioble in a subsequent civil or criminal trial…this doesnt
prevent deritaitve evidence, evidence derived from settlement discussions are
admissible against. Party. (eye glass doctor example)….”after just having new brakes
installed byM mechanic, P breaks fail and P conlided with another car and was
injjuried, when P called M to complain, M said bring in the car tomorrow ill put inn
new breaks for few. M statment is admissible by P as an admission of fault, it is not
considered an offer of conpromise since therewas never any discussion of settling a
THREATENED OR PENDING LAWUIT, howebver if P threatened to sue M, mprind M
said i know the brakes were defective, but from what you were telling me you might
of been spendingh, ill repair damage to both cars if you relieve meof all claims,
everything M said is inadmissible at tiral as statements made in compromise
proceedings….R- an offer to pay medical, hospital or other similar expenses are not
considered an admission of fault and is not admissible at trial…however any
admission made during the offer to pay medical expenses is admissible (I will pay all
of you medical bills) not admssible (…because it was my fault) admissible…unlike
offersto settle a disputed claim, an offer to pay expense doest req statement in
response to a dispited claim “afteer striking thE P vechile at a rear from the stop
sigh” D said it was my fault I wast pay attention, I will pay all the damaget your car,
everything D said is sdmisssible at trial, because offer to pay property damage is not
a offer to settle a dispute claim or an offer to pay medical, hosptal or other similar
expense…admisisons made in plea bargainn negioations

To encoruage a crim D particaptio in plea bargain with prosec, any admissions made
in plea bargain to an attorney for the pros is not ADMISSIBILE agaisnt the crimmD in
the prosec direct case or impeachment. for this rule to aplpy D must have been
seeking a plea bargain and not just cooperating with govt prosecutors, it doesnt
apply to a D admissions while negioatin g with the police who promise to speak with
the pros…R- a criminal D can expreslly agree in a sign writing thtat a prosec can use
plea bargain statemtent for impeachment, if. a plea bargain isnt reache..any
statement by def consul in opening or closing arguement, or any statements from
cross examing withnesses that are inconsistent with the D sattements at the plea
bargain open the door to allow the prosecution to offer the plea bargain statements
att the trial that were made by the D…if a plea agreemnt is reached then the actual
plea of guilty and any admisssions made at the plea allocatution to the ct can be
subsequently used against the D (subseqent civil case, but plea must have been to a
FELONY, because under FRE colateral estoppel can not be based on a prior
msidemoeor conviction….in a criminak prescution for prejury if the D (crim K)
knowingly lied under oath when makinhg the plea or where he admitted guilt and
plead guilty to attempted murdern but weeks or months later (victim died) then at D
murder tiral, D admissions of guilt can be used against him…a D guilty plea is valid
only if done in open ct,under oath, intellegently, and knowingly done by the judge
explaining thenature of each charge to which the D is pleadin guilty and factual
charhges (asking D to explain what you didn that made you guilty of this crime) and
the likely consequence dof D plea, where a judge neglects to do this, then a D can
make a motion to vacate the plea but he must show a reasonable probability that but
for the cts error, he would not have entered the plea!!!!!

A prosec threat that uif D didnt pplead guilty that he would REindict the D on more
serious charges, didnt make the plea involuntary, even if a D pleads guilty, this by
itself doesnt bar the D from constitutionally challeneging on a direct appeal the
statutes used for him convictions…however if the D plea agreement contained a
broad express waiver of the right to appeal, then this would prohibit such an
appeal…subsequently remedial measures are not admissions of fault, evidence of
corrective actions performed AFTER an accident ,a re not admssible to prove neg or
culpable conduct…when a post accident chagne, repair or precaustion is preform,
which if taken early might have orevent the P injury, this evidence is not admissible
in CIVIL CASES to prove neg, Strict product laibilty, or culpable conduct..the rational
for this rule is that a D may habve exercised all of the care the law require, but after
the as a measure of extreme caution, D performed addition safeguards, then D
shouldnt be penalized for taking these saftey measure…subsequent remedial
measure is admissble when offered to rebut a D answer to the P complaint that
disputes the isssue of 1;Ownership or control of the realty where the accident
occured 2. The availability of feasibility of alternative safety matter (in D answer to P
complaint, or opening statement to jury, the D attorney stated that the D exercised
reasonable care or that he did as good a job as possible A. In maintaining the realty
B, in designing the product. C that additional safety devices or design were
economically or technologically feasible. R- this would open the door for the P to
impeach the D position to show the feasibility of additional reasonable precautions
could have been taken and in fact were subsequently taken by the D, these
Subsequent remedial measure would be admissible, not to show that D was neg but
to contradict (impeach) D position that they were no alternative safety measures
that could have been takeen to prevent the P injury
R- if a product design (dashboard) was modified or a warning was added to the
product to make it safer after P injury then this can not be introduced as prove that
the product was defectively designed, or needed a warning or better warning.
However, remedial measure taken by a manufacturer after the product was sold but
before the P injuries, do not fall within this exclusion and D remedial measures are
admissible against the manufacturer.

Business records - this hearsay exception, this hearsay exception allows recorded
entries that are regularly and systemicatially made of business facts, activities,
conditions or events to be easily introduced at trial for the purpose of establishing
the truth of the FACE facts asserted in the business record….To prove that the
recorded event occured, the BR will be admitted if it was made in the regular corse
of a profit or non profit business activity, and it was the regular course of that
business to record such info. BR may be introduced without any testimony from the
person who supplied the information or who made the business entry, the rational for
this hearsay exception is that records regularly required and systemically entered in
conducting a business are highly trust worthy because the entry had a business
obligation to maintain truthful and accurate records for the purpose of conducting
that business…and a criminal trial BR are admissible against a criminal D, since BR
are not testimonial in nature…BR are not preapred for litiigation but are preapred in
the ordinary, in regular course of an oridinary prepare business, thus even tho D cant
cross examine the records there is no Confrontation clause, by admitting such non
testimonial hearsay under BR exception…to offer a BR into evidence, someone with
personal knowledge of the record keeping procedures (usually the custodian of the
records) must either take the stand to establish the DRUMP elements or 2. Simply
submit an affadivt signed under penalty of perjury establishing the 5 trump elements.
Written notice of an intent to offer the records with a signed affadivt must be given
to the adversary, within a reasonable time before trial (TRUMP) T- record must have
been TIMELY MADE at or near the time of the mater of the recorded, to ensure its
accuracy, 2. It was kept in the ordinary course of a regularly conducted business
where it was the routine regular repetitive response of that business to make such
records, the records are trust worthy primarily cause they were regular kept and
relied upon In conducting that business 3. Out of court declarant providing the
information for the records, must have been under a business duty to record the
Information to the BR…rule - if someone outside the business supplied in the
informeation for the record, then that record is not admissible as a BR, unless the
3rd party statement FALLS WITHIN ANOTHER HEARSAY EXCEPTION which takes the
place of the business duty to report, here the other elements of trump must be
ratified, PLUS another hearsay exception for the declarant reporting the info (it was
the admission of a party opponent or it was an excited utterance by the declarant) M
type of entry regularly made in condition that business, the information entered must
have been needed and relied upon in conducting that business (H hospital records
contained a doctors note indicating that the accident was the D fault, but this note
in the business record is not admissible a sBR, because the regular routine repetitive
activity of a hospital is to record only info necessary for a patent diagnioses and
treatment…P person supplying must have had the personal knowledge of the matter
recorded, records pertaining to the routine maininance inspection and calibration of
a breatherlizer are business records, but the record resulting from the test on a
drunk driver ins testimonial in nature and not admissible as a busines record. Br
prepared for litigation usually are not admissible, unless the enter ins unfavorable to
the party who prepared it !!!! gneerally an accident report prepared by a business
(railroad engineer is not admissible as a BR, becaus eeven tho it was recorded
during the coursbusiness, it was not the regular routine of that business to record
accidents and thus not admissble, ut was prepared for litigiationing and not ralroad…
with a TRUMP BR theres a motive t be accurate, with an accident report theres a
motive to misrepresent the facts favorable to the person making the enettry…..if an
openet shows that the source, motive method or circumstance for preparing a BR
idnicates a lack of trust worthiness, then the CT MAY exclude it. (3 hours after an
accident, W and I witness and P plantiff gave there version of the accident to C a
police officer…if C had witnessed the accident, then the report would be admissible
since all 5 TRUMP ELEMTS would be satisfied…if P statement was an admission of
fault, (NOT HEARSAY) or was an excited utternace made to C just after the accident,
then the BR would be admissble as hearsay within hearsay, whichch is simply a
rhearssay exception within a hearsy exception and is admissible evene tho thre
decalrant were ot under.a business duty to give the information to C…

In a 42 1983 civl rights,,, a state recorded transcript of a 911 call to the police to
report that the policee were beating up an arrest suspect, is not admissible as a BR
because the caller was NOT UNDER A BUSINESS DUTY to impart this information…if
the callers out of ct sattement was either a present sense impression that described
the beating ass it was occurring or immediately there after, or the statement was an
excited utterance, then the tape recording would be admssible as a business record,
as hearsay witthin hearsay

Where an entry normally would be found in a business record or public record, if the
event had occured and it was the regular pratice of that bisness ot record that event
if it had occured, then the record is admissble to show that no entry was made of
that event raising an inference that it did not occur (med mal cause that a nurse
didnt administer critical medical prescribed by the plantiff treating physician, then
the hospital record is admissible to show that if the nurse had administered the
medicine, it would have been entered into the hospital record

HOSPTIAL RECORDS_ the entire hospital record is not necessary admissble as a BR,
because not all of the patrience statements are admissible under the business
record rule!, only those entries relating to the patience condition or treatment are
admissible (dates of entry or discharge, day to day treatment, symptoms of pain or
other entries dealing with a patiences physical or mental condition. Statements of
how the injury was inflicted are admissible but only if germane to diagnose or
treatment…Patient said his leg was injuried when he was injuried by a car, is
admissble as useful for treatment but his additional statement that “it was a black
BMW that had gone thru a red light” would be deleted from the record, courts are
more liberal in admitting hospital record statement, involving domestic violence and
child abuse because knowing the identity of the attacker is relevant

For the pateints physiological treatment… doctor X wrote in the hospital record, “P
wife said P was on his cell phone and went trhru a redlight when the accident
occured, when P sued D could D introduce this statement as part of the hospital
record (NO it was not the regular course of its business to take down information
irrelevant to treatment…(if P had make the same statements to doctor X and the D
called doc X to testify at the trial , is P statement to Doctor X protected by the
doctor patient privelege (NO because, this information was not medically needed to
treat P, feel outside the scope of the doc pat privelege, 2. P impliedly waived the
privilegee by putting his physical condition into issue, by commencing a personal
injury claim against D.

Public records PR prepared and kept by governmentt agencies are presumed trust
worthy because govt employees are assumed to be reliable and unbiased, a TRUMP
foundation doesnthave to be satisfied…3 type of PR, records required to be kept by
law, (birth death or marriage cert) (motor vehicle records, weather reports, criminal
or civl judgement, record real property mortages and deed 2. Records that set forth
the internal activities of goverment agencies (receipts and dispersement, personnel
record and the agencies existing inventory…3. Where there exists a legal duty
requiring an agency to investigate and report, then the factual findings from its
legally authorized investigative report is presumed trustworthy and admissible in
civil cases, the burden is on the party opposing the public record to rebut the trust
worthy presumption, here the trial judges considered DEEM 4 trust worthy factors T-
timely of investigation and report H -Wheher a hearing was held E_ expertise and
skill of the investigators M- any motivational problems (that is was it prepared for the
purpose of future litigation involving that public agency…..In criminal cases such
reports and findings are admissible ONLY against the govt, when it is offered against
a criminal D, the officials who conducted the investigation must come to ct and
personally testify about knowledge and observation and be cross examined by
defense consul, otherwise the criminal D right to confrontationn would be violated

Examples of public records admissble in ciivl cases (report by center of disease

control on tha cause of food poising, coast guard report on the cause of a boat
accident. C fire department report on the cause of a house fire, D autopsy reports, E
federal agency report on an airpplane crash and its conclusions and opinions, F US
department of justice report finding systemic defiencies in healthcare for prisoner at
a county prison was admissible was admissible in the prisoner 42 US 1983 federal
civil rights claim,

present sense impressions! Generally a Psi involves an unexcited statement made

contemporaroenous with an observation, it describe what was seen or being done
and is made while the declarant is perceiving it or immediately thereafter, this type
of hearsay is reliable because it leaves no time for refelecting and fabricating (4
PRIORS ARE NOT HEARSAY IF DUDE IS ON TO TESTIFYY)

Exicted utterance - an out of ct statement made by eitherr apartipant or bystander

who was under the excitement of a traterling event, it is the streets of nervous
excitement that prevent fabrication and makes the EU reliable, the party offering the
statement at trial has the burden of proving the speakers state of excitement

Statements of the declarants state of mid - this hearsay exception admit out of ct
statement to prove the speakers exisiting mental feelings, including statement of
motive, intent, pain anger or fear, depression or malice, but not statements AS TO
WHAT CAUSED HER STATE OF MIND!!!! A Declarants statement of memory or belief
when offered to prove truth of fact remembered or believed, do not fall with the state
of mind hearsay exception (before she died of poising, spouse said to her friend, I
think my husband is tryna poison me, this is inadmissible hearsay because it doesnt
declare spouses existing state of mid, but rather is based on the spouses memory or
belief as to past events, statement of a speakers future intent or future plans are
admissble to circumstantially show that the declarant prob carried out her intent,
(ex- statements of an intent to travel to a distant city or pay a future bribe is
admissble to circumstially show that the speaker prob carried her intent…
involuntary statements of the speakers present pain, MOANS< GROANS< OR
SCCREAMs are admissible by anyone who heard em as statement of the speakers
current state of mind, statement made for the purpose of medical diagnosis or
treatments describing the speakers medical history, how the accident occured (if
relevant for treamtn)and past or present symptoms of pain made to anyone (family
member, ambulance, doctor or nurse) for the purpse of obtaining medical diagnose or
treatment are admissible by anyone who heard them ! Because of the strong motive
to tell the truth when seeking medical treatment and because it is unlikely a
declarant would lie about her health to gain an advantage in litigation…however FRE
also allows statements made by a patient to a doctor who was consulted for the
purpose of given expert testimony at the patients personal injury trial…FRE
abolishes all distintions between doctors who are cosntuled fro medical treatment
and those consulted for medical diagnoses, these statements are admissible
regardless of whether the patient is available to testify!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! These
out of ct statment made for medical treatment may be made by either a patient or by
someoine wuith aninterst in the patient well being (statement to a doctor, by the
parent of injured or sick children ( astatement to spouse 1 to 2, about there childs
physical condtion, is not admissionable, (HEARSAYYYYY) but if spouse 1 told 2 so
that spouse 2 could get advise from the fam dcotror hten spouse 1 out of ct statemet
is admsiibe, (after T death, there was litigaito in probate ct that on the date T
executed his well he lacked the mental acapacity to do so …could N a nurse testify
that on the evening the will was executed at the hospital when she went to give the
nigga a pain killer, T wife said to N, T has been hallunicating all day, so he prob
woudld not need the pin killer (YESSSS) because even tho it is hearsay its admissible
by a statement by a 3rd person, describing the patiences past symptons for the
purpose of giving or witholding medical treatment

In order to introcude the 6 DRWAF hearsay exceptions, the out of ct decalrant must
be UNAVAILABLE to testify at the trial (MR POD) dying declarations, in many states
the commo law dying declaration may be used only in criminal homicide cases and
the declarant must be dead…but also under FRE in the rare case where they are
mutilple homicide victims and 1 dies but the victim making the dying declaration
doesnt die, in the FRE homocide case that dying declaration declaratiion is
admissibe even tho nigga aint die…in an FRE civil case, the declarant doesnt have to
DIE, but must believe death was immiment and the D declarant must be
UNAVAILABLE!!! Thus if a Dying declar unexepctedly recovers this does not prevent
the dying delcaration admisisbility in a civil case profited he is otherwise MR POD
unavailable…FRE allows a dying delcaration in all cases except non homocide
criminal cases!!!!!! the critical factor for admiting a dying declaration is that at the
time the statement was made, the declarant must have belief he was gonna die
(hopeless expectation of impending DEAD haha) the dying declaration can include
statement to the causes of his injuries or the circumstances eading up to and
including the fatal Blowww, prior threats or pripr quareel, but the declarants
statsment must be based on personal perception and not on skpetualation,..after
being brtally beat by the D, V victim recovered but at the time of the time, she was
convolesent in another state and was pyschologically too weak ot relive the horrible
evenet by testify ing a D trial, vctim was MRPOD unavaable…W a wtiness testified
that just after the beating D screamed out!! IM AT DYING D DID IT, don’t let D GET
AWAY. (Criminal trial for aggraveated battery, not admissible as dying declaration
isnce it aint no homocide caseeeeeeee bitch!!! however it would be admissible in a
criminal case as exicited utterance….in the civil case it would be admissible as a
dying declarion or execited utterance

D withness tampering - intimidated witness rule, if because of a party wrong doing

such as threatneing bribing intimidating beating or killing.a witness, if that witness
becomes MR POD uavaialble to testify at trial then anyyyyyyyyy prior hearsay
statement made by the intimidated witness is admissiblea at a civil or cirm
trial…..the intiimated witness exception is not justifed by the inherent reliability of
the hearsay but is a public policy decision to reduce the inentive to tamper with
witnesses, thus any hearsay even if TESTIMONIAL IN NATURE is admissible against
a crim K, under the foreiture by wrong doing doctrine…the partyy offeringh the
hearsay must prove by a preponderance of the evidence that W unavailabiltuy was
causedby the other party…no FIGS man homocide D dont no auomatically forfeti
confrontation clause, from the homocide victim prior out of ct statements unless the
killing was undertaking with a specific intent to prevent the victim from tesifying at
trial !!!!!!!! Declaraion against the speakers interst

To admit a oral or writen declaration against the speaker interst, the PUMP elements
mus tbe established P- out of ct decalrant knowing made a statement that was so
contrary to her 3P interst that she would made it only if tit was trueeeee

BREAKKKKKKKKKKKKKKKKKKKK

Declartion offered by either side shall not be amsisble unless they are corroberating
circumstance indicating the statement was trust worthy ad relaible,,,that is to
prevent fabricating a declarantion against interest, there must be some evidence
idependent of that statetment , tendinh to support it

The residual hearsay exception - FRE residual hearsay is highly relaible and
necessary hearsay tha doenst fit into any of the hearsay exception, but fre alwaus it
into evidence iff it has comparable circumstantial guarantees of trustworthiness and
is more probative than any other available evidence..a majority of ct thta have used
this exception to admit hearsay use it on hearsay statements that fail to meet the
requiremnts of the hearsay exception..where hearsay fails to satisfy the busines
record exception because the party offering it fail to call a foundation witness to
qualify the records then the residual hearsay exceptions safes the day to admit the
records if they were otherwise reiable. the propenent for such hearsay much give
PRE trial notice of= an itnet to offer such hearsya along with name adress and other
particulars of the out of ct decalarant, to allow an opposing party a fair oppurntinuty
to object to this type of hearsay!

F- FORMER testimoneyy - testimoney ffrom any earier trial or depo, given by a now
unavailable mr POD is admissible in a subsequent differnt case or new trial of the
pending case, provided the partyagaisnt whom the former testimny is being offered
had an oppurtunity and similar motive to develop that former testimony by direct or
cross examination…D criminal trial for selling drugs ended in a hung jury, at tiral #2,
the people key witness at trial 1 died, mobed outta stated, or could be located after
good faith dillegnt search…they can introduce his prior testimoney from trial #1 to 2.
this hearsay even tho testimonial in nature would not violate D right to confrontation,
because D previously had an oppurtunity to fully cross examine W at the first
trial…..P sued M Inc, aleging M product a toaster oven was defected and caused a
fire buring down P home…P sought to intro E prior testimony where he testied he
was fired by M cause he reported that M prouducts were causing problems…E is now
died…E prior unemployment testimony was not admissible, because it was not fully
developed by M at the unemeplyment hearing as it would have been had E testified I
the current products liability case…FORMER testimony is admissible in the form of
atype transcrpit read the jury or by the testmony of anyone who heard the former
testiomy at the prior trial…

statements of pedigree AKA ancestry declaration - this hearsay exception allows out
of court written or spoken declarations of kinship to prove family decent and family
relationships, marriage birth or death, pedigree hearsay frequently is used to
establish rights to intesac and claims for pension and social security benefits…the
out of ct pedigre statement must have been made by an unavailable decalrant who
was intimently assocaiyed with the family, so that she naturally would have accurate
infor concerning kinship…the pedigree declarant doesnt have to possess personal
knowlede, but she may have heard the pedigree info from a family memeber who
naturally would of had accurate info….kinship can also be established by hearsay
stateemtn contained in army discharged, tax returns, family bible, tombstone
marking, or other out of ct oral or written statement

EVIDENCE
ees
. Thistrol

nabl

Oirrimin

Deny

My doctor said they nothing wrong with cha,

GIFT- to make a vlid gift the donor must intent to make an immediate irrevocable
transfer or owner by an effective delivery of the gift so that the donor immediate
surrenders ownership and control over the gift…a gift is not supported by
consideration from the donee, plus an donors oral or written promise to make a gift
is unenforceable as a taco contract! A gift is complete and irrevocable only when the
gift is delivered and put out of the donors control, there is no presumption a gift has
been made. THE AID elements of a gift must be establish by clear and convincing
evidence requiring proof that made it highly probable that a gift was made (CLAM
SRAP) the burden of production and persuasion is on the doneeee…a donors out of ct
statement occupying the delivery of a gift, is not hearsay because the words
themselves have legal effect, and those out of ct statements are not offered for the
truth of there content

Gift has 3 elements - 3 types of delivery ! ACE, actual delivery passes title

immediately, terminating the donors possesion and control , if the gift is accepted
by the donee, title vest immediately in the donee….C constructive delivery which
frequently arises when physical deliver is impractical either cause of the nature of
rhe gift or cause the donor is bed ridden (title and keys to a car or boat, or keys to
safe deposit box where the law recognize a symbolic delivery in form of a document.
…E Escrow delivery - the law allows someone other than the donor to deliver the gift,
however if the delivery is enstructed to the donors escrow agent then deliver to the
donee must completed before the donors death, inconstancy, or contrary instruction
to her agent, because a donor continues to exercise control over her agent and
the gift is not completed until the donors agent actually delivers it to the donee or to
the donees agent. If the escrow delivery agent is either 1. Independent contractor
such as the post office, county clerk recording, or corp stock recording office, or 2.
The donees agent , then the gift is complete and the moment that agent takes
possesion of the gift. Her the donors death, incompetency or change of mind prior to
the donee receiving the gift is no longer relevant because the gift was complete
upon deliver to 1or2 above.

R a window sent L her attorney a 20k ring, and said I want this to go to N my niece
but If I should need it during my life I may ask you to return it. L but the ring in the
safe, but L secretary learned the safe combination by secretly looking over L
shoulder when he opened the safe, S stole the ring and left it with J Jewler to be
cleaned, C a customary purchased the ring in the ordinary Course of J business. R
died, the death was discovered (the issue is whether R made a valid gift to N. N has
no right to the ring, because even tho R had donative intent, the ACE escrow delivery
was to the donors agent whos authority to deliver the ring was revoked by operation
of the agency law upon R death. What R did was intend to make an AID gift, but it
lacked an effective delivery. The issue is whether R estate can sue the Lawyer,
jeweler or customer for the tort of conversion. L was a bailee solely for the benefit of
the bailor, thus L would be liable only if L was GROSSLY NEGLIGENT. R estate has a
claim for conversion against J and C, neither had good title to the ring, J acquired
only that title that J transferor had, S was a thief and had no title thus even under
UCC art 2! Entrusting rule, J a merchant who regularly dealt in goods of that kind
could not pass title to stolen goods. Even tho C purchased the ring from a merchant
who regularly dealt in goods of that kind, r estate prevails against C, because S and
therefore J never had any title to recovey to C. The issue is whether C a customer
who buys stolen property cn get her money back from J. C has a valid claim against
J for breach of M FEET!!!!!!!! Implied warranty of title……ASSUME that R daughter D,
when she got the ring from the estate gave it to F her finances as an engagement
present, thereafter D broke the engagement, but broken hearted F refused to return
the ring (was there a completed gift) To avoid an unjust enrichment, most states
allow claims to recover money, realty or personal property given in comtempplation
of marriage where the sole consideration was a promise to marry. Most states treat
these gifts as conditional on the marriage taking place….in a minority of states, the
duty to return the gift arises only if the DONEE was at fault in breaking the
engagemen, the majority postn is that the ring must be return regardless of faults

T will left his coin collection to his friend F, at T death it could not be found amongst
T possessions (ademptiion) see will lecture 27. T son came forward with the coins,
stating T gave them to S as a gift during T lifetime. When faced with this, probate ct
apply 3 rules (claims of AID gifts, must be established by clear and convincing
evidence making proof of the gift HIGHLY LIKELY and the donee has this burden of
proof….2 the policy of cts not to attempt to salvage donative transfers that fail to
clearly meet all 3 AID elements. in those states that recognize it, the Dead man
statute is invoked, because since death has sealed the lips of the decedent it also
seals the lip of an interested person, concurring his observations of the decendents
conduct and the statements of the decedent overeheard by that interested person.
Whether a witness is interested is determined by whether that witness will directly
gain or loss from a judgement involving the decedents estate

Gift cause mortis - the same AID elements are required for a gift cause mortis, but a
GCM is a conditional gift made in fear of the donors impending death from an
existing sickness or peril. The donees interest in the gift is a mere expectation and
the gift doesnt vest until the donors from the contemplated peril or disease without
revoking the giftund…there can be no GCM of Realestate. A GCM is revoked 1. By
the donor at anytime before he died, if the donee predeceased the donor, if the donor
recovers and does not die from the contemplated peril, or 4 the donor dies from an
unexpeced sudden cause

Totten TRUST BANK ACCOUNTS - a bank account isn the depositors name, in trust
for another named person on the account whos interst in the account VEST only
when the depositor dies. Funds in the account belong entirely to the depostitor until
her died, she can deplete the account, close it, or revoke it at any time. If the
depositors estate can not pay all of the depositors debts, then the money in the trust
account is subject to the creditor CLAIM…UPC and restatement of trusts, stock
brokerage accounts can now be held in the owners name followed by the phrase
“PAY ON DEATH” or “TRANSFER ON DEATH” to a named beneficary, these accounts
are treated just like a TTrust

Joint bank accounts, in many states JBA as well as joint stock brokerage accounts,
A or B or the survivor raise a rebutabble presumption that the depositor intended an
immediate vested gift of 50% of each deposit, and that the balance remaining in that
account passes to the survivor when the other dies..in the other 23 states the UPC,
provides that during the other parties life time, a JBA is owned by each depositor in
porportion to the NET CONTRIBUTIONS of each depositor into the account, unless
there is clear evidence to the contrary (NJ, Connecticut ). In all 50 states, the
survivor of the account, takes all that remains in the account…A will CAN REVOKE A
TOTEN TRUST< but can revoke a JBA or stock brokerage account, because the
funds in these accounts pass to the surivor by operation of law. If the assets in the
decedents estates are insufficient to Pay estate creditor, then to the extend of the
decedents deposits into the joint account, those deposits are

Subject to the claims of the decedents creditors

INTESTATE SUCCESION - intestate statuary distribution of a decendent estate

occurs when 1. T had no will, 2. It was denied probate usually because of a SWUET
defect, 3. The will did not fully dispose of T entire estate and it lacked a residuary
clause or 4. The residuary bequest lapse. Generally intestate distributions favors a
decedent surviving spouse and children (include martial non martial or adapted
niggas), states can not attempt to exclude from intestacy non martial children since
it would violate EP rights and states don’t have a suffienctly important reason for
doing so. Under conflict of laws, to determine the validity of an intestate transfer of
personal property look to the intestacy laws of the decedents DOMICILE AT
DEATH!!! To determine intestate rights to the decedents real property, always look
to the intestacy law where the realty is located

Residuary clause in will or trust, indicates a strong intend that T property not pass
under the rules of intestacy. in most states where the residuary is left to 2 or more
people, or where the will doesnt have a residuary clause, but it just names 2 or more
people to inherit everything. All the rest, and residual of my estate to X & Y, and Y
predecease T, then Y share doesnt pass into intestacy but passes to the other co
residuary, this is the UPC and majority…at common law and some state, the residue
of a residuary rule is not recognize since it would alter T intent, because X 50 % is
increased to a 100% and in these states X gets her 50% share and the other 50%
passes into intestacy
Posumthmus genetic children - more than 20 states now provide inhereitance for
children concieved thru assisted reporudction technology

afeter a genetic parents death, a dead parent must of authorized someone, usually
striving spouse in a sign written, to use the egg or sperm to conceive a NEW
NIGGA..the wriiten authorizaition must of been execute no later than 7 years prior to
death, thus it must be updated every 7 years…the kid must be in uthero within 24
months of dependent death, and born with 33 months of the generic parents death

The testate and intestate estate, involve a death niggas assets that must first pas
thru the probate ct to be distrubuted, however they are many assets that do not have
to pass thru probate and on death pass directly to a beneficary PIT (decendents
dead benefits in a pension plan, life insurance policy n decedents life, and 3.
Testamentary substitutes aka WILL substitute. JAG TIP…just executing a will for the
testator is BLAH B- burial authorization L- a living will indicating T wishes for
medical treatment if T becomes incapacitated…A - durable power of attorney
appointing an agent to act if the prinicapal is incapacitated, in HALF THE STTAES in
order to be durable the POA must speficialky declare this power of attorney shall not
be effected or revoked by the subsequent mental disability of the principal. In the
other 25 states, power of attornye is implied, and not revoked by dudes mental
incipiency…H -health care proxy aka health care power of attorney appointing
someone to make medical decisions if the principal becoemes incapacitated.
******************************************

Decedents Digital accounts - under federal law service provider can not disclose
digital accounts and there contents without lawful consent under the revised
unfiorm fiduciary access to digital asset act, adopted in 42 states, an executor or
trustees assets or a guardian of someone incompetent access to online financial
social media or other accounts containing sensitive electronic information are
governed by a 3 step approach in the event of a users death or mental incapacity 1.
If the user of the account filed out an online tool, allowing the user to give directions
for disposing and disclosing for the contents of the account, then it prevails over
anything to the contrary, such as instructions within the decedents will, her trust or
a power of attorney. If the online user tool was not filed out then a provision in the
users will trust or power of attorney will control who and whether access is given in
that account. If nothing was provided by the decdent in 1or2 above, then look to the
general terms in the facebook or yahoo agreement and those terms generally provide
that upon the dude death or disabilty, the data content in that account is deleted

PROPER EXECUTUON OF A WILL- to be valid T must have the intent to make the
document her will and it must be SWEPT…a majority of states require strict
adherence to the swept procedures, non probate asset PIT don’t require
SWEPT!!!! And they pass far more assets than probate transfers. UBE JULY 2017…to
reduce the harshness of the strict adherence to swept in most states, where a will is
defectively executed, in only 12 states, they have adapted the harmless error rule
from the MPC and restatement. If there is clear and convincing evidence that T
intent it as his will , then even tho there isnt substantial compliance with swept
these 12 states will admit the will to probate. In most juris a will must be written
and SIGNED BY AN ADULT. Oral wills, with 2 witnesses are not recognized in the
VAST MAJORITY OF STATES, including UPC….WILL MUST BE SIGNED AT THE
END. But MPC allows a willto be signed anywhere on the will..in those states
requiring endofwill signature, any provision under the will signature, other than the
witness signature is INGNORED by the probate ct. even tho that provison was on the
will when it was signed. A 3rd person can sign for T, but must be at T direction and
in the testator LINE OF SIGHT PRESENCe, minority requires conscious presence

27 states recognize HOLOGRAPHIC WILLS, which are written in the eT handwritten

and signed at the end by the T, most states allow some type written parts on the will
as long as the material (IMPORTANT) parts are in T handwritten. The absence of an
ATESTATION clause, will not invalid a will, but its presence in a will creates a
rebuttable presumption of SWEPT compliance allowing the proponent of the will to
move for Summary judgment that the will was properly executed, thus shifting the
burden of production to the party alleging improper SWEPT to raise a genuine dispute
of a material fact on that issue. Likewise when an attorney overseas an T execution,
there arises a presumption of proper execution….T may sign the will 1. In the
presence of TWO WITNESSES, or ALONE PROVIDED HE LATER SHOWS HIS
SIGNATIRE AND ACKNOWLEDGES IT (THEY DONT HAVE TO SEE T SIGN THEWILL)
and the witnesses sign in T presences (WITNESS HAVE OT SIGN IN THE LINE OF
SIGHT OF THE T) where T and the 2 witness collectively sign together then the
exact order for signing doe not have to be followed, thus the witness can sign first
and then T (if only 1 witness sign, then comply with STRICT COMPLIANCE IWTH
SWEPT, majority…..but under harmless error rule, even tho swept hasn’t been, if they
can show T intent to make will, it will be probated)
Interested witness (juuy 2017) if a beneficiary named in a testator will is also a
necessary witness, the will is still valid, but the witness forfeits the BEQUEST

If at the time of the wills execution there were at least 2 other disintered witnesses,
who recieved nothing under the will, then the SUPER NUMERARY witness will not
loss her bequest, because her testimony is not necessary to establish the will. If 2 of
the 3, or all 3 were interest then all FORFEIT THERE BEQUESTS, because at the time
of executing the will, it was not witness by 2 people who recieved nothing under the
will

If nthe necessary interested wiuthness is also an intestate distribute who benefited

in there was no will or in some states, if a beneficary of prior will that was revoked
by the current will then bequest in the will that she witnessed is void only to the
extent it exceeds her intestate share or exceeds her bequest in prior
will !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

MISSSED BEGINING - UPC abloshes the interested witness rule by providing that an

interest qutness does not invalidate the will or any of its provisions therein

incorporation by reference - most states allow an EXISTING UNSIGNED DOCUMENT

that was not present when the will was SWEPT but was speficially refered to in the
will, becomes part of the will (I leave the contents on my house to those people I
listed last month on the yellow sheet, in my safe deposit box, most states
incorporate the existing yellow sheet into Twill, under this doctrine a properly
execute codicil can incorporate an unSWEPT deftly executed will.

Amending a will with a codicil (a codicil edits or supplements a will and republished
the will on the date the codicil was SWEPT (executed) a will and its codicil are
considered one document for determine testimentary intent. If properly executed a
codicil may revive an early swept will, that was expressly or impliedly revoked by a
subsequent will or 2. In a majority of states that recognize the doctrine of
incrorpation by reference, the codicl can incorpatea defectively executed will
Frevoking a will- a will can be revoked in 2 ways - in a subsequent will A. Expressly
or implie by inconsitntcy

revocation by a will, revokes all codocil to the will, u, but revocation of an earlier
codicil doesnt (invoke) the early will supplement???? ( by the testator destroying the
will, burning it, cutting it, cancelling the will, or oberliatering the entire will

A third person may destroy T will if in his presence and at his direction. T
handiwoiritten statement on T will, to change the will and call my lawyer to fix it,
shows a future intent to revoke but not a present intent. FRE admits oral or written
out of ct statements of memory or belief relating to the revocation execution or to
the terms of the will, these out of ct statements are not deemed hearsay. A bare
majority of states and UPC allow a will to be partially revoked by T unsigned
revocation of a sentence or paragraph, if the will was in T possession there is a
presumption T made the change, but this presumptio can be rebutted with
suffiencent contrary evidence. 2/3 states partial revocation by an act, in these states
such an alteration can only be done by a swept codicil or a 2nd swept will. Almost
all juris don’t allow words to be added to T will without re-executing the will. In
March T a widower with one son X, swept a will leaving everything to X and Y. In
April T met G (gf), and in may T duly executed another will leaving everything to G. In
June T died and in T safe was the made will (2nd) with lines drawn thru T signature.
The march will was also there….R- lines drawn thru T signature is a sufficent
physical ACT cancelling, to void the entire will. (MAY) thus will #2 was effectively
revoked. In most states this will not revive the earlier will naming X&Y, unless it was
evident from the circumstances of the revocation such as T handwriting on the back
of the May will (“I prefer my old march will”) only a few states recognize the revival
doctrine, in those states when T revoked the may will it revived the earlier march
will..however in most states were revival is not recognize, T died without a will, and
T estate passed to S in intestacy.

Lost will- in most states it is a felony to unlawfully conceal or destroy a will, with the
intent to defraud. If T will was last known to be in T possession but can nor be
located after T death, presumpition arises that T destroyed it, unless its absense
cabn be explained by clear and convincing evidence. To rebut the presumption and
admit lost will to probate show by clear and convincing evidence 1. It was duly
SWEPT 2. It probablyly wasn’t destroyed by the T 3. Establish it contents by A.
Testimony or 2 people who read the will, who usually are NOT THE 2 swept
witnesses B. An unexecuted copy of the will !!!
When a will was in T possession and when it was found it was revoked by a
physycical act, there is strong presumption that T revoked it. Forgein wills, what if a
will offered for probate was a holographic will executed outside the state which
does not recognize holographic wills. The Testate or intestate distribution of all of
the decedents personal PROPERTY wherever located is governed by the law where
the Decent was domiciled at death. HOWEVER, the distribution of real PROPERTY is
always governed by the law of the state where the realty is located, thus T will must
be offered for probate in overstate where T owned realty. T executed a will in state Z
leaving black acre located in state X to S son and white acre locate din State Y to D
daughter, to determine is T will was valid look to the law of state X for black acre
and the law of state Y for white acre, most probate codes provide that a will is valid
and admissible to probate in any state if validly executed according tot he law of
SWEED P (signed by T, in writing , and It is valid according to the laws of EDE (E
where it was Executed, D T domicile at Death , E T domicile when T execute d that
will, or P law where the will is offered for probate.

Contesting a wills validity - a will contest can calls an estates executor to go on a

DIET. A wills validly can be contested based on DIET, only an intestate distrubitee
who would benefit if there was no will or a beneficiary under a prior will who is know
adversely affected by the more recent will. The will offered for probate gives the
person contesting the will less than what she would have recieved under the old will,
or less than what she woulda recieved under the law of intestacy. There are 2 types
of fraud arising from T, relying on a material misrepresentation made with the intent
tot deceive the testator 1. Fraud in the inducement by a misrepresentation that T
intended beneficiary X was dead, convicted of a felony or had become an ISIS
terrorist in the middle, thus T did not name X in T will. Fraud in the content of a will,
where a page is replaced just before T signs the will….the ct can either EXCISE
(white out) the fraudulent provision or it can void the entire will. In most states the
burden of proof for the first 2 elements of diet is on the party asserting it. But the
proponent of the will(the one offering will for probate) has the burden of proving the
last 2 elements of diet.

Undue influence by a will beneficiary unfairly exerting psychological persausion on

the T to be named as a beneficiary in T will. It involves the misuse of a position of
trust and condifence, resulting in T making a bequest which if left alone T would not
have made. It must be shown that T was suspectible to UNDUE influence (OLD SICK
WEAK) the party asserting it had the opportunity to DO So (person exerting undue
influence). The person exerting the undue influence had the motive and inclination.
T will was executed favorably to the person accused of the undue influence. A Prima
facie case of undue influence where a beneficiary named in a will participated in the
preparation and or execution of T will
Ansernt a family rlationship a bequest in the will tp the attorney who drafted the will
raises a strong inference of undue influence, but this rule does not apply where the
ATTONRY IS NAMED AS THE EXECUTOR

Improper execution - lack of testimentary capacity. T must be at least 18 years old

and Be of sound mind so that without prompting T understand the extent of T estate
and knows the natural objects of her bounty.

Once a will or codicil has been valid executed, the following subsequent events may
effect distribution under T wills DAM CAR LAW - DIVORCE…most states have detault
statutes providing that if T is named in a judgement of divorce or allument in
automatically revokes a bequest to other spouse, and also named in a TRIP JAW
doc, on the theory that T would want that result …judgement of divorce of allotment
treats the spouses as immediately preceadesing the T (Totten Trust Bank,
Revocable Life Time trust, life insurance policy on T life, Pension plan if permitted by
federal law, jointly held reall property, joint bank accounts, or joint stock brokerage
accounts - to X or Y or survivor, it defeats the surviroship element and each former
spouse takes that asset 50/50….A power of attorney naming the former spouse to act
as a agent, Spouses will. R- any 3rd party who pays out to the former spouse is not
liable for paying the divorce surving spouse unless it recieved WRITTEN NOTICCE OF
THE DIVORCE JUDGMENT served by registered certified mail or notice was served
like a summons….prior to the divorce, can T change his life insurance policy that
name T spouse as a beneficiary, by naming a new beneficiary to the policy in T will…
NOOOO….a life insurance policy is a contract and all policies require a beneficiary
change with the insurance company!! This allows life insurance companies to make
prompt payment t beneficiaries without having to check T will

If a divorce or aNNULEMENT action is pending, then death of either spouse

automicaticlly extinguishes that action, such a dead (extinguish) defeats claim for
equitable distrubituon by the suvirving spouse may take under her spouses will or
any tTRIP JAW document, since no judgement of divorce or ANULLMENT was
entered….Query- how does a matrimonial decree effect the other spouses DIE
RIGHTS, D wrongful death claims of the former spouse, Intestacy rights, right of
election against the deceased former spouses estate..DIE rights are defeated by
DIVA, divorce of anullment judgment,I surviving spouse had earlier obtained an
invalid deivorce judgment outside the state as a sanction against the surving spouse
for doing so, the judgement would be recognize as valid for the purpose of defeating
the surviving spouses DIE RIGHTS…Party marriage was void requiring no judicial
decree, void marriages are either bigamous (already married married again)
insectious (mother) A- unjustified abandonment by the surviving spouse without the
other spouses consent which continued up until the time of her death (walked out
and dipped on the spouse)
a separation agreement, a nuptial agreement or prenuptial agreement has NO
EFFECT on a will or DIE RIGHTS unless precise language in that agreement provides
otherwise……

A- after born children, under Pre-terminate children statutes, overlooked children,

who are not mentioned in T will include marital, non martial, or adopted children who
where born or adopted after T executed a will. Where T had no children when she
executed the will, then pre-terminated children stature protect future children by
requiring T to specifically disinherit them, otherwise after born children may be able
to take a share of T estate. If T children are born after T executes a will there birth
may effect distribution under T will, if he had no children when he swept the will,
then absent contrary language in T will, an ABC is entitled to an intestate share of T
estate as a pre-termiment child unless T otherwise provided for that child with a
beneficial interst outside of T will….If T had children and provided for them in T will
the any ABC will share ratable with the ABC siblings total bequests unless T
otherwise provided for the ABC, during T life time

T will left 60k to S son, and 120k to D daughter. Thereafter X was born, upon T death
divide the total # of eligible children into the total bequest 180k and the ABC gets
1/3…Since D had 2/3 of the total bequest, she will contribute 2/3 of X share, 40k. S
the son, had only 1/3 of the total 180k bequest, thus he will contribute 1/3 (20k). S
gets 60k, S40, D 40?????????

You can disinherit kids by not namingg them or specifically disinheriting them

If T had children when T executed a will, they may either be expressly disinterred in
the will or simply not mention in the will , if a nigga is born thereafter, the ABC is not
entitled to anything (presumption, if I left my own alive kids nah, then the ABC gets
NADA, fuck that lil nigga)

A few states have adapted the UPC that were T leaves substantially or all of T
assets to the ABC other parent, then the defeats the ABC rights ….non martial
children - a non martial children is entitled to inherit (thru intestacy, testimentary
class bequest (to T children) under the anti-lapse statute or D. As an ABC if born
after his parents earlier executed a will. A non marital child can inherit from 1. Birth
mother and her heirs, 2 biological daddy and parternal heirs but only if his father 1.
Acknowledge partnering by either having his name placed in the child birth
certificatee or 2. In about half of the states in the PUTATIVE father registry where
males can register they are biological fathers of an out of wedlock child. Or ct order
of paternity (sup ct has upheld a law requiring a ct adjudication of paternity within 1
year of the Childs birth or before daddy death, but most states now allow a paternity
adjudication after daddy dead.

N a ct proceeding partnering must be extablish by clear and convincing evidence,

which may include DNA testing, where the fathether open and notoriously
acknowledge the child as his own…

MARRIAGE—if the decedent was married at the time of death, the surving spouse
CANNOT BE DISINHERTED, most states give a surviving spouses 1. Homestead
exemption free from T creditors to T surviving spouse or T minor children 2. Exempt
family property 3. Estate allowance, until the estate is distributed and 4. A surving
spouses right of election.????????????????????????

Surviving spouses right of election, R- T heterosexual or homo surviving spouses has

the right to elect the greater of 50k or a fraction of T net estate consisting of T
property located inside or outside T state of domicile , but less debts, and
administrative expensees to be paid by T estate. R- a spouse may waive right of
election in an NSP agreement (separation agreement, prenuptial agreement, or
nuptial agreement) 16 states limit the survey spouse to a 1/3 or 1/2 fraction of the
decedents net probate estate which is not augmented by testimentary substitutes.
JAG TIP….9 states recognize a community property law, where each spouse gets a
vested 50% of all martial property acquired during the marriage regardless of who
holds to that property. In these states there is no right of election, when H died H
had 700$ of martial property In his name and W and 300$ of martial property in her
name. The ct will combine those 2 assets and split it equally 50/50. H estate will pay
W 200 leaving them both with 500$ of martial property…

in the other 25 states the decendents net estate either is net testate or intestate
estate is then increased (augmented) by the value of any non probate assets passing
at T death to anyone including those passing tot he surving spouse. ??????????

JAG TIP J- post marriage joint held bank accounts, stock brokerage accounts,
personal property, 4 US savings bonds, but only to the extent the consideration was
furnished by the decdent. Most states hold that joint tenancies of real property are
not considered testimentary substitutes. A- stock brokerage accounts or real
property deeds (payable on DEATH) G- Gifts cause mortis, T- thotten trust bank
account, revocable lifetime trust. In many of the 16 states that do not augment T net
estate with testimentary substitutes, they allow the surving spouse to elect against
such trusts under the ILLUSORY transfer doctrine, or the FRAUDULENT TRANSFER
DOCTRINE since these transfers are not really surrendered fro T control and it
fraduulent dfeat the surving spous right of election…Inter Vios GIFT exceeding 15K,
if made within ONE (UPC) or 2 years prior to death (many states)!!!!!!!!!!!!!!!!!!!!!!!!!!

Assets in trust in which. Decendent during her lifetime held a general power of
appointment to appoint the trust property to anyone. In all states life insurance
policies on T life are not testimentary substitutes and are not added into T net estate
for determining the surving spouse right of election.

In the 25 states that augment the net estate with JAG TIP tetsimnetary substitutes,
first take the net probate estate and then ADD all testimentary substitutes including
any passing to the surviving spouse then in most states divide that total figure by 1/3
to give the surving spouses elective share, then subtract from tha amount the value
of any testimentary substitute that passed to the surving spouse ..the resulting
figure is her net elective share to which the other recipients to T estate and T
testimentary substitutes will contribute proportionately. Example T had a net
probate estate of 900 leaving everything to B brother, T also had a 300k trust
account to Y. T will left nothing to his surviving spouse. She is entitled to 1/3 of 1.2
million (400k). Y would contribute 100k to this amount, because Y 300k TT consisted
of 25% of the surving supposes electable estate, $1.2 million thus Y contributes
ratable 25% (100K) toward the surviving spouses 400k right of election and B would
contribute 75% (300K0 of that amount, because B share 900K was 75% of the total
electable estate. ??????????????????

INTERUM CLAUSES AKA NO CONTEST CLAUSE - a no contest clause in a will or trust

expressly provide for forfeiture if a beneficiary unsuccessfully contest the validity
of the document or any of its provisions. In 22 states, the NCC will NOT BE
ENFORCED if the one making the challenge had probable cause for doing SO…some
states prohibits NCC and most states do not like em but will enforce them, cts
narrowly construe the word contest to require taking the will contest to TRIAL, an
NCC is not breached by I FACE SIR…(I infants can always contest of trust, F-
litigation establish will as forgery if based on probable CAUSE, A demanding an
accouting or questioning the conduct of a fiduciary, C construction proceeding
asking the probate judge to assertain T intent!!!!!.

Conditional legac frequently are the construction of proceedings

Surving spouse can always exercise a right of election without violating the no
contest clause!!!!

Objection to the probate cts subject matter jurisdiction over T will….I mental
incapacity personn for whom a guardian was asserted can always contest a will
without violating the NCC…R will offered for probate was revoked by a later will if
based on probable cause. If a beneficiary forfeits her bequest for violating NCC< she
is immediate treated as predeceased the testator, however absent express language
to the contrary in the NCC if the person contesting the will validlity was T issue or T
sibling, then HER CHILDREN WILL GET THE BEQUEST, under the anti-lapse statute!!!

(FINISH)

In the absence of a Gift-over provision the SY PRE doctrine (as near as) will be used
by the probate ct to sustain a general charitable bequest in T will or in T trust, it
prevents it from lapsing if the name charity no longer exist…..Advancements of an
intestate share or a gift in satisfaction of a will bequest during T will time. In most
states lifetime gifts are presumed to be AID gifts, and do not decrease the donees
intestate or testate share of the donors estate. A valid inter vios advancement of an
intestate share or an inter vios gift in satisfaction of a testimentary bequest must be
documented in written executed contemporaneously by the donor or donee
evidencing such an intent. The UPC states that the donee signed writing does not
have to be contemporareous////Almost all states agree, That there can not be an oral
advacement or oral satisfaction ( a donor signing 3 weeks later, no good!)

R- a valid testate satisfaction or a valid intestate advancement will be extinguished

if a new will or codicil is executed because the terms of he new document control,
and the inter vios gifts will no longer be considered…MAD CAR R- Renuncation, also
known as a disclaimer, renunciation allows a surviving beneficiary of a JAG TIP or
TRIP JAW document including all testimentary substitutes life insurance policies a
life estate or intestate share to decline ALL OR part of it. A sign renunciation must
be filed with a probate ct within 9 months from the date of death, and once filed it is
irrevocable …the renouncing part is treated as if she died immediately before the
testator (I DROPS) R- the renuncation of a life estate immediately accelerates the
remainder interests….Lapsed legacy- if the beneficiary of a willl predeceased T, then
the bequest fails and it lapses back into T estate…a beneficiary designation in any
TRIP JAW doc will not be given affect (it will lapse) if that beneficiary uses I DROP (a
will beneficiary breach an interim clause in the WILL, which forfets that bequest in a
will, but it does not forfeit any other beneficial interst in other trip JAW docs. D
beneficiary was divorce by the T or marriage annulled by the ct. R. Beneficiary
renuounced that interest in a TRIP JAW DOC within 9 months of T death/….under the
uniform SIMULATEONIUS death - if a testate or intestate beneficiary does not
survive T by 120 hrs (5 days) then T will, intestate estate, or other trip JAW DOC are
distributed as if the name beneficiary predeceased the testator…the UPC does not
applytthe 120 hr requirement to joint tenancy in realty! But many states nevertheless
apply it! P- beneficiary predecease the Testator, S - beneficiary KILLS the testator …
R- in 1-6 above (I DROPS) the beneficiary is deemed to have immediately predecease
the testator and the bequest lapses…an exemptions ot this last legacy rule is the
ANTI lapse statute involving bequests in T will to T issue or siblings ALL IS. Here the
bequest does not lapse into T estate but its drops directly down to the issue of the
predeceased beneficiary…anti lapse benefits ISSSSSUE OF DECEDENT. The anti
lapse prevails over the residuary of residuary rule, passing a potential lapse
residuary to the co-residuary, thus if the residuary bequest was to X&Y and X
predecease T, but X was T issue or sibling who left issue. Then X 50% goes to X
issue and not to Y the co-residuary

The Anti-lapse statute can be defeated by specific contrary language in T will…inn

41 states, anti-lapse statues applies only to WILLS, but not other trip jaw docs

Estate distribution, under the anti lapse stat, as Weill as for intestate distribution

In her will T a widow left everything equally to her 3 kids, AB&C (this hypo would
equally apply if he died interstate) when T died 1. Child A survivor T with 4 children,
LMN&O 2. Child B predeceased T leaving one son S,,,,child C predeceased T leaving
a spouse and 3 children XYZ (under the old common law per stripes distibution and
only a few states today surving child A got 1/3, grandchild S got 1/3 (what his parent
woulda recieved) and grandchildren XYZ would split the 1/3 share that there parent C
woulda recieved (1/9 each), however, with distrubution by representation nNOW used
in most states for wills and intestate distribution surving child A gets 1/3, but B&C
shares are combined and divided equally into 4 parts by representation amongst the
grandchildren generation, Thus T grandchild SXYZ get 1/6 each. Today in the vast
majority of juris, per Stripes distortion is used only if T will specially requests it

ADEMPTION by extinction - rule a Specific dispostion is T bequest of a speficially

identified item of T property. (A piscasoo painting, Tiffany lamp, black acre or a
diamond ring) if the property speficially described in T will has been lost, destroyed,
stolen, or conveyed away. AID gift or sale at the time of T death, then that bequest
ADEMPS, and the beneficiary doesnt receive the bequest or its valuee. Most states
apply the rigid common law identity theory of ademption where the beneficiary gets
nothing if the exact piece of property is no longer in T estate. A minority of states
adapt an intent theory where the bequest will not fail if there is clear evidence that it
would be inconsistent with T intent. This allows T executor of T estate to trace the
funds if the item was sold or traded in for a similar item…the UPC limits the strict
common law rule of ademption with the doctrine of replacement property, which is
based on T intent. Here any realty of chattel on T death that was acquired as
replacement property from a spefici bequest does not admen, but passes to the
name beneficiary (MINORITY) (majority if the exact item is there, it ADEMS)
(MINORITY YOU CAN TRACE THE FUNDS, MAJOIRTY NAH YOUR FUCKED)

If the lost stolen or destroyed property was destroyed and the insured proceeds have
not yet been paid at T death then the spefic legatee recieves those proceeds…in
many juris where T will made a spefici bequest, but T subsequently became
incompetent, then if G a guardian appointed for T or someone named in a durable
power of attorney placed T in a nursing home and sold black acre to pay for the
nursing home then when T dies X is entitled to receive any of the remaining
proceeds from that sale

Ademption does not apply to general legacies (summa of money) or demonstrative

legacy, which are bequest of money from an identifiable source, (20k of my IBM
stock or 20K from my Citi bank account. If At T death most of the IBM stocks have
been sold or citi bank closed or depleted then the bequest are nevertheless paid
from the estate because the bequest was a demonstrative legacy which do not
adeem.

Ababtement occurs when T makes to many general bequests, which when added
together exceed T net estate available for distrubution. Abatement is the method
applied when the are insufficient estate assets to pay all of T bequests after T
estates pays off debts and administrative expenses

Felonious, reckless or intentional (principal first degree or accomplice or co-

conspirartor) then apply I DROPS and forfeit the killers trip JAW benefits, rule a
person may not profit from his own wrongdoing and acquire property by his criminal
conduct. A criminal conviction is not required, just PERPONDERANCE OF THE
EVIDENCE (SOME REQUIRE CLEAR AND CONVICNIG ) jointly held real property
between killer and victim is distributed as if they were tenants in common. A slayer
does not forfeit if the homocide was committed in SIN (self defense, insane,
accidental negligent homocide
FAMILY LAW

State cts can dissolve spouses marital status with just IN REM jurisdictions, the
parties martial status is located where either spouse is validly domiciled, all states
must recognize and give full faith In credit to an in rem sister state decree provided
MOP is satisfied, but that decree is subject to the divisible divorce doctrine if there
is no personal jurisdiction (CHILLI & DADA) minimum contacts over the D spouse. in
order for a state ct to effect vested marital property rights, such as alimony, child
support or equitable disturution of marital property, the ct must also have PERSONAL
JURIS over the defendant’s….

common law marriages FEB 2017, CLM are simply oral K between two parties
entered into in one of the 11 CLM states to presently become spouses and to be
bond by the resulting marital obligation without any need of a marriage license. This
occurs when 2 parties agree to marry, and they appear to be married in there
community. Continuous Co-habitiation, reptation, documentation, and holding each
other out as spouses are probative circumstantial evidence of a CLM. Under the full
faith and credit clause of the consittution states must honor CLM contracts if it was
valid in the state where it was contracted.

MAtromonial agreements- they are 3 types of SPM agreements (S separation

agreements, P prenuptial agreement, N nuptial agreement. A separation agreement
is a contract signed by both spouses after they have negiotiated and agreed to all of
its terms. It is a conditional contract (condition precedent and subsequent,
conditioned on the spouses living separate and apart. It remains enforceable until 1
or 2, 1. It merges into a divorce judgment 2. The parties reunited with the intent to
fully resume marital relationship (INTENT!!!!!!!!)

A prenuptial is enter prior to the marriage and nuptial agreements are entered during
the marriage

All 3 types of SPM agreements address issues involving children as well as the
economic issues of the marriage, it can equitable divide martial property and provide
for alimony and child support as well as child custody and child visitation but cts are
not bound to the agreement terms INVOLVING CHILDREN …the Non moneyed spouse
should ALWSY be provided with separate counsel and the financial discosure by the
money spouse is essential
Prenuptial agreements are enforceable, unless the spouse opposing it can show it
was involuntarily signed (1. on the eve of the marriage 2. There was in adequate
financial disclosure, unless that disclosure was expressly waived, or she was well
aware of the other spouses assets, or 3 the agreement was unconsicable) some
states deermine this issue as of the date the agreement was signed, but many other
states look to the time of its enforcement and whether because of changed
circumstances its terms would now be unconsciobly unfair. States differ on the
weighted given to each of the 3 factors above, under the Uniform Premartial
agreement act (27 states) cts can refuse to enforce a pre nuptial agreement on the
basis of unconscioability oNLY if it finds 2 & 3 above…Rule a prenup under the
Uniform acts creates a rebuttable presumption of a parties informed consent if 1 the
agreement was executed at least 30 days prior to marriage, 2. Both spouses had
consul or were urged to obtain consul 3. If one spouse didn’t have an attorney, then
the agreements language was clear and she was advised of her right to have an
attorney. In addition, she was advised of those adverse provisions in the agreement
so that she signed the agreement knowingly!

If after waiving finacial rights in a SPN- a former spouses becomes incapable of

support and is likely to become a public charge, then cts In many states can
nevertheless order the moneyed spouse to pay alimony, that obligation is NEVER
OVER until the former spouse remarries or DIES

Grounds for divorce ! RULE grounds for divorce in many states - A PAIN but many
states have adapted solely a nO FAULT GROUND. In matrimonial actions, broad
pretrial finacial disclosure is necessary to establish the amounts for child support ,
alimony or equitable distrubution of marital property. Usually each spouse must
submit a detailed Net work statement under OATH

For a state ct to have general all purpose juris, the D must consent to juris/ be served
inside the state/ be at HOME - defendant Is domiciled in that state

ADULTERY (29 states) is a spouses voluntary sexual act with someone other than a
spouse, usually they are 4 statutory or common law defense ti Adultery which are
CRAP (condonation - express forgiveness or 2 implied forgiveness by cohabiting and
resuming the martial relationship where the P knew of the adultery
P- prison, most states that still allow fault grounds treat a spouses conviction and
imprisonment as a volunary abadndomenet of the other spouse…several states list
imprisoment as a separate divorce group, if the incaerceation continues for 1,2,3
years

A- abdondment/ dissection, element for abandoment (IOU) D left with the intent not
to return, it continued for 6 months in some states, but most state require 1 year or
more…U, D aboundment was unjustified and without P consent..some states
recognize constructive abandonment where 1 spouses doesnt leave but repeatedly
and unjustifiable ceases to have sex with the other spouse for 1 continuous year or
more

Cruel and inhuman treatment - misconduct by a D that so endangered the P mental or

physical well-being, rendering it IOU improper or unsafe to continue to cohabit with
the other spouses, ct have broad discretion in deciding this issue (may constitute
one slap, verbal abuse coupled with alcohol abuse, or a spouse boasting about extra
martial sex…if physical abuse is involved, a P may also seek a ct order of protection
(STAY AWAY order)), under the faith in credit clause an order of protection issues by
one state should be given full faith in credit to any state where the victim moves…2.
Seek exclusive occupancycy of the martial home pending the final divorce
judgement..

Supplement the complaint and add an intentional tort, battery or assault which in
many states can even be asserted afte tje divorce judgment, in a subsequent
separate action (exemption ro res judicator)

No fault divorce - under the uniform marriag and divorce act. Attached to the
complaint an affidavit that the marriage has broken down irretrievably for anywhere
between 6 months to 2 years depending on the state 2.. or there exist serious
marital discomfit (abandonment, etc)

Anullment adress voidable marriage which are distinguable from void marriages,
anullmennt judgement is simply the ct resiccion of the martial K. They do not look at
a spouses behavoir during the marriage, but focus on the spouses status on the
marriage date (grounds are infancy, physical or mental incapacity on the marriage
date, fraud in enter the marriage K, or duress…
Infant spouses - in a majority of states, a child age 16 or 17 needs written consent
from both parents or a parent having legal custody..14 or 15 need ct approval,
marriage of a child age 14 or in some states 13 is void at the outset. As of June 2018
in NY the marriage of a child under 17 is void. Even if an udner age marriage was
legally approved it may be annulled by the infant, a parent, or friend of the ct
(teacher, guidance counsel) but not by the adult who married the infant.After
reaching age 18 the infant waives her anullment claim if she continues to cohabit
with the spouse

Mental incapacity at the inception of the marriage, render thats spouse incapable of
consenting to the marriage K…physycical incapacity arises when a spouse is
physically incapable of intercourse. If the physical incapable didnt arise at the time
of the marriage it is not grounds for an anullment

Fraud annulments - if a spouses spouse to the consent to the marriage was based on
SIR M fraud, the marriage is voidable, 1 spouses fraudulent representation must
obtain a material inducement for the P entering the K and it was reasonable relied
upon by the P…in most states a fraud annulment will not be granted if at anytime
before commencement of the action the parties voluntarily co-habited with the P full
knowledge of the fraud..child custody, in contested custody cases many cts appoint
Ann attorney for the children to protect the nigglets interest and to express there
wishes to the ct…the standard use by most ct to determine which parent gets
custody is BEST INTEREST OF THE CHILD, all states recognize joint custody which
can be either 1, joint legal custody where both parents share decision making for
there child or 2. Joint physical custody where the child lives in the homes of each
parent…VIsitiation rights are usually outlined in a separation agreement or divorce
judgment, vistationnn rights by the non custodial parent is a constitutional right
because BIC is further by a child being nurtured and guided by both parents….the ALI
now favors the approximation standard over the BIC standard, it based on the
amount of time each parent previously spent with the child before the divorced, it is
favored because of the predictability and stability and it limits a cts role in changing
the existing family dynamic. If a custodial parent wrongful interfere at
pychologically (parental alienation) or physical with visitation right, then the cr as a
punish may suspend alimony or child support payment, or cancel alimony
arrears????????????????????????????????????????. But udner federal regulation
can not cancel child support arrears. In a motion seeking initial child custody or
seeking a change in custody based on a substantial change in circumstances the ct
considers the following factors (DAD FLIPS) no single factor is controlling . D desires
of the children (old enough), the parents avaablity and ability to bring up the child. D-
prior instance of domestic violence, must be establish by PROPERANDANCE OF THE
EVIDENCE…F- financial ability of each parent, L- lifestyle of each parent and it
possible adverse effect of the child…I- how the inthrall custody agreement was
raised, that is there a full hearing an issue of BIC, or was it on the consent of the
noncustodial parent….Uniform marriage or divorce act provides a 2 year waiting
period before the noncustodial parent can petition for a change in custody unless
there is lclear evidence of a danger to the children…who has saved as the Childs
primary care taker….S - siblings should not be separated. (no single controling facor)
in all 50 states the unform child custody juris act has been adopted giving unform
recognition to sister state child custody judgments, it restricts a state from changing
a child custody judgment from another state, and seeks to prevent child snatching
by a non custodial parents (now a felony in most states) and removing the child to
another state hoping for a more favorable judicial ruling on the custody issue. Altho
custody jugmenets are never Res Judicata the unform act invokes a clean hands
doctrine, a concept of forum non convience, and it impose quasi full faith in credit on
sister state child custody decrees. The home state of the child is where the child
has resided for the prior 6 conecutive months with a parent. The home has original
continuing child custody subject matter jurisdiction except in emergency situations
(child abuse) (R- if there is no child custody award then it is the state ct where the
child has reside with the parent for 6 consecutive months) if the child and both
parents no longer reside in the home state then it no longer has jurisdiction . Where
there is no existing child custody judgement or where there is an exisiting order or
judgment but that state is no longer the home state because both parents and the
child have moved away then another state court may exercise child custody subject
matteer jruisdiction if the child and one parent have suffience conntection with the
state, and there is substantial evidence innt aht state concering the childs care,
education, and parental relationship

If a state order of custodyy (ny orders the moth to have custody of the chkld, Dad
goes to Delaware, Delaware will say where has the child been living ?? NY?? Oh send
the case back to NY…UNIFORM ROOM, if the child and both parents move out of NY,
Ny is no lonnger the home state, then look where the child and parent have been
living

Cts have broad discretion to grant a geophraphic relaocation ot the custodial

parents and child even tho it would adversely affect the visitation rights of the
noncustodial parents, where the ct consider the factors of HER SOB (health related
concerns, Economic necessity for the move, 3 impact on the existing relationship
between the child and the noncustodial parent and the possibility of a similar move
by the noncustodial parent. S- demands of a 2nd marriage O- non custodial parent
good faith reason for oppposing the move (qaulity of quantity of exisiting) rights
which geograohic location is best to serve BIC

On the issue of child custody between a biological parent and a 3rd parent (grand
parent) step parent or an aunt, it is the biological parent who is entitled custody and
BIC is not even cosidered by the ct, UNLESS there is Clear and convincing evidence
of the biological parents unfitness (MA PA)…some states give grandparents and
siblings standing SCRAM to seek visitation where one parent dies, cts look at the
previous nature and length of there relationship with the child and the reason for the
biological parents objection to that visitation…Cts must give special weight and be
mindful of. Parents substantive due process right BAD COPS or a parents liberty
interests considering the care custody and control of the child, which is
presumptively bIC, BUT THAT PREsumption can be rebuted

W a single parent based her kids in. Foster home of L&M, after a year L&M sot to
adapted, since W vistited one amonthm and cold were afforded full benefits on L&M
they indicared to the ct a preference for L&M….R- unlike where 2 parents are fighting
for custody where the standard is BIC in a preceding to terminate parential rights,
the burden of proof is on the terminator to show MA &PA by clear and convicing
evidence which is a due process requirement and in half the states W has the right
to consul if she is an indigent ….MA*PA (Mental illness, sztofrenia, or retardation of a
parent…A abandoment of the child by the parent failing to contact the child (no
communication or visitation ) for 6 - 12 months depending on the state or P
premanment neglect of the child, where the parent is a hopeless drug addict, or A
abuse of tje child (severly or repeadetly, physically or psychologically

38 states have adapted the unform adult guardianship act, to prevent Granny
snatching by family members who dispute a guardians custody over an adult family
and who attemptpt to take the patient out of the state for a new guardianship
appointment …the home state is where she has lived most of her life, unless she
moved from her home state and resided in a new state for at least 6 months when
the ct application is made

Child support - both parents are responsible for child support until the childs 18
birthday, but ina minority of states until the childs 21 birthday, under federal law all
child support and alimony, must be made retroactive to the date the demand was
first served on the D. Summons and complaint, the final divorce judgement fixes the
amount of permanent child support from the date the action was commenced then
reduces that total amount by any temporary child support or temporary alimony that
was paid by the D while the action was pending. A ct can not for any reason cancel
or reduce child support arrears, but it may for good cause cancel or reduce
ALIMONEY arrears. Ru- where a party claims little or no incomes, then ct may impute
income to a party based on A. Past earnings, earning potential (degrees) or where.
Parties financial calculations are simply not credible or suspect. Congress thru its
spending power mandate that al states must adapt formulas for child support, the
most popular formula adopted is the COMBINED INCOME formula with a percentage
based on the # of children to support. One child 17% of combined income, 2 children
25%, the child support amount is then pro rated amongst the parents, based on their
percentage of the total combined income. Thus were parent 1 earned 15k per month
and parent 2 earned 5k per month, then parent #1 pays 3/4 of child support adnd
parent 2 pays 1/4.

Where parents have joint custody and physical custody is shared then it is the parent
who has physically custody of the child for majority of the year (188) , who is entitled
to recieved child support parents from the other parent …modification of child
support payments, under Fed law child support payments from a ct order or
judgement are automatically modified prospectively going forward, upward or
downward. 1. Every 4 years after the order was entered or was last modified B.
Based on an increase or decrease of 10% or more of either parties gross income,
siince the order was last entered or adjusted or 3. A substantial change in the
financial needs of the child..a parents loss of employment is not considered a
substantial change in income (none of the above) without evidence of GOOD FAITH
effort to find similar employment. States differ on whether incareation is. a basis to
modify payments under #3 above

Modification of a sister state child support award under rthe unform interstate family
support act…usually a ct lacks subject matter juris to modified a child support
judgement from another state, under federal law the ct issue the child support (or
alimony) judgement or order is given contineuing EXCLUSIVE SMJ to modify it, the
issuing state X continues to have exclusive subject matter juris unless A or B.
Unless Both parties consent to another state having juris, and file the consent in the
ct that originally issued the other or 2/ non of the parties or the child conutied to
reside in the issuing state X, and the proceeding to modify or enforce the support
order must be commenced in the state where the ct has personal juris over the D.
Thus the party seeking the modification must go ot the other spouses home ct

The partnerity by estoppel doctrine applies to 1. an absent biological father who

because of his neglects estopped Fromm claiming paternity or a non biological
father who is estopped from deny paternity after previously claiming or acqueiesing
in theat paternal satus , here the ct concern is BIC..paternity ivy estoppel is also
used when same sex couple agree to have a child, and mutual agree to raise the hild,
and thth child recognize the nonbiological parent as a momor dad then the estoppel
doctrine is invoked

Rrule - alimony is awarded in a matrimonial judgment, ordefinte or indefinite periodd

of time (3 years) byut it shall terminate on the death or either parent or on the
recipients valid or invalid marriage, or on the recipient reaching age 65 (most states)
where she will receive social security payment …enforcing the terms of a
matrimonuial judgement or separation agreement, altho a matrimonial judgement
may be enforced or modified with a speed of a motion, the enforcement of an NSP
agreement tat has not merged into the matrimonial judgement requires the
commencement of a breach of contract option which is much slower than a simple
motion, in addtion a spouse seeking to enforece a ct order or judgment has WCESPIN
enforcement provisions - W wage deduction order, an order or judgement of alimony
of support in arrears of 3 missed PAYMENTS or where the arrears totaled a full
month of mispayments then a wage deduction order can be issued by an attorney, ct
clerk or family support collection unit. This order can be served by mail or like a
summons on the debtor spouse, if there is no response then it is served on the
employees! C- contempt of ct, where the spouse is able to make the payments but is
unwilling and cts can incaerate for contempt of ct the unwilling spouse (WILLFULLY
REFUSE TO PAY), B the willfully defaulting spouse can be order to post a bond as
security for future payments…S- suspend any government issued license if child
support is in ARREARS for 4 month or more …S sequestration allowing a ct to seize
and less the spouses assets to satisfy child support or alimony arrears…where child
support is being paid to a state family support collection unit, then PIN is also
available, where child support arrears exceed 2500, then passport revocation or
denial by the US government

I0 federal and state income state refunds can be intercepted to satisfy child support
arrears….I- financial institution data match allowing the support collection unit to
automatically connect (collect) and match social sec # with any bank and then seize
those funds to satisfy the arrears …N- all states must report newly hired employees
social security #, which is then entered into a state and national directory available
to all states child collection agency

Equitable distribution - ED recogizes the marriage as uneconomic paternship and It

recognizes the direct and indirect contributions of a spouse who stayed at home and
was not employed. ED does not necessarily mean equal distribution, It means fair
distribution of martial property. Several states provide equal distribution non divorce
but only for marriages of Long duration….Marital property is property acquired by
either souse from the date of the marriage up to the date of the judgment but in
some states it is up tot eh commence of the matriomonial action, or when the
spouses sign a separation agreement which marks the end of the economic
partnership. Ct equitably distribute marital property regardless of who has title
including 1. A winning lottery ticket 2.spouses business 3. All real or person property
acquired during marriage 4. Personal injury awards, which can be distrubted in 2
ways, most states that the analytic approac, seperating the award into 2 parts, 1
part that reimburse a spouse for lost wages during the marriage plus any medicinal
bills paid from marital funds are considered marital property but not that part of the
award that pays a spouse for PAIN AND SUFFERING which is considered separate
property….other states take a literal approach that if the injury occured during the
marital, then the entire award is martial property….vesed or non vested pension
rights to the etxtent a spouse accurd those benefits from date of marriage t the
end…Ct have broad discretion in valuing martial property, passive investment whos
value depends on market conditions (shares of stock, real property, price of gold)
typically are valued at the time of the divorce. Active investmentn who value
depends on spouses labor, frequently are valued at time the action commenced…ED
doesnt apply to PIGS separate property owned by one spouse. P assets acquired
prior to the marriage, property inherited during marriage, gifts during the marriage
from someone other than the spouse. S property purchased during the marriage but
paid for with the spouses separate property!!!! if seperate proerty appreciates during
the marriage due in partof to the effort of the spouse the value of that appreciation
value is martital property. Passive appreicate of market property based soley on
market forces is not considered marital property (gold, stock market, vacant land,
we don’t do anything, that passive appreciate is seperate property)) once seperate
property is commingled with marital property it usually becomes marital property,
but the contributing spouse gets a credit for the value of the separate property
contributed (FL 15 16)…if seperate property is used to pay off a mmortage on the
marital hoome, then the spouse contrubiting that money is entitled a 200K credit

In equitably distributing martial property cts consider the HIP PAID CEAT factors (feb
2016 2018) marital fault in about half of the states is a factor isn awarding ALIMONY,
in 29 states fault is not a factor in award ED…martial debts usually are allocated in
the same percentages as martial property is allocated…R- in 31 states, wasteful
spending for purposes unrelated to the marriage, at a time when the marriage broken
down irreparably is nevertheless deemed part of the Pot for equitable distribution
purposes
TORT- defamation is made up of the twin torts of liable and slander, it is a false
attack on the P character and reputation thru a D fault, negligence recklessness or
internationally making a false statement of fault published to a 3rd party which holds
the plaintiff up to ridicule contempt hatred or disgrace. This tort cant be committed
by someone who is DEAD (except in 3 states) Federal exempts an internet host from
defamation claims since it can not be treated as a publisher, thus someone defamed
on the internet can sue the person who posted the false statement , but not the
internet provider. Under the good Samaritan undert this Fed law, the internett
provider acting as a good Samaritan can not be sued for removing obscene filty
violent, fake news or a harassing posting, even if the postings where protected by
the 1st…QUERY - what if the D falsey said P stole 1000s from his former employer
but it turns out he only stole 500 (if the statement is substantially true, there is no
defamation claim since the statement generated no more ridicule or contempt in the
listeners mind than the truth would have generated…what about President trumps
tweets about a reporter (major loser, zero credibility, and dumb) this is hyperbole
(and not a statement of fact) thus no defamation. Defamtory statements do not
impose strict tort liability, instead the P must prove some fault by the D amounting to
at least negligence. Thus the defamationatory statement must have been
intentionally recklessly or at least neg communicated to a 3rd party. A 3rd person
who hears or reads the defamorty statement does not have to believe it is TRUE,
someone who repeats the defamation is as liable as the original defamatory
declarant even if the person repeating it does not believe the statement was truuu..

Is T defamation statement privileged if in a will= NO, no such privelege

Liable is a false, unprivileged publication of a statement of fact in a writing email

internet or picture, proving liable damages is easier than for slander, because the
defamotry consequences f bible are more sever, when defamation is put into print, it
is preserved for a longer period of time, thus economoic doent have to be
established they are presumed….

Slander is addressed to the ear, whereas liable is addressed to the EYE, to establish
a slander claim an economic law must be specifically pleaded and proven however
slander per se involves Zststatement that are so patently damaging that they are
treated like liable where special damages are presumed and an economics lose
doesnt have to be pleaded or proven….CLAMS C - falsely accusing the P of
committing. Serious crime, L - false statement that the P has a current not former,
communicable loathsome disease (STDS) (in most states have to proven damages
but not in per se)…A false stateemnt that specifically reflects adversely on the P
ability inn his Trade profession or business (HAS TO GO DIRECTLY TO TPB)M- falsely
accusing the P of moral turnpidute (fraud, dishonesty or theft) (cheating on an exam
or plaagarism)

S- false statement of serious sexual misconduct

If

Cea
Quit claim deed and after acquiring

Where a private company builtn and ran a town, owned all the houses, built school,
maintained rds. This is a state function, must comply with the constitution

Running a municipal park or fire department. The public function did not apply to a
private shopping center or 2 utlitly. Since these functions are not run by the state

Where a states involvkent with private discrimination is only financial (state grant in
aid to private actors, then something additional must be shown to constitute state
actionprocedual process cause applies to and restructrs the federal govt, and the
due procress applies to and restrictd states and municipalities, it requires that state
action may not abitrarily or unfairly take away a persons life liberty or poperty
interest without first affording him due process of law…procedural due process,
refers to the procedure the govt must follow before it deprives a person of these
rights, there is no PDP unless the govt is taking an interst away if a….if a personal is
abritrationly rejected when apply to obtain the property or liberty interst, such as
govt employment, govt houseing or govt loan, then the constitutional chanllege is
not PDP but it may be EP or P&I….there is no due process property right to possible
future govt benefits because PDP only applies to beneifts ththat have already been
acquired which arebeing taken away by the govtrocedure that is unfair!!
R- immigrates facing deportation face a loss of liberty thus due process requires
notice and a hearing, but because congress has express power over immigration,
and over federal cts, it can prevent federal circuit ct of appeals from reviewing the
immigration cts decision…a states regulation that affects an entire class such as a
general residency age or educational requirement generally is not subject to a
successful PDP attack instead look to EP!!! Because due process comes into play
only when a state focuses on an individualized determination to deprive a person of
an existing right benefit or entitlement. pDP req certain procedial fairness, when
someone acting under color of state of federal law takes away (terminates) a person
life liberty or property interst due process usually requires notice and ahearing…the
term person applies PDP protection to indivudals , corp, partnerships or
immigrants ..after determining thata. Person had a protected interest that was taken
away by the state, the next step is to determine if the process (procedure) used by
the state was constitutionally DUE (fair)..the primary purpose is to prevent
inaccurate adminstration or juduical interpretations from adversely affecting. Person
property or liberty rights, given a person notice and opportunity to be heard reduces
the chance of such errors…these 10 cant be deprived with PDP (drivers license isa
property interst that frequently is essential to a person livelihood it may not be taken
away without due process of law, however it may be temporarily suspended without
a hearing at the time of a drunk drivers arrest, but it requires an immediate post
suspension hearing. Those introduction of the breatherize test and results violate
the confrontation clause (NO) it is pretrail and the confrontation clause applies only
to testimony at a criminal trial and 2. the license suspension isa civil proceeding
and not criminal, revocation of welfare benefits can be devasting because of the loss
of food and shelter, thus a provocation hearing is constitutionally required 3. Since
social security requirement payments are not based on need, a POST termination
hearing is constitutionally permissible 4. Revocaking state disability benefits those
not require a prior hearing because this determination is based primarily on MEDICAL
DOCUMENTATION where there is LESS chance of ADMIN ERROR. There is a right to
a post termination hearing and if the claimant is successful, she can recoup all prior
unpaid benefits 5. Prejudgement seizure of a debtors property by the use of LIAS, by
the use of provisional remedies requires extra ordinary circumstance (PILES) and if
the order was obtained from the ct ex party, and immediate COP post seizure hearing
is required…a 5..of a tenure or civil services, requires a PRE termination minum
opportunity to be heard, the employee must be given an explanation for her dismissal
and an initial opportunity to respond, has a right to a full POST discharge hearing

R- a govt employee does not have a due process property right to continued
employment, unless the govt first has conferred a right that made it reasonable for
the employee to have a reasonable expectation of continued empoymenent. For
example an employment contract, civil service laws, or the govt usual Pratice of
NOT FIRING ITs employees…if the employee had no entitlement to continued
employment (1 year K that expired or she was a probationary employee, then she
does not have a property interst protected by the DUE PROCESS CLAUSE!!!!! An
exception is if she was publicly fired for a stigmatizing reason that would damage
her standing in the community and would limit her future employment oppurunites
(fired for illegality, dishonest, immorality, or incompetence) then she is entitled to a
due process name clearing hearing but only If there was public disclosure of the
stigmatizing reason which would be a road block to future employment…in
evaluating prison constitutional rights, cts give substantial deferences to prison
authority, the prison general prevails as long as its action is rationally related to a
legitimate prison interst (safety or security concerns) Thus a prisoner can be denied
free speech (letter from another prisoner containing legal advice, as long as rhe
prison action is rationally related to a legitimate prison interest)…prisons have an
obligation to provide medical care to prisoners because its favor to do so could
result in PAIN AND SUFFERING, which clearly does not serve any penological
interst…PDP requires that a prior convicted SEX OFFENDER MUST RECIEVE NOTICE
AND OPPURTUNITY TO BE HEAR BEFORE HE IS CLASSIFIED AS A VIOLENT SEXUAL
PREDATOR under Megans LAW, his liberty interst of not being stigmatized was
substantial. However this rretro active law req all sex offenders to register, did not
violate the bill of attainder or EX po facto clauses (SEE NICE MICE EVADE WASP)
CRIMINAL LAW Defense.

 Indigent Dead beat dads are not automatically entitled to conceal, even
tho they face incarceration for contempt of ct for there willful failure to
pay child support, because the SUPREME ct held that such contempt
proceedings are not UNUSALLY COMPLEX however they said states
must establish a fundamentally fair procedure by simplifying the forms
for determine whether he is or is not financial able to comply with
support order. He must also receive clear notice that his ability or
inability to pay child support is a critical issue in the contempt
proceeding
 Revoking a students right to a public education, a suspension for
disciplinary reasons does not require a formal hearing, if the suspension
is only for a trivial period (10 days or less) if for moree than 10 days it
only requires an informal give and take hearing (where the student is
given oral or written notice of the charges and If he denies them he is
given an explanation of the evidence the authorities have and
oppurtuniuty to present his side of the story (no right to consul) no right
to cross examine witness against him and no RIGHT TO CALL WITNESS
…academic dismissal does not require any hearing !!! Corporal punish
can not be excessive but there is no right to an hearing before its
inflicted, 30 states statutorily prohibit corporal punish (beaten)….

Substantive due process -SDP is used primarily to limit state action from infringing
on a person intimate rights to make personal decisions in areas of human privacy
and in the realm of family life and VALUES…most laws in these areas are subject to
strict judicial scruntiy, because they infringe on fundamental rights of privacy…if a
fundaemntal right exists then in order for the law to be upheld the state has the
burden of proving that the law is necessary to achieve a compelling state intest and
it is narrowly tailored to achieve that interst, if the STP right is only a liberty
interst (private sexual ACTS, the RIGHT TO DIE, FEMALES RIGHT TO ABORTION,
then the rational basis test is applied)….SUbstantive due process protects the
following 8 rights (MAD COPS) - right to get married, right to a marriage license or
recognition of a marriage can no longer be denied to GAY or lesbo couples who
desire to exercise this fundamental right, such denials violate the EP clause as well
as the substantive due process right to get married. Restrictions on the right to
marry based on not being in arrears on child support payment was held to be
unconstitutional because the states interest was not suffiencelty compelling and
that interest could have been achieved alternatively in a manner less restictive on
person fundamental right to get married (WCPS PIN)

A- in mad cops - personal liberty interst to a female, but states don’t got provide
funding for that shit (right to abortion) only 16 states allow poor women to use
medicaid funds for abortion. ABortion is not a fundamental right, the standard of
judical review is whether the abortion regulation poses an undue burden (substantial
obstacle) on a females moral decision to terminate her pregnancy before the fetus is
viable (which most states list as 24 weeks)…after a fetus becomes viable and able to
live outside the womb, most states choose to protect the fetus by criminally
punishing abortion except to save the mothers life or to protect her mental or
physical health. 38 states impose homocide charges for killing a viable fetus. During
previability, states can put some obstacles In the way of a quick abortion to
persuade the women to choose birth over abortion provided they are not
SUBSTANTIAL OBSTACLES (AKA UNDUE BURDENS) ct has held this shit aint undue
burden (48hr mandotry wait period for the female to reflect before terminating the
pregnancy. Requiring a female to listen to the doc 30 min lecture on the moral
arguments against abortions (27 states have 1 or 2 or both) 3, requiring a senogram
during the women’s 2nd trimester because of evidences present that a sonogram
protects a pregnant women help because it confirms the fetus gestational age,
weight, and lung compact, assets doctor in determining which abortion options such
be discussed with a female 4. Requiring notification and consent of a juveniles
parent but only if that law allows an expedition (ct held 22 days was expedition)
judicial bypass procedure as an alternative to parental involvement, where the judge
determines whether parental notification or consent is or is not in the Juve best
interst and whether she is suffiecentially mature to make the decision on her own…
45 states have parental involvement laws, all of the above laws must providee for an
immediate abortion (no 48hr wait, no doc lecture, no parent notice or consent, if the
female is faced with a medical emergency…its undue burden to require notification
or consent of the females spouse !!! 2. Any abortion perform after first trimester first
13 weeks, must be performed in a hospital. 3. Abortion clinics must meet the same
extracting standard as ambulatory surgical center 4. Abortion doc must have
admitting privileges within 30 miles of abortion clinic, neither 3 nor 4 above confer
medical benefits suuffiencent to justify the undue burden on bitches seeking an
abortion. State X passed. A parental notification law, there after its highest state ct
struck it down as violating the Juve EP under the states constitution , can the state
appeal this decision from its highest ct to the US sup ct since the US ct has upheld
parental notification laws (NO) because by relying on its states cons, and being more
protcctive of female abortion rights there now exist a state ground that is ct
inependt and adequate of federal law to uphold the state ct decision. Thereby
precluding US Sup review

Spouses righty to dissolve a marriage is a fundamental right, thus ct filing fees ($) for
indigent divorce should be waived by the state. A states denial of a divorce when
waived against a state interst (raise revenue) was simply not suffiencelty
compelling….states are permitted to enact residency req as a condition to getting a
divorce, because the wait does not deny the divorce but delays it…8 states req more
than a year, 4 states no more than 60 day weight, but most req 6 month weight

Liberty interst of a terminally ill person to die, ( to refuse medical treatment,

discontinue food, water, medicine or life support system) HOWEVER no con right to
have med assistance to speed up dead

Parents fundamental rights in deciding CARE, CUSTODY, CONTROL of a child

including educating, discplining and determining with who the child is to assocaite
with

State law allowing anyone standing to seek child visitation against a parents wishes
was struck down by the SUP ct as breach takingly over broad!!!!!!! States may not
mandate kids attend public schools, if the parent is provide an adequate alternative
program of home study or religious education. As long as parent continues to
adequately care for the child there is no legitimate reason for the state to interfere
with the parent decision concerning the child upbringing. Cts must give special
weight to a fit parents decision as to her Childs best interst however under the
doctrine of parents patria, states have a compelling interst to order necessary
medical treatment to protect a child’s life, also has a compelling interst if evidence
or child neglect or abuse (MA PA) (Mn 8, P2)

Substantive due process prevents a state from terminating parental rights (adaption
of the right) without notice and a parents opportunity to be heard and by requiring
the govt to show that by clear and convincing evidence a compelling reason for
doing so…if a biological parents abandons parenting obligations he also abandons
the MAD COPS fundamental rights as well, thus an absent biological father who has
not maintained an ongoing parental relationship may have parental rights terminated
and the child adapted without his consent. An unwed biological father who has
assumed parental responsibility of support and visitation, (has relationship) is
entitled to notice of the adaptions and he may block the adoption if he is willing to
assume custody of the child….S. - sexual activity, STP protects against unwarranted
state intrusion into a couples sexual pleasure, private comminemt, love and how that
love is expressed sexually…it can not make private consensual acts of homo or
heterosexual adults a crime because private sexuality or sodomy altho not a
fundamental right is a liberty interest protected by STP (substantive). Sup held rhe
state did not have a rational basis to justify making private consensual sodomy
between adults a crime

Contract clause limits states from unreasonably enacting laws that retroactively

impair the rights and obligation of an EXISTING EXECUTORY K. Freedom of K is not
a fundamental right, thus states don’t have to show a compelling reason for enacting
or inacting a law that coincidental interferes with an existing K…under its police
power states may enact laws that terminate or modify existing exectury K, if the law
is rationally related to furthering an important govt purposes. Thus K clause only
prohibits a state from UNREASONABLE Impairing executory K. In making tis
determination Ct look at whether the subject matter of the K was previously
regulated by the state and if so then the K parties such have anticipated
(foreseeability) the likelihood of continued state regulation within this area…R-
because a state has a direct economic incentive to impairing K to its benefits, cts
are less deferential to laws that impairs its own executory K. !!!!!!!!!!!!

Actin
en

It

Whatchu finna do today to Honor MLK 👀✊🏿

When D Spears before a judicial officer usually at an arrangement after an indictment

but in many states there’s an informal proceeding where charges are read & consul
is assigned one or 2 days later...in these proceedings if the D doesn’t affirmatively
invoke right to consul
85 89 199x 65 67 81 20 21 22 23 33 -5 (43 44 45 47 49g 50g 51 52 56gg 57

-1 - 54 61 60exres shit (16, 17

I’m good tho, was just thinking about you, wanted to make everything is okay. What
have you been up to ?

When a D is in jail aw

062517 TRans world specific incorporated

then that D can be questioned by the police. This rule #2 atatchement of the right to
consul is “offense specifc and doesnt extend t other offesne to which the D was not
chargedm including crimes related tot he foffense fot which the D is being arranged
an indicted..scope #2 is much more arrow tan #1 above (#1 I need. a lawyer thats it!!,
no question at all) #2 is offesnse

When a D is in jail, a govt aent possing as a criminal, ca not question the D about the
pending charge, but can question about other related or unrelated crimes, a ciminal
snitch may act as. Apassive silencer on the pending crime. But if more than passive
“you look troubled” then statement npt admissble on the people direct case at crime,
but such statements are admissible to impeach the D if he testifies at trial

Line up a D doesnt have a 5th pf 6th right to refuse to stand in a lineup. Before formal
proceedings (indictment or arrangement) consul is not constitutionally require at a
lineup….howeber post indictment and post arrangement are deemed a critical stage
requiring consul attendance, evidence of a lineup ID is inadmissible if A. It was mad
after arraignment of indictment without pressnce of required attornye B. Fruit of
unlawful arrest (not based on PC) and thereafter D was placed in a lineup C. Line up
procedure was unduly suggestive thus creating a substantial likelihood that the D
wuld be singledout for ID..an ID from a station house showout is inherently suspect
but admsibbilty depends on TOC to deteri=mine if the show was reliable

A prompt and immediate show at or near rthe crime scene is an acceptable means of
succoring a reliable ID while the witness memory is still fresh..even tho vita from
improper ID showup or lineup, if that witness had a reliable independent recollection
of the D that was not tainted (cu=orrupt) by impproper line up or show, thens he can
make a subsequent in ct ID at the trial…if after conducting a pretrial WADE HEARING
the ct improper permitted ID testimony at the trial then on appeal that error may be
harmless, if there is other overwhelming evidence of D guilt.  Usually this error will
not be considered harmles where the only evidence against the D is from a single
Eyewitness..

Corpus Deliciti Rule - body of the crime..A D may not be convicted or indicted by the
grand jury, solely upon a D confession without some additional proof that she
committed the crime, Req corroboration of the D confession by some other evidence
tending to show a crime occurred

Criminal Law - A crime consists of 1 Voluntary physical act (Actus reus) which is the
bodily movement or the wrongful prohibited by the penal law 2. A guilty mind (mens
Rea), which together 1&2 violates a penal statute. When 2 crimes arise out of the
same conduct or transaction, then wheteher concurrent or consecutive sentences
may be imposed depends on whether the actus Rea of each was the same or a
material element of another crime. Double jeopardy prohibits the imposition of
consecutive sentences for the same offense, each containing the same elements or
where one crime is a lesser included offense of the other. However if each crime
contains an element not found in the other crime, then consecutive sentences may
be imposed without violating DJeopardy. D was convicted of Murder and bank
robbery, these crimes don’t have the same actus refs and each crime contains an
element that the other does not. Thus consecutive sentences may be imposed in the
ct discretion. General criminal capability is not imposed for a failure to act similar to
tort law the penal law imposes no duty to go to someones ad or to warn of an
imminent danger.  4 exception to this no duty to act rule 1. Where a statute imposes
a duty to act a. Obtaina a license b. File a tax return or C. Testify under a grant of
immunity. 2. Where the D conduct cased the danger 3. Special dependent
relationship extist parent have duty to aid feed protect and give medical attention to
a child. A spouse owes a similar duty tot the other spouse…where a duty to act
arises from a K, life guard, doctor, baby sitter or a guide on an expedition owes a
duty to protect those for whom the duty was contractually undertaken..
A person is criminal cupable as an accomplish where she owed a legal duty to act to
oppose to prevent or to lessen the harm caused by the criminal conduct of another
and her inactivity was coupled with the same CRIM K culpable state of mind as the
principal first degree

I intent -

When the offer is accepted the solicitation merges into the crime of conspiracy thus
in most states this crime is punishable only if the offer is refused. 1 a solicitation
doesnt amount to the crime of ATTEMPT, but once it is accepted (conspiracy) the
soliton is guilty of the crime of attempt when his coconspirator takes a substantial
step toward a commission of the crime and that person could also be convicted of
the crime of attempt. (In classQ 5 page 11)

Conspiracy when IR & C agreed to burn black acre that illegal contract constituted
the crime of conspiracy. Its an agreement with the specifc intent to comment a
crime, it is an offer and acceptance of that offer to perform an act prohibited by the
penal law. Offers ot engage in ilegal transcations are excluded from first
ammendment protection and the offer and acceptance are not considered hearsay.
Because those out of ct statements aren’t being offer into evidence for the truth of
their contexts. Conspiracy doesnt merge, As the crime of attempt those, thus coD
may be convicted and consecutive sentences imposed for conspiracy and the
substantive crime, even if the D are found not guilty of the completed crime, they
nevertheless may be found guilty of a conspiracy. At common law no additional
overt act was required for conspiracy, however most states and most fed states
EXCEPT FED DRUG CONSPIRACY EXPRESSLY REQUIRE SOME OVERT ACT TO
PURSUE THE ILLEGAL GOAL…anbsent specific contrary language, state and fed
adopt the common law defititon of conspiracy where no overt act was required. The
arrest of a co conspirator for another crime does not automatically terminate the
conspiracy if the other coconspirator continue to carry out the criminal plan. In the
Pinkerton case, a coconspirator is criminal liable for any and all reasonably
forseeable crimes committed in furtherance of the conspiracy by other
coconspirators. Under the MPC and in most states, a conspirator is not liable for
crimes committed by another coconspirator unless he suffiencelty participated in
those crimes to be an accomplice. Accessory before the fact, or aider and
abettor….If elevated to robbery (NO PRESENNCE, didn’t aid or assist)…an exception
to this rule is for a violent breakers felony (mnemonic 4 page 1) In which all
conspirators are guilty of a resulting felony murder which is considered a natural and
probable consequence of the violent felony that each intended to aid and
encourage..all of the coconspirators do not have to know one oanother a conspirator
need only know that a person with whom he has conspired has also conspired with
others to commit the ongoing crime (S conspired to import drugs into the US and to
distribute the drugs to M a middleman who was to sell them to 87 street dealer - S is
a conspirators with all the 87 dealers who are presumed to know they are part of an
enterprise extending beyond each D individual participation.

Providing goods or services knowing they will be used for illegal purposes usually
does not give rise to a conspiracy unless the provider did so with the purpose
(intent) that the crime come about. This intent may be inferred if 1. The D had a
stack in the outcome 2. He charge inflated crimes for the goods or services to be
used In the crime 3. Large share of the D business involved criminal activity

At common law conspiracy had a plurality requirement, thus they can be NO

consirpacy (no meeting of the minds) if one party A. Pretended to agree B.
Undercover police 3. Infant or insane 4. Forced to agree…if one of 2 common law
consicrptors was acquitted there can be no common law conspiracy…..R a majority
of states have adopted the MPC unilateral conspiracy theory defining conspiracy as
an agreement by the D, rather than an agreement between 2 people. Thus If D
agrees, D is guilty of a conspiracy even tho the other K party lack the intent, or the
mental capacity to form the intent..this unilateral conspiracy theory reqs DA to
prove 1. D had the spefic intent that a crime be commented 2. And D entered an
agreement to bring about the crime.

Under the WARTON RULE - where a crime cant be committed unless 2 culpable
people are cooperate and the penal law punishes them both (insect, bigomy, bribery,
gambling, or sale of guns drugs or stolen goods there can not be a conspiracy unless
an additional coconspirator was involved who was not essential for the commission
of the crimee. Example 3 people agree to commit the crime.

The crime of attempt, means to initially try to commit a crime, Crime K means Rea of
intent but not to succeed. A D can not be guilty of the crime of attempt or criminal
negligence of a reckless conduct crime. There can be no crime of attempted felony
murder, or an attempted involuntary manslaughter. In some states D is guilty of the
crime of attempt only if she is dangerously near or on the verge of accomplishing the
contemplated crime, the D doesnt have to take the final step necessary to complete
the crime. However mere discussion of the crime preparation or even taken a overt
act sufficent for conspiracy is not enough for the crime of attempt! A conduct must
unequivocally manifest a criminal attempt (intent?)….Rule MPC and a majority of
states only req a D to take a substantial step toward the commission of the crime
strongly coobeerating the D criminal purpose. It swifts the emphasis away from what
little remains to be done (minority approach) to the steps the D has already taken. A.
Searching for the victim B. Surveying the location of the crime C. Lying in wait.(Ex D
wants to kill or rob B victim, D calls or send B an email inviting B to meet D at the
place of the intended crime, under MPC this is sufficent fr the crime of attempt.

HYPO. C was guilty of attempted larceny by false pretneses (insurance fraud) cause
C took a substantial step and was also dangerously near receiving the money from
the insurance company, by C knowing filing a material false written statement to
fraudulent recover money from the insurance company. A D may be convicted for an
attempted strict liabilyt crime prohibiting conduct, attempted stat rape of an
underage person here a prosecutor must prove tat the D tried to have sSEX
(40) knowing the victim was underage. If a D is successful, the crime of attempt
mergers into the completed crime.

Factual impossibility to commit a crime is never a defense to the crime of attempt.

Thus were D intended to commit a criminal act, murder larceny, sale of drugs or sex
with underage person, but that crime could not be accomplish because of facts
unknown to the D, then D is nevertheless guilty of an attempt to commit tat crime, if
it could have been committed had the circumstances been AS the Defendant
believed them to be, and the the D initiated was prohibited by the penal law…Factual
impossibility is much different from the defense of legal impossible, which arises
when a D goal is to perform an act that is not a crime, but he thinks it is a crime.
Legal impossible is a defense to crime and attempt, where if the D successfully did
all that e set out to do but his conduct didn’t violate any penal law, even tho he
thought he was committing a crime

The crime of arson - C is guilty of arsen as R accomplice (as assecory before the
fact) (and R is guilty of arsen as a principal first degree) Rule- at common law arson
was the malicious burning of the dwelling of another (recklessly or with the intent to
burn a dwelling but not negligently causing a dwelling to burn)…common law defined
dwelling a s structured used for overnight habitations which is the same definition
for common law burglary !!!! NO ONE HAD TO BE IN THE DWELLING at the time of the
burning. By statute most juris have expanded arson to include any structure used for
overnight lodging or to carry out a business. Total destruction was not require, but
common law req more damaging than mere blacking of smoke, req charring or
burning. Most states have different decrees of arson based upon whether people
were in the structure, reckless or intentional arson, whether it was a dwelling and
whether someone was seriously injured. Think of PIES as the most serious arsons, if
an arson proximately caused the dead of another other than the criminal participate
then a felony murder also occurred. L a landscaper raked a pile of leaves next to O
house and intentionally set the leaves on fire aware of the danger to O dwelling,
(guilty of a reckless arson) if the flames damage O dwelling. If the flames didn’t
damages the structure, could L be charged with attempted arson, because L had no
CRIM K (specific intent) to damage destruction. L conduct was reckless and the
crime of attempt needs the means Rea of intent, if L was unaware of the grave risk
to O house when L intentionally set tstared the fire that burned O house then there is
no arson, because the mea Rea for arosn was not present. Here only criminal
negligence existed and that is not arson. Rule - at common law it was a defense if
the D owed the dwelling and no one else had an interest in that structure, provided D
intent in starting the fire was lawful and it was not foreseeable that the fire would
harm another property. In the hypo the bank and the insurance company had an
interst in the realty negating this defens????????????????????????EX- one night X
broke into a dwelling with the intent to steal, to locate the wall safe, X intentionally
lit a match which accidentally touched a flammable curtain and the house burned
down. There was an intent to commit burglary bu that cant be transferred to another
crime, X lacked the crime K to commit arson, cause X did not intend or desire for the
fire to damage the dwelling nor did X recklessly cause the fire damage..reckless
conduct speaks of being aware of a substantial risk and CONSCIOUSLY disregarding
that risk, since X neg caused the fire damage this is not arson..but guilty of burglary
and attempted larceny.

Homocide - occurs when someone unlawfully cause the death of another living
human being. Death occurs when the brain ceases to function even tho the victim
heartbeart and breathing can be artificially maintained by connecting the vic to a
respirator. If the docs remove a brain death victim froma. Respiratory, it is not a
defense to the homocide D that the victim breathing and heartbeatt coulda been
artificially continued. Causation, problems of criminal causation arise almost
exclusively in homocudes, at common law a homocide victims death had to occur
within ONE YEAR and ONE DAY for the death to be considered proximately caused
by the D criminal conduct (only 3 states still follow thus archaic rule). To determine
proximate cause today, ct apply the but for casual cause plus also requiring that D
conduct be a proximate cause a substantial factor in causing the victims death, the
D is responsible for the ___ of natural results of his criminal acts, but not for bizarre
and unforeseeable subsequentuent acts breaking the chain of causation. If a
subsequent unforeseeable act is the sole cause of death, the criminal D is not
responsible. Where they are multiple causes of a victimms death, then in most
jurisdiction, prosecution must prove beyond a reasonable doubt, that the D conduct a
cause in fact for the death, BUT FOR, the D woulda lived…and 2. The D conduct
proximately caused the victims death, the victims conduct was a substantial
contributing factor and that by itself it would been enough to cause the victims
death. Where multi sources cause the victims death, the state must prove that BUT
FOR the D conduct, the victim would not have died when he did…if the state is
unable to prove whether the victim died naturally or from the D criminal conduct
then the staes can not meet its burden of proving the homocide elements beyond a
reasonable doubt. The fact that the victim would have died from another preexisting
cause is not a Defense if the D conduct in fact proximately caused the death
D slashed X arm with a box cutter and X died 1. Because he was hemopeliac and
quickly bled to death or 2. X refused a blood transussion for religious reasons, Rule -
D is guilty of a homocide even tho Death was not forseeable (intending to cause
serious injury, resulting in death (FIGSSSSSS)

A criminal D takes his victim as he finds it, but unlike tort law docrine of avoidable
consequences, the crime victim doesnt have to take reasonable steps to lessen her
injuries and the D is criminally responsible for the results

At common law MURDURRR was define as the unlawful killing of another human
being with malice of forethought, premeditated or deliberate. Today murder and
malice of forethought have been expanded to figs murders, to obtain a homocide
conviction the prosecutor must establish beyond a reasonable doubt that the
Proximately caused another death by FIGS MAN.

F- felony murder I - intentional miurder - G- created grave risk of death approaching
a certainty of death but consciously disregarded that risk, evidencing a deprave
indifference to the value of human life. DIM - depraved indifference murder AKA
depraved heart murder, intent to cause serious bodily injury creating a substantial
risk of death resulting in death…at common law the first 2 murders in FIGS are
murde fin the first degree (felony murder and intentional murder) and the last 2 figs
murder, where murder in the 2nd degree. MAN - manslaughter, which can be
voluntary or involuntary manslaughter,

Felony mirder - usually is an unintended Homo, occurring during the attempt, the
commission or duringh the immediate flight from a dangerous felony. The felony is
deemed to end once a defendant reaches a safe harbor at which time there is a
break In the chain of events…Intent to kill is not a require elelmet for FM, only has to
prove D intent to commit the underlying dangerous felony. If the jury acquits the D
for the underlying felony then the felony murder charge can not stand! In a majority
of staes, the agency doctrine requires one of the felons as an agent of the felony to
proximately cause the accidental killing for a felony murder to occur. Some states
recognize felony murder even if the act causing the accidental death was not
committed by a felony. (Stare clerk or polcice shoot back and kill somebody, then
you not responsible)…….In almost all states death of a felon is not considered FM

Under MPC and in most states, the predicate felons for FM are BREAKERS (one
exception to safe harbor rule is ARSON (firefighter fighting fire and dies)…..Escape
(someone dies in the escape???)
An accidntial dead in a larceny, assault, battery (NO FM). Dead accidentally occirig
an LAB felony or during a misdemeanor is called an “unlawful act murder”
“Misdemeanor manslaughter” however death occurring during an LAB misdemonar
under circumstances evidencing a depraved in difference to human life may be
MURDER…..D was tried for attempted murder and battery, D was acquired of the
attempted murder charge but convicted for battery, 6 months later the victim died
from the battery (NO FAM, cause battery is not a predicate felony for FM, LABBB)…
For double jeopardy purpose the felony and the resulting murder are ONE OFFENSE<
thus they cant be consecutive sentences for the underlying felony and the felony
murder. In a substantial minority of juris, an affirmative defense to felony murdrrer is
available to a felon who didn’t act alone (had an accomplice) if he can establish he
was simply a CUB (C. Didn’t commit command, assist or request the fatal act…U. He
was unarmed with a deadly weapon or substance readily capable of causing death. B
- no reason to believe another conspirator was armed or intended to engage in
conduct likely to result in dead

DEAD penalty - 31 states and the Fed still impose capital punishment, the dead
penalty is not a per se violation of the 8th prohibition against cruel and unusual
punishment. C&U is a sentence imposed on a criminal D that is grossly
disproportionate to the crime…Violated by imposing a dead penalty one a CUB
FELONY murder D in those majority juris that don’t recognize the CUB DEFENSE 2.
An intelligence disabled defendant and states can not adapt a rigid IQ score (ex only
those D with an IQ of 70 or less,)…Rape where adult or minor didn’t die. 4. An infant
not age 18 when the killing occurred. 5. A MANDATORY DEATH SENTENCE FOR
EVERY MURDER OR CERTAIN TYPES OF MURDERS, because a jury must be allowed
to consider mitigating circumstances including the individual characteristic of each
murder defendant 6. Execution of a person who lacks the mental capacity to
understand he is being executed as punishment for a crime because it lacks any
retribution value. However, if he can not remember his crime, but he recognizes he is
being put to death for a murder that he was found to have committed then this is not
an 8th amendment violation.

If the only sentence other than a death sentence is life without parol, then due
process requires the jury be advised of this fact. Rule in order for the death penalty
to be constitutionally imposed on D, A. The victim must DIE, but an exemption is
made for crimes against the state such as TREASON, TERRORISM, ESPIONAGE,
CRIME INVOLVING DRUG KINGPINS, where the death penalty can be imposed even
tho no one died
Either the Legs must narrow the type of crime eligible for Death penalty or allow the
jury to narrow the types of killings, by requiring the jury to find some aggravating
circumstance before the dead penalty may be imposed. Here states look at the type
of killing, type of victim or the type of D.

Hypo - arisen of black acre resulted in 2 death V&I,,, R and C prob would not be guilty
of felony murder because altho they had reasonable grounds t believe that the infant
possessed an instrumentality readily capable of causing dead (flammable liquid) thus
there was no CUB DEFENSE< however I&V were participants in the crime. And Dead
of a participant doesnt constitute felony murder. V was a facilitator of such a serious
nature that in most juris he would be considered an accomplice. But it could be
cogently argued that V was a non participate and that his accident death was felony
murder.

Intentional murder, this occurs where the D WANTED HIS VICTIM TO DIE - in a
majority of states the prosecutor must prove that the D with remediate and
deliberation desired to cause the death of another and in fact cause the death of that
person or 3rd person. Delibaterion req cool reflection to commit the criminal act and
premeditation requires a deliberate preconceived intent to kill !!! 29 states use
premediation and deliberation, a minority of states don’t req prem editation and
deliberation and define murder simply as intentionally killing another!!!!!!!!!!!! A jury
may infer an intent to KILLLLLLL from the nature and circumstances of the violent
act. What part of the body was assault as well as whether a weapon was used

The doctrine of transferred intent does not apply to the crime of attempt. D intended
to kill X, X shot at X but hit Y, WHO DID NOT DIE (guilty of criminal aggravated
battery of Y, and the attempted murder of X), but not for the attempted murder of Y.
Because he had no specific intent to kill Y…

Depraved indifference murder -

D commits a common law murder when he intents to cause serious bodily injury
resulting in death.

Malice of forethought arises where a D - desires to kill V (intent) 2. Desires to inflict

serious bodily harm resulting in death 3. Reckless disregards a grave risk of death 4.
Intends to commit a dangerous felony (felony murder)
Manslaughter voluntary occurs where a D intentionally commits the murder but the D
intent arise under circumstances of EXTREME emotional disturbance or D committed
the murder In the heat of passion. (ANGER, JEALOUSLY, or GRIEF) many states view
the extreme provocations OBJECTIVELY and whether a reasonable person would
have responded violently (MAJOIRTY VIEW) however the MPC and other states view
thece circumstances subjectively (AS THE D Believed them to be, even mistakenly)
Usually verbal insults are not suffiencent provaction to reduce intentional murder to
voluntary manslaughter (but adultery, aggravated battery or serious criminal assault
may be suffiencent provocation to kill), also abusive words that are also
informational may be sufficient provocation to kill…in a justifiable self defense, when
D uses excessive force resulting in death, which is called imperfect self defense, the
jury may reduce a murdur charege to mansalughteer if D acts were committed in the
heat of passion…

Involuntary mansalughter arises where the D is aware of a substantia risk of serious

injury or death, but less than the grave risk of DEATH, required for DIM (Depraved
indifference murder) and despite this knowledge, D proceeds to act and recklessly
causes a death of another. Usually the D conduct is classified as a DIM murder when
the risk approaches a certainty of death, but with an involuntary manslaughter D
reckless conduct only present a substantial risk of dead or serious injury …some
jurisdictions (min) include criminal neg homocide as involuntary mansalughet, it
arises when a D fails to perceive a substantial and unjustifiable high risk of death or
serious injury that a reasonable person woulda been aware of. (Ex- a child is. killed
while playing with a parents loaded gun neg left in the house 2. A hunter neg kills
another hunter 3. Pointing a gun at another as a joke and the gun accidentally
discharges 4. Texting driver hits a pedestrian

When a homocide occurs, look to see if the D intended the killing, if it was an
intentional killing it is murder unless HIS (an unitentional homocide is murder if it
was BIG.

Robbery- the vagrant was guilty of the robbery of the farmer, rule - the crime of
larceny is taken, the slightest movement is enough, personal property of another
without permission with the specific intent to permanently deprive the owner of that
property. Robbery is larceny by the use or threatened use of immediate force
(intimidation) it requires a criminal assault or criminal battery plus a silmutaenous
larceny !!! Larceny is a lesser included offense of robbery because its impossible to
commit robbery without also committing a larceny. If no force is used in the initial
larceny but force is immediate used to overcome the victims restisannce or force
used for D to get away then the larceny becomes a robbery

GRAND LARCENY - WHEN YOU STEAL FROM SOMEONES PERSON !!!!!

(D entered a bank and at gun point took money from a teller, he deliberate failed to
make a quick get away hoping to be arrested so that he would be returned to his
prisons drug abuse treatment program….NO robbery, cause even tho he committed
and knowing engages in the actus Rea of using force to take money (satisfying
general intent) he didn’t intent to prementatly deprived Bank of his money. Thus
prosec couldn’t prove the specific intent of robbery

Kidnapping combines 1. A criminal assault and or battery 2, a false imprisonment

(forceable restraint) and 3, abuduction, movement of the victim by force or threat of
force. R- where the force movement and restriction are incidental, simultaneous and
inseparable from another crime (robbery battery or rape) and the imprsionment was
BRIEF, then the crime of kidnapping merges into the other crime. The merger doc is
intend ot prevent a kidnapp conviction, when based on brief acts of asportation
(movement) and restraint closely connected to another crime. A aggravated
kidnapping involves a demand for a ransom or 2. To facilitate in a felony or in the
flight therefrom. If the kidnapping victim is under the age of 14 or is mentally
incompetent, then she is deemed unable to consent and the crime of kidbapping
arises. When the vagrnant threatened to break the farmers leg, the crime of assaultt
occured. This is similar to the tort of assault and it arises when a defendant has the
present immediate ability to do so, and attempts a battery (swings and misses) or
intends to cause apprehension of an immediate battery. A criminal assault requires
a specific intent to scare the victim 2. Resulting fear or apprehension or 3. An overt
act by swinging a fist or displaying a gun, but not just a mean look. The act must
cause reasonable apprehension of immediate bodily HARM, and the victim must be
within the defendants reach. Defendant must have the present ability to immediately
commit the battery. The crime of battery- a criminal battery like a criminal assault is
a misdemor in most juris, unless it is an aggravated battery. Harmful or offense
touching, but MPC limits this crime to when the battery causes physical injury. R- if
the nbattery results In death, then the crime is a Reckless manslaughter, unless the
victims dead resulted from an aggravated battery, which would then be FIGS murder.

Bulgary- common, unauthorized breaking and entering into another dwelling (USED
FOR OVERNIGHT LODGING) during the NIGHT, with the specific intent to commit a
felony therein. I BEND. If the common law enter occured during the day, it was only a
trespass, plus the felony intended in the dwelling or its attempt! MPC defines the
general intent crime of criminal trespass as entering unlawfully onto another land, or
remaining unlawfully on others land. Bulgary is the general intent crime of criminal
trespass coupled with the specifc intent to comment.a felony therein. The crime of
burglary seeks to keep out univited intruders. Neither I nor R was gulity of bulgar of
C paint store, because C gave them permission to enter. If a D is invited into a
dwelling, there was no burglary, even tho he entered with the specific intent to
commit a crime therein….Breaking occurs by exerting any force rto remove a barrier
to enter the dwelling. For example= breaking or lifting a closed window or opening a
locked or unlocked door, if the window or door was partially opened then the D
opening it further was NOT breaking… AZQcvx

Constructive breaking and enter if consent to enter was obtained by FRAUD, an

intruder intending criminal conduct, who break the barrier with a Y, is no less
dangerous to the inhabitance of the dwelling…Bulgary is a crime against habitation,
thus D can be convicted and consecutively sentenced for both bulqary and the felony
attempted or committed within the dwelling. A spouse with co title to the realty can
be guilty of burglary, where a ct have the other spouse exclusive possesion of the
realty. At common law, it is not burglary to break and enter, with the intent to
commit an assault or battery therein, but it was common law burglary if the
intended crime was larceny !

One Night D went to C house to collect money C owed to D, D opened C unlocked

front door, (breaking) and entered, when D didn’t find C at home D became agree and
took C valuable painting out on the front yard and set it on fire. (Burning chattel is
not arson) (larceny yes, cause his intent was to permanently deprive C of chattel and
wrongful taken (movement) with this intent …most states have extended this crime
of arson to include any structure used for lodging or carry out a business day or
night, and have eliminated the breaking element and simply defended bulgary as
KNOWING entering or remaining in a structured unlawful fully (could be a tent, DV-
things you sleep in the back(

MPC afford D an affirmative defense fi rhe strucutre has been abandoned

The crime of RAPE - common law rape is nonconsensual sexual penetration by the
use of force or threats of force. The rape definition has been expanded to include the
rape of a male by another male. Rule strict criminal liability is imposed for stat rape.
Even if she consents, where is illegally incapable of consenting because she is 1.
Intelligence challenged, 2. Physically incapacitated 3. Underage in 31 states the age
of consent is 16. At common law and the model penal code a husband can not be
guilty of raping his wife but many states find this spousal exemption to violate the
equal protection of married women, because distinguishing between married and
unmarried females foe the crime of rape lacks any rationale basis.

Any sex crime victim predisposing for sex crime activity or sexual RIP. Reputation,
prior instances of sexual conduct, P another person opinion of the victim sexual
appetite is presumed irrelavant for any purpose (for example, that she watched porn
with others, or she posted sexually provocative postings on her website is irrelevant
in ct for any purposes. If the ct finds that the victims sexual activity is relevant in a
CIVIL CASE then its probative value must substantially outweigh its harmful and
unfair predijudce to the victim (essay 30 pepper MEE book)…the following may be
admissible in a civil and criminal case where rape is involved ( the victims prior sex
with A. The D because prior acts of intimacy with the victim are relevant to bolsters
the D claim of the victims consent or B. A 3rd person to prove that someone else was
the source of the victims injury…2, the victims prior inconsistent statement as to
who raped her, or 3 impeaching the victim based on her prior false sexual assault
complaint but only if it was suffiencetly similar tot the current complaint to suggest
a pattern….FRE requires a D to file a motion at least 14 days before trial of his intent
to over such evidence (123 above) in some criminal or civil sexual assault case or
child molestation cts may admit evidence of prior uncharged VIC sexual acts
(Vicious, IMMORAL, Criminal Acts) or prior convictions of such crimes or even the D
acquittal of such charges, and it can be offered for any purposes even to show the D
pronsepity to commit these unlawful sexual acts…in offering such evidence there is
no due process violations cause ct must balance its unfair predjuical effect against
its probative value, but unifromly almost every ct has admitted such evidence. Under
the prior rape outcry rule, the prosecution on its direct case may offer evidence of
the victims prior consent statement of rape, that was promptly made ot a friend or
family member. This statement is admissible for corrabtiing that a rape occured and
to prevent jury suspicion when.a victim failed to promptly go tot the police, this
prompt outcry is admissible to show that a rape took place, but not its ACCOMPANY
details (WHO committed the rape)…the prior outcry is admissible provide the rapist
(???) took the statnd and testified, and the outcry was made at the victims firs t
suitable oppurnity (infant reported it to her mother the next morning but not if the
report was made days weeks or months later). If the outcry was made while the
victim was still under the influence of the harmful event, she made t to the EMS
technician or police, then the entire statement is admissible, including the ID of the
rapist, and regardless of whether she will testify because its a hearsay exception
(excited utterance) provided the ct first determines it was not TESTIMONIAL IN
NATURee and would not violate the criminal defendants 6th amendment right to
confrontation

Larceny - r was guilty of common law larceny by stealing the bracelet from the
borders room, larceny is the wrongful taken (aspiration) another personal property
with the specific intent to 1. Permanently depriving from the owner 2. Deny the
ownerr its possesion for an unreasonable length of time or 3. Use it in a manner that
deprives the owner of its value. If the property stolen is contraband or itself stolen
property, it is nevertheless LARCENY…common law larceny required TIP, wrongful
taking requiring only the slightest movement of the chattel I. Specific intent to
deprive owner of property (123 above)….larceny cant be committed by inadverance,
mistake, or negligence…intent to temporarily borrow or use property, is not larceny !
To go into X garage without permission to borrow a snow blower or ladder, intending
to return it the next day is not larceny ! But under the counting trespass theory D
commits larceny if she subsequently changes her mind and sells abandons or
decides to keep the borrowed property depriving the owner thereof….P .perosonal
property of another, but MPC now include thief of fixtures, crops or minerals from the
land as larceny…if a transaction is to be completed In the owners presence then any
delivery of chattel to the D transfers only custody and not TIP possesion, if that
property is then stolen it constitutes TIP larceny even tho the owner delivered the
property. To the D.

A finder of lost property, who knows who the owner is or can easily discover the
owner or a dD who recieves misdelivereed or overdelivered goods is guilty of a TIP
larceny if the moment of taken possesion she immediately had a larcenous intent to
deprive the owner thereof. Larceny by trick is where the owner delivers possesion to
the theif and there is no unlawful TIP taking but the delivery was induced by the DD
fraudulent statements relied upon by the owner to surrender possesion of the chattel
and where the D intent was to premanteluy deprive the owner thereof, no trepassory
tip taken. Larceny by false pretenses is where both possesion and title are willingly
transferred by the owner to the D,, but it was induce by the D fraudulent statement
(ex where the D 1. Used a stolen credit card 2. Collected money for a fraudulent
charity 3. Forged someones signature on a check 4. Purchasee property with a check
that bounced…on Friday B purchased a 300k ring and paid by check, D planned ot
smell the win fr 450 dollar at the flea market and then deposit the money on monday
to cover the check, that weekend it snowed and there was no flea market, if the D
believes D she is not guilty of larceny by false pretenses because when she took
possession of the ring she didn’t not have requisite specific larcenous intent. To
assert larceny by false pretenses based on a breach K on which the D recieved
money in return for her promise to perform future service, future delivery of goods, or
promise to repay borrowed money, the Pros myst prove that the D who breached that
K never had a present intent to perform delivery or repay under the K terms. (Q 12
page 18)

Larceny by emblezzment this arises where property was lawfully delivered to the D,
(no fraud inducement) but thereafter it was fraudulent stolen by the D (For ex, an
attorney embezzling escrow funds. Employees only have custody, not possesion of
their employers chattel , thus if a nigga steals the bosses goods it is common law
TIP larceny and not emblezzmenr, unless the employees recieves property or money
from a 3rd person to be delivered to the employer, then cause the employer never
possessed it. The employee is deemed to have possed it, and if she steals it it is
larceny by emblezment

Larceny by extortion arises when a D obtains money or property from a victim with
the victims consent induced by the D threatening to 1. Cause V personal injury in the
future 2. Inflict immediate property damage 3. Cause a labor strike 4. Accuse the
victim of. Crime 5. Corruptly use the D possession as public official or 5 expose of
secret, whether true or false that would subject the victim to hatred contempt or
ridicule .

5types of FLEET LARCENY (

12:35!!!???

To eliminate the distuigistion and fine line distinguishing in fleet common law
larceny, MPC no longer ask the pros to allege, other than asserting their (thus a D
who with the intent to deprive another of property wrongfully takes obtains or
withholds the property is guilty of theft

Receivingg stolen property - HYPO C is guilty of recieiving stolen property

(flammable liquid from F) because C 1, knew It was stolen or believe it probable that
it was stolen when he recieved it or under the MPC while he retained it!!!!!!!!!!!
Intended to prematurely deprive it from the owner, the property recieved was innfact
sole…and MPC, an inference of knowledge arises when merchants buy or sell goods
including pawn bothers and who 1. Also possessed stolen property from 2 or more
prior thefts.2. previously possessed stolen property within the passed year or 3.
Knew that the price paid for the property was substantially below market value..if
stolen property was recovered by its owner or police, then it is no longer considered
stolen property, thus if a theft Is caught and cooperates with the police and pretends
to be selling stolen property to the D, then that D cant be convicted for receiving
stolen property, but can be convicted of attempted receipt of stolen property
because a D facial mistake is not a defense to the crime of attempt

A criminal D may have the following criminal law Defense NICE MICE EVADE
WASPS..before a jury starts deliberating a crime D is entitled to a criminal defense
jury instruction provided there is evidence in the record that a reasonable jury could
find that the defense exists…for example, if on a reasonable review of the evidence,
the jury can find the D actions were justified, then a ct failure to charge the
justification defense, is reversible error subject to the harmless error rule, almost all
crime law D are affirmative Defenses, reqs the crime D to prove by preponderance of
the evidence, after the people have proven every element of the crime beyond a
reasonable count. The fdefenants evidence in support of a affirmative defense, must
be of such convincing quality as to outweigh the people contrary evidence (51 to
49%) If the prove offered to the jury by both sides is equal (its a tie) then the D has
not meet the burden of proof. The US sup ct has held that states may cons impose a
higher burden of proving affirmative defense such as by a state req clear and
convincing evidence************************************. The people have the
burden of disproving beyond a RD, 3 CIA ordinary defenses which are also called
element negating defenses or failure of proof defenses

Claim of right defense - this is asserted by a D charged with a theft crime, who had
an honest subjective good mistaken belief (even unreasonably) that the property he
is accused of stealing belonged to him or that he had the right to take it…today in
some states this defense is not available to the crimee of burgarly or robbery, based
on public policy reasons.

I- infancy rule, at common law infancy’s a complete criminal defense for an infant
under age 7. In all states an including the fed govt, kids age 7-17 are tired in Juvi cts
where the primary goal is rehabilitation. The sup ct has held that 1. The burden of
proof in a Juvi ct req proof beyond RD 2. Juvis are entitled to consul, Miranda
warnings, right to confronation and 4th amendment protection from unreasonable
searches and seizures…but not entitled to a jury trial, because of its rehabilitative
goals. 3. The sup ct. kids are different because they are impulsive but they are less
cupbable for their criminal conduct and. A much greater capacity for rehabilitation,
thus it is a 8th amend violation against C&U for cts to impose on a juvinel A.

A. Death penalty for an infant under age 15 (at the time the homocide was
committed), life without possibility of parole a non homocide crime, mandatory life
improsoment without parole for homocides, instead of a mandatory sentcnes the ct
should look at the juvin character and any mititigating circumstances of rhe infants
involvement in the killing. However life without parole of a juvin, is permissible for a
violent remorseless juvenile, where rehabilitation simply is not possible. In most
states and in fed cts violent juv can be tried in criminal cts as adults were more
severe sentences can be imposed for murder and other violent crimes, under the US
ct where the defendant is 15 16 or 17 and has previously been convicted of an act of
violent, there is mandatory transfer to US district ct
A alibi defendant, a d charged as principal first degree, or as aider or abettor
accomplice, can claim an alibi defense by simply ascertaining she was somewhere
other than the crime scene when the crime accorded. This defense may raise a
reason doubt as to whether D committed the crime. Prosecution must prove beyond
a reasonable doubt as part of its prima facie case that the D was present when the
crime accorded and was not somewhere else. In almost every state D must give the
prosec timely notice of alibi witness, otherwise D waives the right to call them at the
trial. Sup ct says this gives the state the oppurtunity to investigate the alleged alibi,
and does not violate due process or a defendant right to a fair trial. This waiver to
call alibi witness does not percale a D from giving alibi tesimony at the trail

Except for CIA ordinary defense all other criminal law denies are affirmative
defenses which. D must prove by a preponderance of the evidence. Self defense aka
known as justification (intentional tort lecture). The justification defense is raised by
a defendant who is charged with a crime of violence but where the D claims his acts
were justified in responses to an unlawful attack or threat of attack upon the D or
3rd person. Justification prermits the use of force that otherwise is criminal, but
which udndder the circumstance was reasonable force to prevent immediate
unlawful force or conduct by another, a D must show that he subjectively believed
that force was measure aebcause the victim was using or about to use unlawful
force and the D believe was objectively reasonable under those circumstances, even
when force is justified D must also show that he did not use more force than
necessary since excessive force is not justified…..AN INITIAL AGRESOR JURY
CHARGE explains to the jury yhtat the law denies a D the right assert the
justification defense if the jury find the D was the one who first used or threatened to
use force. Deadly force is force readily capable of causing death or serious injury,
deadly force is necessary it is justified and not criminal if the D reasonnably believed
he was in inmminent danger or death or serious injury

UNDER MPC AND 16 states a person who reasonably believes that another is about
to use unlawful deadly force can not repicrate with deadly force (it is not justified) if
he knew he could retreat with complete safety!!!! At no risk to himself or to other…
2/3 of the state reject this duty to retreat…no durty to retreat before using
NONDEADLY FORCE (fist) in those juris recognize a duty to retreat, there is no duty
to retreat before using deadly force for 1. D was inside his dwelling, where there is
no duty to retreat when threatened by others (but duty to retreat on hallway, lobby,
elevator), 2. D was a police officer 3. D reasonable believed deadly force was
necessary to prevent or terminate e breaker felony or homocide. 4. Where the D was
threatened with a gun, because. A safe escape is not an alternative when faced with
a gun an attempted retreated from a pointed fire arm invitees almost certain death
(Q22 p 28). A criminal defendant asserting self defense may introduce evidence of
his victims prior violent RAT. Victims violent repuration, prior violent acts, victims
prior threats to kill or injury the D..if the D was aware of RAT it is relevant and
admissible to show the D’s fear of the victim that motivated the D violence,
reasonable belief that the victim was gonna attack the D, and the D use of force was
reasonable. If the D was unaware of the victim violence reputation or prior violent
acts, FRE allows such testimony as relevant as to who was the initial aggressor.
Lekwise threats to harm or kill the D, even if not heard by the D are admissible, on
the issue of the victims state of mind and whether the victim was the intirla
aggressor, because there is a probability that the victim acted on his intended
threats. When a crime D opens this door, by offering evidence of the victims RAT,
then the prosecutor and respond by offer evidence of A. The same RAT criminal,
traits of the crime D that he offered against the victim and 2. In a homcide case
evidence of the victim good character trait for peacefulness and nonviolence to
rebut the defendants evidentce that the victim was the initial ogress

Choice of evils defense of necessity - a D invoking thr necessitated defendants

assets he was face with 2 evils and he chose the lesser evil…in an emergency illegal
conduct may be justified to avoid an even greater harm provided the emergency
wasn’t caused by the D and no reasonable oppurtnity for the D to avoid the harm…
states are not uniform on whether the choice of evil defense is available in homocide
case, esp where D kids another to save himself…killing of one to save 2, MPC, should
permit this defense…MPC has adapted choice of evils defense, but calls it
justification to violate the law in an emergency where a D is faced with 2 evils

Entrapment most requestly arises in clandestine times - protitution, illegal gambling,

child porn, bribery of a public official, pr sale of contraband where police have to go
undercover to gather evidence and to solicit some suspect, the entrapment Defense
1. Govt inducement for D to commit the crime and 2. D lack of predisposition to
engage in that conduct…arises where Lae enforcement unfairly - originate the
criminal id, propose it, actively encourage its & 4 a dD if let salone would not of
committed the crime. The got inducement must be active, becsue entrap is more
than allowing the D the opportunity to commit the crimee…induce the defendant
conduct of inducing the crime created a substantial risk that the crime would be
committed by someone not incline to commit that crime. This is an object standard
involving substantial persistence persuasion by govt agent urging D to commit the
crime..the prosec has the burden of proven without reasonable doing rhe defendants
claims that he was. Not predisposed to commit the crime when first contacted by
govt agents, this is a subjective test based on D state of mind when contracted by
the police.

___ similar criminal conduct, inclined to buy it, predisposition….B. a willingness to

commit the crime as evidence by the D quick acceptance of the criminal offer within
seconds or minutes of the crime offer. C. Preexisting intent by the D to commit the
crime
Vague or overly broad penile statute - vagueness and overbreadth are closely
interrelated with 1st amend protections (lect 25), but not limited solely to first
amendment issue, these doctrines may apply to any criminal or civil state…a total
ban on all late eerm abortion was held overly broad, it shoulda been more narrowly
drawn to allow late term abortion for a mother health or to save her life..a statute is
overly broad if it prohibits permissible conduct, as well as prohibit punishable
conduct (fed prosec of public corrupt based on offiical receive consmations for
setting of meetings with other officials or making phone calls that officials usually
provide constiutants as oridinary permit behavoir was found overly broad)..this
honest service fraud charging a govt official with fradelnt depriving the public of
honest services should have been limited to an official agreeing to udndertake
official acts involving a formal exe cerise of govt power such as introduce
legsilsation, obtaining a permit, or agreeing to vote on a bill, is a retiree necessary
quid pro for public fcorrurption

A law prohibit registered sex offender, who had served there sentence, from
accessing any commercial website if that site permits minors to maintain a web
page was held to be overly broad. Websites are like public streets and parks and
provide a forum on which to speak listen and to check current events, a more
narrowly drawn statute would be upheld such prohibited convicted sex offenders
from going on teen dating website…a penal law is VAGUE if it fails to give an
ordinary person notice that certain conduct is unlawful, vagueness addresses the
clarity of a criminal statute, because people should not have to guess on the
meaning of a criminal law (making it a crime to loftier about, with no appeaarrent
reason…a federal law req judges to mandatory ad 5 years to a felons jail sentences if
he possessed a firearm and was previous confvicted of a violent felony which
congress defined as conduct presenting a serious potential risk of injury to another,
which the ct found to vague to be enforced.

Bill of attainder - a legislative act that 1. Determines guilt 2. Inflicts punishment

without a trial. There are 2 BA clauses in the constitution that prohibit congress and
state/local legs from enacting laws that inflict civil or criminal punishment on named
individuals or on a group without a judicial trial. (A law providing that an city official
found guilty by a majority vote of the city council shall forfeit a year salary, be
impriosned for 6 months and removed from office, is BA) (a law prohibiting convicted
felons Fromm holding management positions in labor unions or in govt agencies is
not a BA, because such laws are deemed regulatory in there intent and where not
enacted with the intent to punish that group).
Duress arises when the D is faced with the threat of immediate dead or serious
illness and the threatened D choice to commit a crime rather than suffer the
immediate consequences of the violent threat. A D acts under duress, when he acts
criminally thru no fault of his own based on a reaosnable fear of immediate death or
serious injury to himself or 3rd person. A D force to commit a crime out of fear must
show he didnt intentiallu o recklessly place himself in a situation in which it was
probable he would be forced to choose criminal conduct (ex- a coconspirator who
gets cold feet and wants to back out of the conspiracy but is then forced to
participate and had no reasonable alternative but to break the law (no reasonable
opportunity to excuse or seek assistance from the police) ….Duress is an avaulable
defense to much crime, except in most juris for intentional murder or its attempt!!
But a defense to other FIG man homocides.

EX post facto- in order to face this a newly enacted criminal law must apply to
crimes committed before the law became affective..the 2 EPF clauses I the const
prohibit congress and state legs. To determine EPF violation, cts look at the date of
the defendance crime and the subsequent date the law became effective and not at
the earlier when the law was first passed by the legs….retrocative penal laws violate
PFC If that PIED laws, P- new law makes past innocent conduct a crime, which at the
time the D committed that conduct it was legal…I- increase the punishment fora
prior crime (retroactivee death penalty- longer mandatory sentence than the
sentence imposed when the crime was committed), altering the use of evidence for a
prior crime, making it easier to convict the D, A- eliminating the spousal testimonial
privily, B- reducing the # of jurors required for a conviction (12 to 11) D- new law
eliminating defense that existed when the crimee was committed, retoactively
elimating the CUB defense for felony murder. If the criminal SOL has expired on the
D crime, if the SOL expired the state can not retroactively revive it, but if it has not
expired they can extend it without violating EPF…Does a ct decision retro actively
extending the year and a day causing rule in homocide cases fviolate the EPF, NO
because only applies only to legislative acts and not judicial decisions…..EPF does
not apply to a new civil or regulatory sanction imposed for D passed crimes or
passed conduct (a new law making a passed crime a new basis for deportation B.
disqualifying prior felons from obtaining professional license. C. Req all prior
convicted sex offenders to register with the local police. This law was essentially
regulatory in nature, promoting public safety, and not intended as criminal
punishment. Or D. Statutorily extending the length of a stay away protection order
for 5 years to 8 years for crimes committed before the statute enacts, because it
intent was not to punish prior sex offednors, but intended tot provide greater
protection for victims and witnesses of domestic violence

Withdrawal from the CRIME- renoucnination of the criminal purpose, this D requires
proof that D voluntarily abandoned the criminal plan prior to its commission, the
withdrawal must originate with the defendant and not from extraneous factors
making it more difficult to commit the crime. When D has accomplices D must
effectively anouce the withdrawal to all accomplices in time for them to effectively
abandon the crime…in a majority of states this defense is not available for the
anticipatory crimes of solicitation, conspiracy (once an overt act takes place), or the
crime of attempt (once a substantial step has been taken), but renouncatio n is an
effective defense for any post withdrawal crimes committed by other co
conspirators. In a minoruty of states and MPC, renovation is available for
anticipatory crimes, provided the D actually Dorts it by the substantive crime of
accomplices (prevent the crime from taking place)…..??????????????

mistake of fact, a D mistake of fact is a criminal defense, if the D mistake negates

the crime K mens Rea of intent or knowingly required to commit that crime. However
if the D would be guilty of another crime based on his mistake of fact, then he can be
convicted of that crime…mistaken ID as to a victim is NO defense ! (Q10 P 16)…D
saw people walk out of.a restaurant & D mistakenly thought P was wearing P caat,
he followed nigga home and quality opened window and got it to get the coat, and
decided to take it anyway (no bulqary cause no intent to commit. a crime therein

Mistake of fact is not a defense when the D mistakenly thought he was committing a
less serious type of crime

Drug dealer (sold fact drugs for 100, larceny under false pretense)

D knowing recieved stolen property think the sealed boxes contained stolen
watches, but they contained stolen cigarets…mistake of fact did not negate the
element of knowing receiving stolen property!!!!!!!!!!!!!!!! Strict liability crimes are not
excused by D mistake of fact (selling liq to a minor thinking she was an adult, or stat
rape of a consenting minor. Mistake of fact is a defense to commit a strict liability
crime if the defendant mistake NEGATED the element necessary for the crime of
attempt. …in about 1/3 of states a D reasonable mistake as to a child age is a
defense t stat rape…mistake of law - a mistake or ignorance of a penal law generally
is no defense to a crime, for example, bad legal advice given by a lawyer is not a
defense unless it negates the D mental state required t commit the crime

BRIBE K is NOT HEARSAY !

The fact that a dD was not aware of the penal law, or that his conduct was
prohibited by the penal law is not a Defense except where a D relied on a judicial
opinion of the law that was later overturned …D relied on an erroneously opinion of
the law given by an admin agency responsible for interpreting that law. 3. The Law is
so vague and the D made a good faith mistake in interpreting that law.

Defense of insanity - due process prohibits the prosecution of a mentally disturb

criminal D, who is either 1. Unable to understand the criminal proceedings against
him or 2. Incapable of assisting his consul In his defense at trial, a criminal D is
presumed competent to stand trial and due process is not violated by requiring a D
to prove his own incompentcy by a preponderance of the evidence at a pretrial
hearing. A D is not responsible for crimes committed while insane, insanity is a
defense to specific intent, general intent and even strict liability crimes. A D
asserting insanity must submit to a mental exam by the prosec, and must waive doc
patient privilege and 5th amendment privilege (self incrimination) at that exam, any
statement sthat nigga makes at that exam on issues relevant to the crime are
inadmissible and may not be used on the people DIRECT case on the Issue of the D
guilt. However after the people have rested and the defense offers testimony that D
lacked the mens Rea to commit the crime (insanity) then this opens the door for the
prosecution to offer the defendants statement from the phsyigatric exam for the
limited purpose of rebutting defense testimony on the D mental state….FRE prohibits
experts from offering there opinion on whether D did or did not have the crime K
mental state to commit the crime (whether D had the intent or ability to know what
he was doin was morally wrong) these ultimate issues are solely for the jury, but
physiatrics can testify on ____and D mental trait and flaws but the expert may not
reach the opinion that the D was SANE OR INSANE….to establish Mcnating (2/3 and
Feds follow this shit ) D must prove NOT THAT just D was mentally ill, but that D
lacked the total capacity or lack the substantial (MPC) capacity to know the nature
and quality of what he was doing, for example his mental disease rendered him
delusional, and he was unable to understand what he was doing (he thought he was
squeezing a lemon as the strangled his dad, or 2. That he knew what he was doing
was wrong (D mental disease rendered him unable to understand that his actions
were legally or morally wrong) he thought God told him to kill his father. States
differe on the definition of wrong, in some states it is not a defense if D didn’t know it
was legally wrong because everyone presumed to know the LAW

16 states use ALI- irroestiable impulse test, adapted in the MPC, which only requires
a D to prove that because of his mental disease he 1. Lacked the substantial
capacity to appreciate the wrongfulness of his conduct or 2. He was unable to
conform his conduct to the law. Thus is aniiggga can show that his mental disease
prevent him from controlling his conduct, then the ALI insanity test is satisified, even
tho he knew his conduct was wrong….17 states use both, of Mcnaigtin, 10 only use
right wrong of Mcnaight, 16 adapt MPC right wrong prong or the defend couldn’t
conform conduct to the law. 6 States have no insanity defense

Heat of Passion/ Extreme emotional Defense - EED&HOP arise from a temporary

state of mind which so enrage, inlamed, and disturbed the D mind that it overcame
his judgment and cause him to act unctronalably from an extreme provacation…EED
(MPC and 20 states) & HOP (Common law & 30 states) are similar defense that can
be raised only in an intentional murder, but not other FIGS MAN homocides. Here a D
must prove that altho his mental infirmity did not rise to the level of insanity, he
nevertheless should be less severely punished by reducing the crime from intent
murder down a voluntary manslaughter. These D do not negate, the D intent to kill.
HOP & EED require prove of 1. Subjective element focusing on the D state of mind at
the time of the killing requiring sufficient evidence hat D conduct was actually
influceiend by an extreme emotional disturbance and the D actually lost self control
(he snapped) If at the time of the killing the evidence demonstrates self control or a
plan and deliberate attack (attempt??) or escape is not consistent with this
defense..2ance . a Reasonableness of the D expalaintation for losing self control (the
extreme provaction and whether it woulda caused a Reasonable person to loss self
control under the circumstances as the D percieved them to be. Y savagely beat D,
two weeks later Y walked up to D, slapped D in the face and called him little man, Y
immediate drew a gun and killed Y. To determind whether sufficient provocation the
jury should consider both incidents. R- the HOP defense requires the D to immediate
react to the sudden extreme provacation. Thus preventing a D from reflecting on his
conduct, if any cooling off period occured prior to the killing. Then D conduct is not
considered P by HOP, but rather is premeditated and intentional.

EED is an outgrowth of heat of passion doctrine but it is significantly broader in

scope and applies to winder range of circumstances but it also requires proof of both
subjective and objective…Unlike HOP, EED doesnt have to be spontaenous but
requires a D to demostrate his mind was overwhelm by an immortional disturbance,
which inexplicably surface at the time of the homoicede

Intoxication - evidence of D involuntary or voluntary intoxiication may be introduced

to negate the mental element or intent and knowingly (he was os drunk he could not
from the intent necessary for the crime. 10 states still follow the comon law rule that
evidence of voluntary intoxication offered to disproof the required mens Rea was
inadmissible to prove the D lacked the intent or did not knowing commit the crime.
This harsh rule deters drunkennes and irresponsible behavior while drunk. Due
process is not violated by such a rule. A person is not criminally responsible for
conduct committed while involunarily intoxicated caused by disceeat, duress or D
mistake such as adverse reaction to prescribe medics…Intocicaion involve is a
defense to general and specic intent crimes, but the D must prove that the
intoxication rendered D temporarily insane depriving D of the capacity to understand
the nature and consequences of what he was doing or that his conduct was morally
wrong…a D self induce voluntary intoxication by the use of drugs or alcohol may be a
valid defense but only to specific intent or knowingly crimes and only if the
intoxication rendered the D incapable of forming the requiring mental state.
Voluntary inxtocation doesnt negate the mental element of a reckless crime and it is
irrelevant in a strict liability CRIME. After becoming voluntary intoxicated B put on X
coat, wander the bar and went home, if the intoxication was sufficeent and the jury
believes the D then it would negate the element of specific intent required for a
larceny conviction. R- if the D criminal intent was formed before the D started
drinking, and D drank to get courage up or steady his nerves, then intoxication will
not negate his intent…in most juris voluntary intoxication does not reduce a murder
to manslaughter and is not a defense to a reckless involuntary manslaughter. It can
be a defense to felony murder if the intoxication negated the spefic intent required
for the breakers feloon

Equal Protection - the EP clause of the 14 amendment prohibits states from denying
to any person the equal protection of the law, it provides a basic for challenging govt
classification which treat one group of person as inferior or superior to another
similar group. As soon s one similar class of persons is favored or disfavored, then an
EP discrimination issue arises in essence an EP clause gurantees that all similar
person must be treated alike. Even tho the 14 amendment EP clause is addressed to
states, It also applies to the Fed thru the due process clause of the 5th. There are 3
different levels of EP violates and for each violation ct use different levels of judifcal
review…SIR

To justify govt discrimination that infringes on a suspect class (RIO) or it burdens the
exercise of a fundamental interest, FAT, then the burden of proof shifts to the govt to
demonstrate that the classification is a necessary means for achieving a compelling
state interest and that the statute is narrowly drawn to achieve the govt interest.
These classifications are subject to strict judical scrutiny, there are only 3 suspect
classifications RIO. Racial discrimination, the ultimate goal of the 14 is o end racially
motivated govt action and to enact laws that are blind to race. All racially based
classification used by federal state or local govt, are subject to the cts SIR (giving
credit to black high school teachers to provide role models, and redress past racial
discrimination, was not sufficient to justify a schools policy of laying off only white
teachers. Using race as a tie breaker and placing students in one high school rather
than another violated EP because sorting people by race as a basis for telling kids
where they can go to school violates EP. Laws that classify predominately by races
(Race conscious hiring for govt jobs, or race as a factor for placing high school or
lower school in a school, even if done with good intentions is inherently suspect,
such races sensitive prefernces deny other races the opportunity to compete for
employee or attend a school solely because of there race, the govt may treat people
different csause of there race only for the most compelling reasons.. Separate
educational facilities based on race are unconstitutional at any level of education,
To satisfy strict judicial scrutiny (ct review) the govt must prove that the racial
classification serves a compelling govt objective, and that racial discrimination is
necessary to achieve that objection…Racial and enthic discrimination at the UNI
level is a compllling interest for college students to gain the beneficials effects of
diversity, but race can only be used as one factor in a narrowly tailored holistic
admissions policy and cts must apply strict scrutiny on whether the State uni has
offered sufficent evidence to prove that no other race neutral alternative would
produce the similar benefits of educational diversity…the ct struck down the use of
racial quotas for admissions into state colleges but it upheld a voter approved
constitutional amendment prohibiting their state uni from using race in its admission
policy (Sup Ct said no authority in the constitution for the judiciary to set aside a
Michigan law which delegates this issue to the voters. Any policy impacting
minorities that does not intentionally discriminate is not to be decided in a ct room
but in a voting booth…

Race in jury selection, lawyers have ultimates jur challenges to remove a juror cause
of bias or disqualify relationship with a party….each side is given peremptory
challenges allowing a party to excuse a perspective juror without articulating any
reason to ct. in Capital cases each side has 20 Preemptory challenges, and in other
felons, the D has 6 the prosecution has 3. (CIVIL CASES each side has 3!!!!!!!!!!!). a
trial cts mistake in not premmiting defense consul a preemptory challenge to strike
a juror is not. A basis for a new trial, because 1 there is not cons right to
PreChal, and 2. The chosen jury was qualified and unbiased because she was not
challenged for cause…EP limits an attorney in both civil and crime, from using race
or gender as the basis to exclude a juror by the use of preemptor chall, altho cons
only applies to state action, since jury selection takes place with the assistance and
authority of the ct it amounts to state action thus the provate attorney becomes a
state actor…denying a juror the right ot sit because of race or gender
unconstitutional discriminates against both the excluded juror as well as a party in
the lawsuit, the stricken juror does not have to belong to the same race as the party,
thus a white criminal D charged with assaulting a police officers can raise an EP if
he believes a black juror was excused by the DA for racial reasons
The burden of proving discrimination in juror exclusion is upon the party asserting it,
a hearing must be held and cts take a 3 step approach. 1. A prima facie showing that
PC were racially or gender motivated (ex- pPC strikes 10 of 11 qualified black jurors
and 9 other blacks were excused for cause) 2. The lawyer who removed the juror
must then offer a race nuetral explanation for the removal (can be silly, implausible,
fantastic reason = I didn’t like his beard or haircut), 3, the burden then shifts back
tot he challenger to show the racie neutral explanation was a pretext for
discrimination and that race or gender was the real reason for the exclusion (a white
juror with the same beard or haircut was not removed)

I - immigrants, an immigrant is a citizen of another country but is a person within the

meaning of the 14 amend, eq protection and due process clause. Congress has
exclusive subject matter jurisdiction ver immigration into the United States, its
power in plenary (complete) and cts almost as defers to congress in the s area, once
a permanent reside immigrant is legally admitted into the US (green card) then a
state law discriminating against the immigrant must be justified by a compelling
govt interest. States were unable to do so when imposing US citizenship as a
requirement 1. Public education 2. State scholarships 3. Welfare benefits 4,. Right to
earn a living, civil service requirements 5. Right to engage in a linseed profession
(lawyers doc engineers)….exception - where the state deals with the immigrant in
the area of the states political function (or in its right to governed) where the
government only has to show a rational basis to justify US citizenship as a condition
to participating in these rights. (Ex- voting in sate elections, running for public office,
jury duty, becoming a police officer or teacher (but not a requirement for becoming a
notary public..because of Cngress power to supervise immigration is enumerated in
the constitution (Mnemonic 13) specifically deference is given by the judiciary
whenever congress (NOT STATES) regulate immigration…Fed immigration
classifications are valid as long as they satifsy the easy rational basic
test. Congress has the power to exclude immigrations and may even authorize the
deportation of immigrants it deemed harmful, congress usually delegates this
authority to the president…..R- the depo of state can deny a visa without any ct
review…Congress but not states, can enact laws excluding legal immigrants from
state or welfare programs, it can also expressly authorize states to discriminate
against immigrants….to discourage foreigners from immigrating to the US, in order
for them to take advantage of welfare benefits, congress passed. A law prohibiting
most federally funded medicaid and disablity benefits to both documented and
undocumented immigrants…its allowed the states to do the same. Thus a state lae
permitted by congress could povide that federally funded medicaid benefits can be
paid only to needy, elderly and disabled indiviudlas except for legal or illegal
immigrants…
where a law discrimiates against. anatiralized citizen, an immigrant who becomes a
US citizen, because she was born I another country violates EP, unless the state can
demonstrate a compelling reason for this discrimination. (For example a state law
prohibiting a US citizen, who is not born in the US from holding public office or sitting
on a jury violates EP, since it discrimiates based oon national origin and not on
RIO….ct has ruled that US citizen by birth or thru naturalization is the same and that
citizenship can not be lost, unless voluntarily surrenders. It stuck down fed laws
revoking US citizenship or a naturalized citizen who made an 1. Immaterial
misrepetation in their naturalization proceeding 2. Voted in another country election
3. Took of residences in another country. Rule - there is one consti exception on the
basis of national origin in Art 2 of the constitution requiring that the president be a
natural born citizen

De facto discrimination - where a statute is neutral and the discrimination is not

found on the face of rhe statute from from its desperate impact, which is called de
facto disarm, the plaintiff must proof, n the law has no rational basis or 2, there was
no discrimiatry intent or purpose when the law was enacted..( ex only applicants
150lbs or 5’10 or taller can apply to be a police officer, this is nuetral on its face, but
only women can meet the requirement…the following have been held to be
fundamental interests (M7, VAT) state voting rightsa re an exclusive power given to
the states, states can cons require state resiency as a qualificatio to vote but a one
year residency requirement for voter eligibilty was n equal protection denial of the
rightto traVEL,because a one year req was not necessary to achieve the states
compelling objective, to prevent vvoter fraud but 50 days was upheld as an
alternative(less restrictive on EP rights)…When Fed state of local leg bodies are
elected by popular vote, EP requires that each voter have an eqaul voice in electing
its member (1 person 1 vote) if voting districts Contain widely unequal population to
elect an equal # of representatives then this denies the voters of the larger district
EP of the law…even tho advances in computer mapping quality make it possible to
achieve near perfect in congressional voting districts, ART 1, allows small
variations, but most be less than 1%….a Far more relaxed standard is allowed, udner
the 14 amend EP, not Art 1 in establish equality in state and federal voting districts
(10% deviation between local voting districts presumptively satifies 1 person 1 vote
EP prohibits state redistricting plans that dilute minority voting strength on the basis
of race for example dividing blacks into 2 voting districts to dilute there voting
strength (called cracking) or by cramming blacks into just one. District in order to
make a joining district safer for republicans (called packing) is unconstitutional. If
the racial discriminatory intent is prove

A- access to cts, the 6th amendment gurantees criminal D, the right to effective
assistance at a trial, but that right does not extend to legal representation on
appeals, and there is no due process to an appeal.. Appealate cts are wholly within
the discretion of state legs or congress to provide for an appellate process (ALL DO).
Appeals by criminal D, or 2 . Parents whos parental rights to children have bene
terminated can not be dependent on their ability to pay a fee. These litigates have a
fundamental right to a copy of there trials transcript, and there right to consul for at
least there FIRST APPEAL. to balance a crim D to an appeal, with the lawyer etichal
duty not to waste the cts time with a friolus appeal if an attonry assigned to an
indigent determines the appeal has no merit then consul can move to withdraw..but
to ensure the D rights have been protected,many states require that an attorny
submit a detailed NO MERIT ANDERS BRIEF, not just a letter speffically referring
tonanything that could arguable support an appeal

to enabble an appeal ct to determine if the apppeal is frivulous, if the ct agrees it will

releive cnsul but a copy of the briedf must be given to the client with notice he has
the right to proceed PRO SE…R- Supreme has held that an Anders briedf is not
constitutionally madated and states can adapt there own proceedures. ..just as long
as they adequately protect a D right to appellate review
If while a convicted criminal D appeal is pending, he dies, then under the evacuate
ABINITO due process rule, his indictment and conviction are vacated, and nay fines
paid are refunded to the decendents estate leaving the D as if he had never been
indicted or convicte

T - right to travel throughout the United States, states can not create classifications
which deter or penalize travel between the states, when a law treats a recent arrival
in a state differently from long term residents and that law involves a basic
necessity of life then it penalizes the constitutional right to freely travel fro m one
state t another and it may also violate the citizens priveleges and immunity…R- once
the ct finds a burden on the right to freely travl between stsates then the standadard
for EP and Priveleges and Immunities is the same, that is such laws must be
neccesary to further a compelling state interest. States cant condition an indigents
right to receive medicaid benefits on being a state resident for at least 1 year, this
would deter interstate travel and would violate the PI clauses as well as the EP
clause (ex- a state law that anyone in areas (arrears) on govt education loans can
not leave the state, wouldd violate EP, cause states don’t have a sufficiently
compelling interest to infringe on the right to travel, its objective could be achieved
by means less restrictive on the fundamental right to travel (obtain a money
judgment against the citizen and then cease the citizens assets within the state)
There are 2 P&I Clauses in the US constitution, 1. Is in the 14 amendment,
PRIVELEGES OR IMMUNITIES and the other is in ART 4, priveleges AND immunities…
these clauses are designed to prevent states from discriminating against out of
states citizens on matters of fundamental or essential rights & activities. The const
mandates that the citizens of each states shall be entitled to all P&I that are
afforded in all other states. The 14 amendments PorI clauses applies to an indivudla
who comes into a state with the intent to stay there and become a citizen. It gives
newly arrived citizens the same privileges and immunities that are being enjoyed by
all citizens of that states. Can favor old from newly arrived. Art 4 P&I applies to now
residents who enter another state but intend to return to domicile at the end of there
journey. May state req residency as a condition to being admitted to practice law, …
down use P&I for a plantiff who can grab, G - US govt R. Reside of the state whos law
is being challenged, can not assert P&I (to have standing to do so, the plantiff must
be a non reside or a newly arrived non resident). State X enacted a law that anyone
who is arrears for paying child support can not leave the state until the arrears are
paid, if a state X resident challenges this law it could not be a P&I challenge, but
could be an EP challenge, because the right to freely travel a Fundamental Right, A.
Aliens B. Business entities such as corporations, LLCs or partnership, THE EP
clauses and the commerce clause have no such standing restrictions thus a grab
plantiff may look to these clauses for protection, but not for P&I.  Charging hire fees
to non residents to attend a state uni or higher fees to obtain a state shooting
license, was unheld by the ct cause these interest do not involve the necessities of
LIFE and are not deemed fundamental rights. Thus a state could impose a one year
residency requirement as a condition to obtaining lower tuition at state schools

A citizens right to travel abroad is subordinate to national security and forge in

policy considerations, it is not a fundamental right equivalent to the VAT
fundamental right to interstate commerce. The right to travel outside the US is
subject to reasonable federal regulation and the ct applys the relaxed rational BASIS
test (siR) area restrictions (North Korea, Iran,) are easy for the ct to uphold cause
they do not completely restrict a citizens right to travel abroad. These forge in affair
matters are the prvoeunce of (political question doctrine, and are largely immune
from judicial inquirer or interference) …Does a Federal law that revokes or refuses to
renew a passport of a parent in arrears of child support exceeding 2500 violate
EP??? (NO because the right to international travel is not fundamental right and the
law is rarttional related to advancing the govt legit interest of collecting child
support arrears

Level 2. EP quasi suspect classification invokes an intermediate level of judical,

applies to discrimination involving GIN. Under this quasi suspect classification a
state must prove that its law serves a important govt objective and the means
employed by the state are substantial related to achieving the states objective.
GENDER DISCRIMINATION…The government must provide an exceedingly persuasive
justification for any gender classification an it mist be substantially related to
achieving that important objective in order to defeat the EP challenge…Ct struck
down this shit , 1. Exempting females from jury duty 2. Admitting only females into
state nursing schools 3. Admitting only males into a state military academy 4.
Denying unwed factors the right to oppose the adaption of his child, but granting that
right to an unwed mother. States can provide for separate sports teams, bathroom
or dormitory rooms because this gender discrimination is based on a persuade
juristification but they must be substantially equivalent facilities (defeacto, on its
intent, prove rational basis_

Illegal immigrant school age children - because of illegal entry, undocumented adult
immigrants are not considered a suspect class RIO (however discrimination against
school age undocumented immigratnts was struck down by using an Intermediate
level of judical scruntiny. By weighing the importance of education and the lifetime
hardship if education is denied the ct held that the denial of education because of
the states financial reasons was not suffiectly substantial to justify denying these
children a public education. However education is not a fundamental right, nor a
suspect classification under EP or P&I. Thus an EP challenge to an unequal
challenge is subject to a simple rational basis test, that is is the law rationally
related to achieving its educational goal.

N- discrimination against non martial children, a state must prove that any law
classifying non marital children must substantially relate to and further an important
govt interst. Laws that distinguish between a child born in marriage and anchild born
outside a martial relationship by denying benefits generally are not substantially
related to the states articulated interst. Laws denying outofwedlock niggas the right
to receive child support, 2. Public assistance 3. Benefits from a parents wrongful
dead 4. A parent workmen compensation benefits 5. Intestacy rights upon a parents
death without a will. P laws were found to reflect societies disapprovals of there
parents actions and were not supported by an important government interest

IS does not apply to MAP (10a) hich is governed by level 3 rational basis test that is
decimation based on MAP, mentally disabled discrimination, age discrimination,
poverty discrimination…all other forms of discrimination that are not level 1 or level
2,will be upheld by the ct if the classification is rationally related to further any
legitimate govt interest. Least demanding level of judical review and it simply
requires a law that has some valid function and the challenger has the heavy burden
of showing that the law is unrelated to achieving its legitimate govt purpose thus the
law is irrational . Thus at both the state and fed level any legit govt interest will
provide a con sufficient justification for that law, the govt objective does not have to
be compelling or even important. A plantiff challenge will fail under level 3, If the
state simply has a legit purpose for enacting a law and the classification rationally
furthers that purpose (making it a crimee for adults to engage in consensual sex was
found to be irrational), When strict scrutiny is used by cts it is more difficult for
states to prevail on an EP challenge but when rational basis is used by the ct states
almost always win

Examples of rational basis - after conducting extensive hearings C city determined

that physical abilities to work safely as a police officer started to deteriorated after
age 50. It passed a law that all members of the police force must retire at age 50.
Here, no EP violation, cause the city had a legitimate interst in having an efficiently
police force and the age limit was rationally related to achieving that legit goal. A
Law imposing harsher penalties for selling drugs near a school was found to be
rationally related to achieving the states legit interest of keeping drugs away from
children.

C. Tax law classification are almost always upheld, …educuational funding, most
funding for education is derived from a local tax on real estate. The allows wealthy
neighborhoods to raise substantial more tax revenue for education than poorer
neighbors, but because education is not a fundamental right and school children in
poorly funded districts do not represent a suspect class then this basis for taxing is
not unconstitutional because it bears a rational relationshjipto achieving the govt
purpose of raising venue for education….rational basis review is almost no review at
all…The following laws were found to lack a legitimate purpose and thus vilolated
EP, 1. Rape statutes exempting spouses because there is no rational basis for
distinguishing between marital rape and non marital rape….a zoning statute requiring
a place to house mentality disable people, but no special permit was required for
nursing house or boarding houses 3. Making sexual acts for consenting homosexual
adults a crime but not for heterosexual adults. 4. Granting marriage licenses to hed
couples but not homo couples. 5. Requiring new candidates runing for office to
gather more voting signatures to get on the ballot than was required for incumbent
candidates

Separation of powers doctrine, the Power of the fed govt are enumerated and limited
by the US constitution, this doctrine involves distribution of the federal govt power
among its 3 distinct branches of govt to share federal power and prevent an undue
concentration of power in any one of the 3 branches, it fosters both independences
and interdepences…constitutes a CAR< because its the constitution that 1. Creates
2. Allocartes 3. Restricts 4. Distributes the federal govt power….congress makes the
laws and the president executes them, and the federal judiciary interprets them,
each branch serves a check on the others power…The judicary can also make laws
by replacing congressional laws with new laws created in a judicial opinion.
( congress limits the executive branch by using its investigary power, appropiations
power ($) and impeachment power…example the president can not serve on matters
unless congress authorized and approves that expenditures. The judiciary also limits
the powers of the other 2 branches when they attempt to go beyond the power
conferred by the constitution …Congress law making powers are limited by the
residences veto power and Fed judiciary interpretation of those laws, limiting or
striking them down if they violate the consititiution. Under the separation of powers
doctrine, congress may not retroactively command fed cts to reopen a final
judgment. However congress may amend or repeal a federal law and can make it
retroactively applicable to pending cases even with the intent that the new law
affect a pending appeal

Political Question doctrine - Federal Cts invoke this doctrine, by declining to decide
certain issues, that are better left to another branch. PQD is primarily a function of
the seperation of powers doctrine, cts frequently invoke it on matters of forge in
affairs and national security

Presidential powers - it is congress that makes the laws, ART 2 gives the president
no domestic law making power other than 1. His implied authority to enter Executive
agreements with forge in countries 2. Implied authority to issue executive orders
considering FEDERAL agencies 3. Express authority in the constitution to
recommend legislative in his state of the union message 4. Express authority to veto
leglisation. As the executive the president thru federal admin agencies has broad
authority to issue rules and regulations to implement laws of congress and carry out
laws of the US. The president Is expressly directed by the constitution to take care
that the laws are faithfully executed. Altho congress is given exclusive leg power, it
delegates much of the rule making and policy making power to the adminstrative
agencies of the executive branch….Congress has to lay down intelligible principles
for the agency to follow but its the agency that then adopts rules and regulations to
carry out that federal law….2 set out all the rules and regulations or 2. Give it to the
admin to set out rules and regulations…once congress has delegated power to the
executive branch, it can not retain the right to veto that power if it disagrees with
the executive agencies interoperation of its law such a legislative veto violates the
separation of powers doctrine as well as the Presenment Clause in the
constitution, which states that before becoming a law all congressional laws must
first be presented to the President for signature or VETO, thus in orderr to be valid a
legislative veto would have to satisfy the presentment clause and be presented to
the presided as a bill for signature or veto. If the president does not veto a bill
within 10 days (not including Sunday) then it automatically becomes law, unless
both branches of congress have adjured for at least 10 day veto, then he has pocket
veto, because he has no place to return it, because both house of congress have
adjured. A Pocket veto kills the bill unless congress can subsequently override the
veto by a super majority 2/3 vote of congress. The power of the fed purse belongs to
congress not the president, funds in the US treasury can be spent by the president
only thru a prior congressional appropiationn. If congress directs funds be spent by
president, then he can not refuse to spend them, cause CONS requires him to take
care that federal laws are faithfully executed, He can not impound (freeze) those
funds unless the expenditure will violate a specific constitutional provision or unless
congress specifically authorize the president to exercise discretion in spending
those funds

A president in office or after leveling office, has immunity from civil damage claims
for claims involving official acts taken within the core duties of the office of the
president. These actions are protected from judicial intusion in the form of damages
for lawsuits. Question 12 page 17, rule the federal govt position is that a sitting
president can not be indicted for a crime, cause it would impermissible interfere with
his ability to carry out his constitutionally assigned duty. He first must be
impeached, removed from office and only then face a criminal trial. He has no
immunity in federal cts for his unofficial conduct not relating to his core duties as
the present, prior to or during his presidency. The president convo and
communications have a qualified EXECUTIVE PRIVELEGE of secrecy but absent the
presidents need to protect military, diplomatic or national security interest, a
presidents generalize interest in confidentiality is outweighed by a prosecutors
specific need for evidence in a CRIMINAL investigation involving the president. The
president can grant pardons for federal crime s(not state) and congress can not limit
this const power, but a presidental pardon will not stop an impeachment proceeding,
he can pardon whole classes by proclamation of amnesty, the power can be
exercised at any time. AFTER. A fed crime is committed, prior to indictment, after a
conviction or even after the sentence has been served, cant be issued before a
crimes commission. Since this would amount to an unconstitutional suspension of
federal law…

Under ART 2 appointment clause, the president has the power to appoint 1100
executive branch nominees who are principal officers, such as ambassadors, US
attornies in each federal district, judges of supreme ct, the district ct and circuit of
appeal judges, other high level superior officers such as cabinet secretaries, the
head of fed agencies and the members of federal boards. But these appointment
must all be done with the advice and consent of the senate. …it is congress that sets
the prodcuedire for inferior officers, like administrative law judges. They may be
appointed by either the president, the fed ct, fed agency board or by the head of the
agency, all other employees are not subject to the appointment clause. Recess
appointments - if the senate is in recess for more than 10 days , then because the
president can not seek it advice and consent, the const empowers the president to
temporaly bypass the prez and fill a vacancy with a recess appointment. But 1. The
appointment must expire at the end of the senates next session (2 year) and the
vacancy does not have to occur during a recess. Neither House during a session of
congress shall adjurn for more than 3 days without the consent of the other house

President can unilaterally remove superior offices (cabinet members or ambassadors

without consent of senate) congress can create new federal regulatory agencies but
it can not appoint ANYONE to sit on a federal commission or to head a federal
agency…where congress creates a fed regulatory agency where indecencies from
politics and the president are desirable (for example Fed Reserve board, Federal
election commission, Nuclear Regulatory agencies, SEC, it can 1. Provide that no
more than a majority 3 of the 5 members can be from the same party! 2. Restrict the
presidents power only for CAUSE 3/ fix the length of the terms each member can
remain in office (ex- FCC has 5 members serving staggered 5 year terms, thus a new
president does not get to control that board until 3 years into his term of office

The executive branch hires more than 4 million employees and the president can
make executive orders concerning their employment as CEO of the federal govt, he
can issue executive orders directed at the activities and employees of federal
agencies, just as long as the orders are not innoncistent with prior acts of congress,
he can declaree friday after thanksgiving a holiday for the executive branch, without
having to set congressional approval. He could not declare friday after thanksgiving
a NATIONAL HOLIDAY, since executive orders are limited only to federal agencies
and not to those outside the federal govt unless authorized by an act of congress.
Executive orders as well as executive agreements can be rescindded by a
subsequent president. The const grants the president juris over 1. Forge in affairs 2.
Exclusive juris to receive ambassadors 3.whther to recognize or to withdraw
recognition of forge in goats and to deal with them on a day to day basis

Only congress has the power to declare War, but as commander in chief the
president can make war by committing US troops to hostilities even if war is not
declared. Ct invoke PQD on whether the press conduct in this area has violated
congress right to declare war. President can enter treaties with advise and consent
of the senate (2/3 vote) and the house is NOT INVOLVED IN TREATIES. He can
terminate treaties without senate approval, he is allowed to enter EXECUTIVE
agreements with forgein countries, which do not have to be approved by the senate,
but that agreement can not contradict. A prior congressional law as atreaty can do.
This power, as well as issuing executive orders, are found no where in the
constitution, it is an implied presidential power. Both treaties and executive
agreements prevail over any inconsisted state law under the supremacy clause. The
forge in ammuluments clauses prohibits federal officials from accepting payment or
gifts from forgein govt without the CONSENT OF CONGRESS

There is also a congressional ammulumentds clause in which a member of either

house who voted to 1. Create an office, or 2. To increase the pay of a federal official.
Then she can not be appointed to that office
Impeachment - the house has the sole power by a majority vote to impeach (to
indict) the president , the Vice President, and all civil officers of the US. The senate
has jurisdiction to try that case and a conviction requires a 2/3 vote. The Chief
Justice of the US supreme ct shall preside at the impeachment trial of the president.
Only 9 federal officials have been impeached and convicted, where the result is
simply the removal from office. There is no penal sanction, thus that federal official
can then be criminally tried without violating the double jeopardy clause, because
impeachment is not. Criminal proceeding. A presidential pardon has no effect on an
impeachment proceeding. Because the constitution expressly gives the legislative
branch sole power against impeachment, then the senates conviction of a federal
official is non justiciable. Thus IS NOT REVIEwABLE IN A FEDERAL CT…
impeachment of civil officers does not include members of congress who can not be
impeached, but each house may punish its member for disorderly behavior and with
a vote of 2/3 expels that member. When the presidency becomes vacant
(RESIGNATION OR DEATH), the Vice President is automatically elevated to
president, if the vice becomes vacant. If the VP becomes vacant, its the president
who chooses a new VP, and a majority vote of CONGRESS APPROVES THAT
CHOICE!!!!!!!!!! R- if the president is unable to carry out his duties 1. He can
temporary cede his duties to the VP 2. VP and a majority of the president cabinet can
vote to temporarily remove the president allowing the VP to become acting
president. If the president objects then both houses of congress are the arbiters with
a 2/3 vote of both houses…the president const powers are found in a VETS CAP (11a)

to enact federal laws, a mere majority of both houses of congress is required, but the
constitutes requires a 2/3rd super majority vote from VP TEA. For both houses to
override a presidential veto, 2. For the senate to convict an impeached federal
officer 3. Whether a removed president is able to carry out his duties under the
25th…TEA- for the senate to ratify a treaty, EXPEL a member from either house of
congress, propose an amendment to the constitution req 2/3 vote of both houses.

Art 1 lists congreesss enumerated power, but congress may also enact all laws that
are necessary and proper to carry out the intent of its enumerated powers. This
clauses allows congress to braodly choose any apportioate means not prohibited by
the constitution to carry out the goals congress feels neccesary to carry out its
enumerated power (nothing In the const expressly allows congress to enact the
federal abrititation, federal prison system, registered sex registration act, but
congress Amy do so as a necessary means of further its enumerate power to
regulate interstate commerce…as long as that statute is rationally related to
furthering and enumerated power of congress, the supreme ct will uphold it. When
congress passes a federal law, there is an extra territorial presumption that
congress intends the federal law to apply only within the US, unless its intent to
apply it abroad is clearly expressed.
Congress has the following enumerated powers in ART 1 of the con, PIEPER FIT
WABCD - post office, congress has been granted the express authority to set up a
national postal system and under he NAP clause it can enact federal criminal laws to
punish for the illegal use of the mail.( commit fraud, child porno)

Can a state impose a state on the US post office, by enacting a tax on all delivery
services within the state (NO) because the power to tax is the power to destroy !!!!!!
Thus a state can not directly tax the property or activity of the federal govt. The
inter governmental tax immunity doctrine prohibits taxes imposed directly on one
sovereign by another sovereign. I- investigatory power used by congress to find facts
in order to pass legislation\

Enforcement of federal civil rights under 13 14 15 that were enacted just after the
civil war.

P-property power (congress has the right to dispose of excess federal real property
or personal in the public interest and to make all necessary rules involving property
belonging to the US. It can construct building or buy sell or lease real prop or
personal prop, and it can enact regulation on the sale of oil rights, electricity or
hunting or fishing on federal land

any conflicting state or local laws including building codes health codes zoning or
safety regulations are unenforceable on US property, because both property and
supremacy clause make feerals laws supreme over conflicting state or local
laws. Can states req a mining permit on federal land, when leased to a private
developer (YES UNLESS CONGRESS HAS PREEMPTED THAT LICENSING
ACTIVITY), states are free to enforces its criminal and civil laws on leased federal
lands as long as there is no conflict with federal law, E- elections, not state or local,
congress can regulate the time place, manner and eligibility for federal elections and
under necessary and proper it can regulate federal campaign disclosures. It can limit
the amount that a profit or non profit corp or labor union can make directly to a
federal candidate, but it can not limit the amount they spend on ADs favorable or
unfavorable to a candidate or contributing to a Political Actioning Committee
because spending money is PROTECTED SPEECH under the first amendment. Neither
congress nor the states can impose term limits, nor supplement the qualifications in
the constitution for becoming a member of Congress. The president is not elected by
a direct popular vote but is elected by the electoral college procedure in which each
state has a # of electors equal to the number of its combined congressional and
senate representatives. The legislature of each state determines how the electors
are chosen, they could be chosen by a vote of the state leg, but 48 state leg have
determined there are to be elected by the people of the state in a WINNER TAKE ALL
POLICY. The candidate who recieves the largest popular vote in that state recieves
100% of its electoral votes. Thus favors larger states, because with only 27% of the
national vote a candidate could win the election with 51% of the electoral vote from
the 11 largest states. THE election results are then certified in each state by a
method proscribed by the state legislature and then set to the president of the
senate, who in the presence of the house of rep simply counts all electoral votes and
certifies a winner

Raising revenue by taxing, Congress has broad power to spend and tax for the
general welfare, so long as it doesnt violate other parts of the constitution for
example 1st amendments establishment clause…under this power congress has
enacted a federal gift tax, state tax, corp income tax as well as ad varolum taxes on
the value of the performances of an act (cigarettes, liquor, gasoline, shares of stock
or weed)

In 1913 Amendment gave congress right to tax income giving it huge sums of money
to tax for the general welfare, or threatened not to spend if states do not comply
with the federal program. States have immunity from FEDERAL TAXATION, but only
for its core government activities (property used or income derived) under the states
basic government functions. School buildings, fire houses, or taxes receipt of tax
revenue can not be federally taxed

. F- fiscal power, congress is given power to balance the federal budget and to spend
and tax for the common defense and general welfare. What is spent for general
welfare is left almost entirely to congress. Congress does not have an independent
power to provide for the general welfare separate and apart from its power to Spend
and Tax…COngres is given the power to borrow and raise federal debt ceiling, but
because this is unpopular with voters, it frequently passes a bill delegating this to
the president or treasury department. US tax payers lack standing and usually are
barred from challenging congresssional spending, 2. Valid use of the spending
power is to midly encourage states, but it can not coerce them into compliance with
federal policy. The Supreme ct has held there is a difference between financial
temptation (loss of 5% of fed grants for non compliance) and financial coercion,
where the pressure of losing federal funding turns into compulsion…congress can
not force state and local officials to implement a federal program because this
commandeering violates federals and the 10th amend, congress may offer states
incentives to midly encourage them to adapt and adminster a federal program, but
states must remain free to reject the program. Thus a federal bill could not order
states to perform background checks on gun purchasers, since such a law would
violate basic principals of federalism.

Once federal fund are sent to the states with conditions imposed and they are
accepted by the states, then if a tax law conflicts awith a congressional requirement
for spending that money, or impleneitng a federal program then the state law is
displaced by federal law because of the supremacy clause. Inferior federal cts and
there procedures, the senate has the unilateral power to ratify treaties 2/3 vote
negiotated by the president, and treaties prevail over an innoncistent congressional
law or state law….because treaties shall be the supreme law of the land

Declare war by a majority vote of both houses and the president signs the
bill….COngress has exclusive power over aliens and there naturalization to become
US citizens…SUCH federal laws, unlike state RIO laws only have to satisfy the
rational basis test. The B- bankruptcy, the Constitution gives congress power to
enact uniform laws of bankcrupcty. When States ratified the constitution with the
bankrupcy Clause, they waieved there 11th amend immunity from money damage
claims arising from federal law in bankruptcy proceeding…(see 11th amend, lec 26)

Interstate and international commerce

D- district of Columbia police power (it was the consitutuion intent to establish a
federal city over which congress had EXCLUSIVE JURISDICTION….Commerce Clause
broadly authorize congress to regulate commerce among the states, Indian tribe,
forgein states. There are 3 general types of acts that congress invokes commerce
clause 1. Channels of commerce (railroad lines, electric and phone lines, navigable
waterways, highways or airports) 2. Instrumentalities of commerce (boats, trains,
planes or cars, and the people that drive or service theses instrumentalities 3. Any
activity that in the aggregate has a substantial economic effect on interstate
commerce…Commerce is the transportation of goods, services or people across
state lines. Congress can regulate activities involving international or interstate
transportation of goods services or people, regardless of whether the transportation
is motivated by a commericla purpose…crossinga. State line is in itself an act of
interstate commerce and can be regulated by congress, it can prevent goods from
entering interstate commerce or it can favor certain goods. Its power is almost
unlimited (Q18p23), CC gives ocongress power to regulate commerce but not to
compel it !….in passing the affordable health care act, congress could not base the
law on the commerce clause because that law compelled people who were doing
nothing to do something (buy health insurance) the commerce clause can not be
used by congress to regulate what people choose what to do.

COngress power to regulate activities that do not themselves constitute interstate

commerce extends to those INTRASTATE ACTIVIES that in the aggregate would
have a substantial economics effect (IMPACT) on interstate commerce. Thus if
congress enacts a compressive regulatory scheme under the commerce clause, then
it can cover conduct that has only a de minimus effect on congress and is wholly
intrastate if that conduct in the aggregate could substantial effect interstate
commerce (home grown wheat or Pot, weed)…cts usually refer to congressional
finding that a regulate activity affected interstate commerce if there is any such
rational basis for the finding. However congress lacked authority under the
commerce to regualte intrastate VIOLENCE against women, which ct found was not
economic in nature and in the aggregate did not substantial affect interstate
commercial activities…connection was too tenuous to link violence to interstate
commerce. Purely local matters….Congress lacked authority to intervene in purely
local manners that did not involve an economic activity. Domestic relations,
educational, or criminal law enforcement) Thus the ct struck down federal laws that
made it a federal crime to 1. Arson of a private residence. 2. Bribery of a local official
3. Possesion of a gun within 1000 feet of school. Sup held that gun possesion was in
no way economic activity since the law did not link the gun possessed to interstate
commerce…

Dormant commerce clause - NEGATIVE COMMERCE CLAUSE!!!!!! States are allowed

to regulate interstate commerce in those areas where congress has not acted, but a
sttate regulation can not discriminate AGAINST INTERSTATE COMMERCE or 2. Pass
a nondiscriminatory law which imposes an undue burden on interstate commerce…
The commerce clause contains an implied or dormant limitation on a states power to
regulate interstate commerce by prohibiting the exercise of a states police power
which 1. Favors local in state commerce,WHICH IS A PER SE violation of this clause
or 2. WHERE THE LANGUAGE OF THE STATE LAW IS NUETRAL AND ACTS EVEN
HADILY AND ON ITS FACE DOESNT DISCRIMINATE AGAINST INTERSTATE
COMMERCE, but nonetheless it excessively burdens out of state interest in relation
to its local benefit…that is it is discrimatoty against interestate commerce on its
impact (UNDUE BUREN, in relationship to burden recieved - OUTWEIGH) see Q 19,
20, 21…

States can not impose a tax no interstate goods, if it DOES NOT ALSO impose it on
local goods, interstate commerce can be made to pay its way, thus states may
impose a fair compensatory tax on interstate commerce roughly similar to a tax on
intrastate commerce. New Jersey prohibited importing garage from other state in
order to conserve private NJ landfills facilities (stuck down for violating dormant
commerce clause cause garbage is an article of commerce and on its face, the law
favored local interests over interstate commerce. Thus it was a per se violation of
the dormant commerce clause. However NJ could ban ALL garage in its landFILL

THE CT MADE a distinction between thestate as a market regulatory (subject to the

Dormant commerce clause) and rthe state as a (Market participate) where the state
is a buyer or seller of goods or services and is not retrivcted by the DCC, thus it can
favor local interests in the economic market..

If NJ became an owner operator of a garbage landfill then as a market participate it

would be free to favor its own citizens and charge a higher fee or even prohibit out of
state garbage…congress civl rights powers under the civil rights amendments to the
constitution - Rule, the constitution was ratified by the states in 1788 (13th 1865,
14th 1868, 15th 1870) were all enacted just after the civil war to ensure that
individual liberties and civl rights were not violated by state action. They each
contain enforcementt clauses enabling congress to pass necessary and proper laws
to enforce these amendment against state action or to create private federal claims
against state action. 15th gurantees that the right to vote may not be denied by the
state or federal govt, because of racial discrimination. Under the 15th the ct struck
down a state law that altered a city boundary by removing 400 African American
voters, but no white voters were removed…14th and 15th apply on to state action,
but 13th amendment also applies to private conduct as well as state action,
abolishes slavery, and provides neither slavery nor involuntary servitude shall exist
in the US, authorize congress to abolish all VIBES (Vestiges incidents and badges of
the slavery system), under the 13 congress enacted a federal crime to attack a
person because of his race, since It involved Vibes, under the 13 congress enacted
laws regulating purely provate conduct, to prevent racial discrimination (fed law
making it illegal to discriminate in 1. Private employment K 2. Sale of goods, 3. Sale
or lease of reality by a private seller who refused to sell or lease to minorities…this
purely provate discrimnation can be rational be considered be an outgrowth of the
slavery system

under the 14 and 15th state action may arise if a state compells, participates in,
facilitates, or enforces private discrimination (discrimination in jury selection, a
private who is engaged in state action must comply with the due process and equal
protection clauses (doc or physcarist providng medical care in state prisons, are
state actors, acting under color of state law..judicial enforcement of racial
restrictive coventants runing with the landwas held to be state action another
exception ot state action requirement is the public function requirement, requiring
private parties to comply with consti
prohibited from establishing a state religious Advancing endorse or enforcing
religious beliefes (establisgment clause, freedom from religion) or 2. Interfering with
religious beliefs or intentional religious pratices (free exercise clause)…

EstablishmentClause.- a law that adversely or favorably discriminates religious

groups, violates establishment clause and will be struck down..if a law doesnt
discriminate on its face, the cts frequently apply the Peng test….P - state statute or
activity must have a primarily secular (not religious) Purpose, as oppose to a purpose
dissaporoving or endorsing religion….Tax Exemptions for real estate used
exclusively for religious purposes have been upheld, with cts holding that such laws
have a secular purpose and effect of supporting the charitable functions of the
organizations….E - effect, the laws primary or inevitable effect can not dissaprove or
endorse religion (balance) Entaglemt. law or conduct can not Forster excessive
governmental entanglement with religion…the following nuetral govt assistance to
religious schools does not violate PENG 1. Using public school teachers to teach
remedial class to educationally deprived children in religious schools, bus transport
to and from religious schools,, 3 secular textbooks, laboratory equipment and
computers…4 financial assistance to a blind student studying for the minster,
however states may constitutionally restrict there college scholarships to prevent
them from being used by those studying for the ministry 5. A sign language
interpreter for a deaf student isn a religious school…the following violate EC -
financial grants to religious elementary or secondary schools ! However vouchers
used to pay tuition at any public or provate school were permitted, even tho 96%
were used for religious private schools. The ct has upheld grants to religious
colleges and uni finding they are not permeated by religious doctrine and that older
student will not see government assistance as an endorsement of religion…student
or clergy led prayer at a graduation or football game, because it coerces those in
attendance to participate in a state endorse religious exercise. Bible reading or a
silent moment of prayer in the classroom violates the 1st amendment, but studying
the Bible or religion in public schools has been upheld becaus the purpse and effect
are non religious (to educate and not indoctrinate)….Sharinng important
discretionary powers (eg Sony) with religious institutions (religious member on
zoning). A public school that allows student to voluntarily attend religious classes at
a school while others attend a study hall

R- references to God in state activity have been upheld, when they are deemed part
of a long standing tradition and have lost there religious signifcance overtime. EX-
opening a state legislative session or monthly town hall meeting with a prayer, even
if it is almost always led by Christian clergy

Free exercise clause guarantees the right to hold religious beliefs and opinions,
however ones right to engage in religious motivated acts is not absolute. A law of
general accipabilty does not violate the free exercise clause unless it fails a rational
basis review (ie the law must be rational related to a legitimate govt purpose (eg a
generally appibicale law prohibiting polygamy would not violate the free exercise
clause, even if ones faith required it)…a law that is not nuetral or generlaly
applicable that prohibits behavoir thata. Persons religion required or requires
conduct that a perosn religion prohibits must satisfy strict sctrumity (IE) must be
justified by a compelling govt interst and must be narrowly tailor to achieve that
interest….the free exercise clause is not violated by laws requiring 1. An autopsy
even tho it violates Jewish or Muslim beliefs 2. payment of income taxes in violation
of religious beliefs 3, immunization of children against communicable disease before
being admitted into public school 4. Medical treatment (blood transfusions for a sick
child, even if in violation of he parents religious beliefs)..thge US supreme ct found
thata. Florida law prohibiting the killing, slaiuughtering, or sacrificing or animals for
any time of ritual was not nuetral because it was intended to prohibit the practice of
the Santa Ria religious and was not generally applicable, because it did not prevent
cruelty to animal (only those related to religious sacrifices) the ct applied strict
scrutiny strikes down the statute because the govt stated goal of sanitary disposal
of animal remains could be achieved thru less restrictive means

The free exercise clause protects against indirect coercion or penalties on the free
excericse of religion, a state can not condition the receipt of an available benefitt on
the recipenants non religious character (for example, religious schools must be
eligible for playground resurfacing funds, like all other grant recipeants….cts apply a
rational basis review of free exercise challenges with 3 exceptions 1. In 1993
CONGRESS passed the religious freedom restoration act requiring a strict scrutiny
analysis of free exercise challenges of federal statues (RFRA is not applicable to
states) on the exam be sure to consider whether a free exercise challenge is against
a federal or state statute (federal statute that infringes on free exercise right then
use STRICT SCRUNITY) (if state and its generally applicable, then rationale, if direct
then STRICT)US sup ct held that a statute requiring a closely held corp to provide
insurance coverage for contraceptives in violation of the owners religious beliefs
violated the RFRA, because even tho congress may have had a compelling interst in
insuraning the availibitly of contraceptive to women, congress could have achieved
that interest thru less resrtictive means..congress also passed the religious land use
and institutionalized persons act, requiring strict scrutiny of STATE LAWS related to
1, religious land use and 2, institutionalized person…applicable to states because it
was passed under congress spending power…States can establish a compelling
interst in controlling cost or mainitaing prison safety by smbuiting detailed evidence
of related cost or safety concerns, but the cts will reject unsupported claims
allegating EG - that providing kosher meals is too expensive, or tat allowing an
inmate to have a half inch beard will promote the flow of contraband in to the prison

Minister exemption with exemption religious from employment discrimination

religious laws, for employees who have a voice in conveying the religious message
and carrying out its mission, a church decision to fire to hire and proscribe duties of
its ministers is constitutionally protected 3. The law intentionally discriminates
against religious practices and beliefs, in which strict scrutiny is applied. Which

While cts can resolve issues of property and K disputes involving church groups, the
US sup has ruled that the judicary must avoid deciding any questions of religious
doctrine or the church hierarchy

Altho not provided in the con - protects is afforded to freely associate with one
another in political radical or subversive groups …an organization by its formation
sends an expressive message, thus it can not be forced by state law to accept
unwanted memebers who are incompatibility with the groups mission and expressive
message (homosexuals in the Boy Scouts

The right of free association protects public employees from being fired for
politically motivated reasons (eg for failing to support a political party or its
candidates, unless party officialiation and loyalty are requirements for effective
performance fo the employees job…employees in policy making decision can be fired
for politically motivated reason (press sectary, speech right, police commissioner,
county attorney,,,BUT NOT A PUBLIC defender…political affiliation can not be basis
for hiring or promoting low level public servants (eg secretary, clerk or teenagers
hired fr summer jobs)…joining groups that advocate violence or govt overthrow is not
per se illegal, because it indicates nothing more than a person abstract belief which
cant be punished….a state is prohibited from inquiring about an person mere
associated with subversive groups as a basis to withhold a right or benefit (eg to
become a member of the bar) RULE_ to criminally punish such supervise
assocaitions, the govt must prove that the person has 1. Knowledge of the groups
illegal goals 2. Intent to assist in carrying out its illegal goals

Govt can make it a crime to CRIM K knowingly provide any material support to an
organization classified as a terriorist prop..support includes not only guns or money,
but also benign services like how to handles problems or build a house, such support
frees up other resources in the terrorist organization that may then be used for other
violent ends
UNCONSTITUTIONAL interference with speech is classified under 2 types of statutes
1. Content based regulations or 2, content nuetral regulations…regulations that
distinguish speech on the basis of its content are subject to strict scrutiny (they
must be narrowly draw, necessary to serve compelling state interst and the least
restrictive means of carrying out that interst…a state law punish flag desecration is
content based, burning a flag us symbolic content speech…the states interst in
perserveing the status as a national symbol and concern for its communicative
impact (potential breach of the peace) are not suffienciently compelling

A federal statute prohibiting the registration of trademark that disparage any person
living or dead, was declared unconstitutional because it singled out a subset of
messages for disfavor based on the views expressed

Requiring an individual to display message proscribed by the state is compelled

speech, and such a requirement must be supported by a compelling state interst

Public schools can not force student to participate in the pledge of allegiance and it
is unnecessary that the refusal to participate be based on religious beliefs…A cali
statute that required license family planning clinics to deliver a script informing
patients about the availability of and where to obtain a state sponsored abortion was
struck down as compelled speech !! The states interest in providing info to low
income women was not narrowly drawn and could not withstand a strict scrutiny
analysis…an Illinois statute that forced non union memebers to pay 78% OF union
dues to the union for representing all employees, was struck down as compelled
speech, because some paying nonmember did not support union positions but were
compelled to subsidize them

The 1st amendment does not protect speech that is fraudulent inflammatory,
obsecene, fighting, or integral to criminal conduct (bribes threats or solicitations)

Content neutral regulations restrict speech regardless of the message conveyed,

regulations that are content nuetral are evaluated under a less stringent
intermediate scrutiny, and will be upheld if they are SON (S restriction must be
justified by a significant govt interest unrelated to the restrict speech - public
safetym aesthetics or smooth flow of traffic)…O- must leave open ample alternative
channels of communication and the regulation must be narrowly drawn to further the
content neutral goal, but need not be the least restrictive means of doing so…
example it is a state crime t start a fire in a public building, and P a protestor burned
a copy of the US constitution in the county ct house, even tho it was expressive
speech, the law was content nuetral, narrowly tailor and furthered a substantial govt
interst (safety), thus P could be prosecuted…a state statute prohibit registered sex
offenders for visiting common social networking sites (fb, linkedn) was not a
narrowly tailoredd restriction on TIME PLACE AND MANNER and was declared
unconstitutional

R- in traditional public forums, such as streets sidewalks or parks. The GOVT can not
completely restrict speech. But the state can reasonably and unifromly (content
nuetral) regulate the time, manner and duration of such expression (SON) a ban on
an entire form of speech (eg leaflet) in a public forum will be struck down..Non public
forums such as schools post offices or ct houses may be placed off limits to all forms
of public expressions (speeches, leaflets, pamphlets, handouts) any restircitoon on
speech in a non public forum must simply be reasonable and not an effort to
suppress the speakers views \

If the govt opens a non public forum to range of expressive activities, it is

considered a designated public forum and the same limitations on regulation of
speech for public forums (content based and contend nuetral apply….The govt may
limit acess to a designate govt forum, to certain classes of speakers or types of
speech, but it may not discriminate on view point (these are called limited public
forums’ nd restrictions must be reasonable and vie point neutral (ex a school may
limit access to rooms, to school related activities, but could not preclude a religious
group from meeting

The govt can require a permit for speech in a public forum if there is a significant
reason 2. The permitting authority has NO DISCRETION in awarding permits…There
are clear criteria for awarding permits, and applicants obtain quick judicial review of
permit denials…a citizens right of free speech does not allow trespassing onto
provate property to protest, shopping malls are private property, thus the owner can
free prohibit or regulate demonstrations at a mall
Government speech - as a general manner, when it speaks it entitled to promote a
program, espouse a policy or to take a position. The govt can not be force to display
an image, scupture or painting on public property, because what is displayed
conveys a thought and speaks for the govt

Political speech - restriction on political speech, including spending money are

subject to strict strutiny. Limits on camp gain contribution are permitted only to
prevent quid pro quo corruption (eg - exchange of money for a favor) or the
appearance of such corruption. Regulation limiting contribution directly to
candidates have been upheld, if there is no direct coordination between the
contributor an the canditiate however, regulations are struck down (eg contribution
to political action committees are OKAY….the US SUP has held that the possibility
that an individual that spends large sums of money on elections, may garner
influence over or access to political officials or political parties, does not give rise to
the appearance of qui pro quo corruption. Restrictions on expenditures by corp and
unions have been declared unconstitutional. Laws prohibiting judical candidates
from personally soliciting funds for there election can be upheld (ie survive strict
scrutiny) because the states interst in preserving public confidence in the judicary
extends beyond its interest in preventing the appearance of corruption in legislative
and executive elections.

Speech in schools - student get less protection under the first amendment, school
officials can not prohibit purely political speech unless it would substantially
interfere with the approbate discipline and operation of the school (arm bands
protesting the war -political speech - could not be prohibited, since they did not
cause material disruption, but wearing an anti gay T shirt would be disruptive and
could be prohibited…school officials can prohibit lewd speech, speech advocating
illegal activity, 3. Speech that is part of the school circular (eg the school can
exercise editorial control over school sponsored publications or theatrical
productions

Prisoner speech, the govt can restrict the speech of prisoners as long as the action
is reasonably reaated to a legitimate penological interst, under this standard almost
all restrictions are upheld )prison officials cna limit communications amongst
prisoners, can limit there guest, and can limit the publications they receive in order
to promote prison safety and discipline
Govt employee speech recieves less 1st amend protection that other forms of
speech, there is no protection for govt employees speech made on the job in the
scope of employment !!!!! When public employees make statements outside the
scope of there official duties the 1st amendment CAN shield them from employer
discipline. If a govt employee comments on matters of PUBLIC concern, the ct will
balance the interst of the employee as a citizen against the needs of the govt
employer in performing govt services. If not of public concern, it is not
PROTECTED!!!!!!

If govt employee is fired or demoted for speech made outside the scope of her
official duties, the employee must prove that the punish was motivated in reponse
to her speech, if she does this, the employer must show that the action would have
been taken even absent the protected speech..if an employee would have been
hfired for other reason, she wouldn’t be speared cause of her speech…the govt can
restrict and disclipne it employees for using disruptive vulgar or rude speech to
fellow employees or memebers of the public..govt as employeer has an sufficent
interest in dealing with

employees

Speech advocating illegal conduct, first amendment protects subversive speech

advocating the use of illegal force or conduct except where it is 1. Intended to
produce imminent lawless violent action and 2. Under circumstances that is likely to
incite or produce such actions..WHEN both the speaker and the listener are
inevitable proceeding towards a breach of the peace, the duty of the state is to
punish the speaker that refuses to desist after apporpiate warning. R- first
amendment rights can be subordinate to the compelling interst of national sec, when
espionage is directed by terrorist aginst the US, ct balances gravity of danger
against its probability of occurring, in such situations the danger has to be clear and
present, thus such speech can be punished even tho it is only in the preparatory
stage. Presently adovatiing future acts of terrorism can be prohibited and punished,
if that speech is likely to incite and produce future lawless action

Fighting words are a narrow classification of words that make the listener want to
immediate punch the speaker..only speech that is directed at a specific person and 2
likely to produce a violent response qualifies as fighting words that lack 1. Amend
protections (flag burning or fuck the draft are not considered direct insult that would
invite a fight. Where the possibility of violence does not arise form the content of the
speech but from the anger reaction of the crowd then the first amend imposes a
burden on the state to protect the speaker and control the crowd, the speech can be
silence only if this protection is insufficient to meet the forseeable disorder of the
crowd
Conduct that communicates, the government can regulate conduct that
communicates if it 1. Has an imprtoant unrelated to the suppression of the
message and 2. if the impact on communication is no greater than necessary. Cross
burning is protected speech and can not be completely outlawed, but the govt may
prohibit when it is down with the intent to intimidtte and constitutes a true threat…
government may permit a jury to impose greater punishment when there is prove
that a victim was chosen because of her race religion or sexual orientation, such
enhancements are directed at conduct not speech!!!!!!!!! Not all conduct is
expressive (eg- statutes can prohibit public nudity

Commercial SPEECH - the first amendment provide less protection to commercial

speech than to other forms of expression, commercial speech that is false, deceit,
or unlawful activity recieves no protection and can be prohibited by the govt, for the
govt to restrict commercial speech that is not misleading or advertising lawful
activities it must satisfy an INTERMEDIATE level of scrutiny (STAN) the govt must
have a substantial interst for restricting truthful commercial speech, T. Advertising
must be truthful and concerning lawful product or service, A. Restriction on
commercial speech must Materially advance the STATE substantial interst (ie there
must a reasonable fit between the states goal and the restrictions used to maintain
that goal. N- regulation must be narrowly drawn and can be more extensive than
necessary to achieve its substantial interest.

PRIOR RESTRAINT OF SPEECH - prior restraint on speech and publication are the
most serious infringement on 1st amendment rights, a prior restraint is an
administrative system of judical order that prevents speech from occurring in
advance of the time that speech is to OKURRRR (eg- license and permit
requirements or ct orders enjoining speech)

There is a heavy presumption that an injunctionn restraining speech is

uuncontstititonal, because the injuries P usually has an adequate remedy at law, and
the injunction would violate the D first amendment rights. Enjoining the publication
of a news story is the essences of censorship and is allowed ONLY for national
security, and only if a publication would result in direct, immediate and irreparable
damage to the country…cts generally will not enjoin defamatory speech, but a
number of appellate cts (state and federal) have permitted injunctions on defamatory
speech after a FULL TRIAL has decided the speech is defamation
Ct has permitted this to be enjoined, COPYRIGHT Infringement, OBSENCE FILMS,
FRADUELENT OR FALSE COMMERICAL SPEECH (doesnt enjoy 1st amendment
protection), attornies OUT OF CT STATEMENTS ESP AT THE EVE OF TRIAL, which
can pose a serious threat to a fair trial

OBSCENITY - SEXUALLY EXPLICT PICTURES AND OBSECITY ARE NOT censiomus

(CENONIMUS), obscenity is hard core porn and don’t receive 1st amend protect, ….3
pong test for obscenity (material must present and portray sex in a
patently offensive way..2. the material when taken as a whole by a perosn of
average sensitivity and applying the community standard appeals to the prurient
interst (excessive interst in sexual activity) of its intented audiences (incites lewd,
lecivisous and lustful thought) 3. The material when taken as a whole lacks serious
literary, artistic, political or scientific value (THE WHOLE, NOT SOMEEEEEEE) R- a
majority of cts determine offensiveness and pureness by referring to
contemporaryary local community standards where the obscenity was found…a
material is obscene and not const protected if MA SLAPS PA

SEXUAL Speech - the supreme ct allows the govt to restrict sexual speech that
doesn’t rise to level of obscenity (EG adult book stores, movie theaters) if the govt
has a substantial govt interest, and allows for reasonable alternative aveneues of
communicating. Zoning laws to prevent adult establishment within 1000 feet of a
residential zone, school or park, where the ordinances are intent to prevent crime
and not suppress the expression of unpopular views…if an ordinance requires an
adult business ot Get a license, then to satisfyy 1st amend, a denial requires a
prompt 1. Judicial review and 2. Judicial determination….private possession of
obscene material can not be prohibited, but state can prohibit the private possession
of child porn (content based regulation) because the states compelling interest is
not to protect the review but to protect minors by destroying the market for sexual
exploited children

VAGue and overly broad statute - a vague statute restricting free expression offense
the 1st amendment for 2 reasons, it fails to provide a reasonable person guidance
regarding what speech or conduct is prohibited, thus it puts a chilling effect on valid
speech and 2. It fails to give adequate guidance to law enforcement and allows
abritatly and discriminatory enforcement…a statute is overly broad, if in addition to
speech or activirties that it may constitutionally prohibit it also prohibits other
speech or conduct protected by the 1st….a law making it a crimee to oppose or
interrupt a police officer in the line of duty was held to be overly broad. R- an
overbroad or vague statute may be cured prospectively by a ct narrow interepation
of the language. The Cts opinions supplants the actually language in the statute.
Subsequently the sup ct will look to the judicial interpretation in deterring the
statutes constitutionality
Expedition to stature of fraod (specially modified goods - circumstances indicating
the goods where made for the buyer, the seller has made a substantial beginning or
has made a commitment for their procurement, goods not suitable for resale to
others in the ordinary corse or sellers business

Duress -exercise or threatened exercise of a legal right doesn’t not amount to

durress

Economic duress- involuntary agrees, no alternatives, circumstances were the result

of coercive acts of the opposite party

Undue influence - no threat, just using relationship

Infancy - insurance, bail bonds, out of wedlock child support agreement, student
loans...mere non speaking once 18 is not enough to implied ratification, unless
needed to speak to prevent unjust indictment...restitution - return the benefits,
unless it’s gone, then dude can’t recover any consideration already given (necessary-
medical, food, clothes, shelter; parents weren’t providing adequately , & relied on
promise to pay , fair market value)

Mental - couldn’t understand, incumplsion and dude knew...adjudicated void, non

adjudicated voidable..full restitution

Drunk/ other party knew they were drunk

Financial difficulties, economic hardship not n excuse

Conditions are excuses it bad faith prevented it

Option contract - must be strictly adhered to

Can’t assign rights that don’t exist yet

Anti assignment - doesn’t matter, as long as you fully performed, but if not
completed, then anti assignment rules

Bear assumptions are not entitled to fat drip, specific facts must be included in
complainnnnt, so they nudge the complaint n. From concealable to the
plausible. Thus conclusory allegation will be ignored by ct. ex- Defendants conspired
to deny P civil rights

One response to deficit complaint of facts, is to move to 2F motion for more definite
statement. But they usually move to dismiss under rule 12B6 for failure to state a
claim.
When claim involves allegation of fraud or mistake, 9b require those claims to be
pleaded with particularity. Thus the plaintiff must 1. Detail the statement or
omissions that the P contends are fraudulent 2. Identify the speaker 3. State where
and when the statements/omissions were made 4. Explain why they were fraudulent
(must be specifically pleaded)

The complaint is the first pleading served, and the P can assert any related or
unrelated claims against the D. Claims can be pleaded inconsistently, alternatively,
or even hypotehcucally.Pleading a claim for breach of contract and also a claim for
quasi contract. The complaint must set forth the basis for the ct SMJ (CAT/DJ) but
doesn’t have to set forth the basis of MOP procedural jurisdiction.

RACE to the ct house, what if 2 litigatnts go to Fed or state ct and sue simultaneous,
each asserting substantially similar claims. P (DJ =) goes to fed and sues D about the
same time D goes to state (Y) and commences the same claim. Remedy is a motion
to stay or dismiss one of the actions. In the interest of Jud economy (same party
same issues) first to file rule gives rise to strong presumption that first file has
priority; 2nd filed should be dismissed. DE MINIMUS RULE (hours or days apart)
weakens presumption of first filed rule but usually does not eliminate it.  Under
anticipatory file exception, where X was threatened with a set deadline & in
anticipation of that threat and suit and to gain home field advantage X Immediately
commences a deflationary judgement action, asking the Ct to declare X is not liable
to Why. Under here, why 2nd in time suit is given pefernce

D answer is the 2nd pleading served, it may contain affirmative defense. May assert
any related or unrelated counter claims against the P. A P doesn’t respond to a D
answer, unless it contains a counter claim which must be answered within 21 days
(24 days if served by mail). Counter claims, defendants claims asserted against a P
contained in a Defendants answer, a D claim against a P that arose out of the same
transaction or occurrence pleaded in the P claim, is a compulsory counter claim that
must be asserted in the D answer otherwise it is WAIVED. Unless the Plaintiff claim
is based on Quasi in rem Juris or In rem juris, then that related counter claim isn’t
compulsory. OR the related counter claim required joinder of a related 3rd party, over
whom the Ct can’t acquire Pro Juris (NO CHILI). Fed counter claim, just like
complaint must briefly set forth the CT SMJ to hear the D claim.

For purposes of SOL, the timeliness of any counter claim is measured back to the
date that the P complaint was first filed with the state or FED court if the D counter
claim was timely on that date then it is not barred by the SOL. Even if D counter
claim was time barred by SOL, when the P commenced the action, it may
nevertheless be asserted in the D answer, provided it it related to the claim. Value
of the time barred related counter claim is limited and can be used by the defendant
only as a OFFSET to reduce the plaintiffs judgement, which is referred to as
equitable recupment. ???????????????????????????

Amend or supplement a pleading, freely granted, unless the added claim is futile and
deficit, and would not withstand a motion to dismiss 2. Would predijude the opposing
party, because of the parties delay in seeking the amendment/ any motion to amend
or supplement a pleading must be followed by a copied of the new proposed
pleading, clearly highlight the differences between the original prleading and the
proposed pleading

A year after the D answer was served, can D make a motion to amend the answer. To
add the statute of limiti=ation as affirmative defense. Mere lateness is usually not a
barrier to amending a pleading. It MUST BE lateness coupled with substantial
prejudice, resulting from the delay which prejudice could have been avoided, if the
Pleaded had been properly drafted when first served. Every pleading may be
amended once, as of course, without having to go to ct, to correction errors or
omission, add new claims, add omitted affirmative defenses, or add new
party (within 21 days after pleading was SERVED, which restarts the 90 day time
period to serve the D under rule 4m) or within 21 days after the opposing P serves a
response to the pleading or alternatively at the P option, within 21 days after the D
makes a preanswer motion to dismiss or a 2s corrected motion. Thus If D makes one
of these motions, the P can immediately corrcc the Defense, and serve an amended
complaint to moot that issue. Where an amended plead is sumbit to preanswer
motion to dismiss or corrected motion, the Ct considers that only amended
complaint as tho the original complaint had never been served. If amended pleading
requries a response, must be amended within 14 days of service of the amended
pleading and failure to reply to an amended complaint, a Counter claim or 3rd P
complaint, may result is Default Judgement. If. Ct scheduling order sets a pleading
amending deadlined (barred date) then any motion to amend made after that date
should not be freely given, but is granted only to modify the scheduling order, which
requires good cause for the delay in moving so late to amend the pleading. Prior to
serving an answer D moved to dismiss based not he SOL, the ct denied D motion
and D served an answer within 14 days. D (think P) then served an amendment
complaint within 21 days from service of D answer.
D serves a new answer to P amended complaint, asserting lack of MOP juris as a
defense. P moved to dismiss D mop defense as a matter of law, the Ct granted P
motion because D juris defense should have been raised in D earlier motion to
dismiss, and by failing to do so, D waived the Juris objection.

P sued D, and D timely served an answer, with no Affirmative defenses, 2 weeks later
D realized her mistake and amended the answer as of course to assert the MOP juris.
D is entitled to do so, because an amendment as of right relates back to the date of
service of the original answer & D timely, within 21 days, amends the answer as of
course. Difference between amended pleading and supp pleading. Supplement
pleading adds a claim that arose after the service of the pleading sought to be
supplemented. Can be supplement only by stipluation by the parties or by Ct order.

Cross claims are used when a P sues multi D & one D asserts a related claim against
the other. Only related cross claims can be asserted. Only fi D cc arose out of same
trans or occurrence asserted in P complaint….asking jury to apportion the D
fault. CC has to be answered by a co D. All Fed pleadings containing claims (a
complaint, CC, impleader complaint & interpleader Complaint or cross claims) must
be answered and all allegations in those pleadings that are not specifically denied
and deemed admitted.

7th Amend, provides that in fed cts, the common law right to a jury trial is preserved,
this includes the right to have a jury denied liability and to rdeterm the amount of
damages. No jury trial for equitable claims (specific performance of a real property
contract, injections) jury ttrial for plaintiff where seeking money damages, where
both (facts common to both claims must be tried by jury first, those findings are
binding on the ct when it decides the equitable claims), Fed judge can not seek less
than 6 jurors nor more than 12, and must be unanimous unless agreed otherwise.  If
serious doubt about juror bias to render inpartial verdict, then a challenge for cause
must be granted by Ct and likewise if he response that she is not sure, then absent
an unequivocal statement that she can be fair and impartial then she must be
excused by ct for cause. Fed civil case 3 peremptory

Jury demand must be made within 14days after the last pleading is served.

June 20 dismiss, July 10 amend, aug 1st denied dismiss, aug 10 D serve answer, Aug
20 P jury demand (within 14 days from when last pleading was served)
After jury reach verdict, even after all signed sheet, Ct must grant party request to
poll em in open court. To ensure the verdict was unaminous. Judge must instruct
jury on the law, and also on the application of the factual contingent of the parties to
the legal principles charged by the ct. on appeal, under preservation rule a jury
verdict will not be set aside because of a judge erroneous jury charge, unless that
error was preserved. See evidence lecture. RIGHT TO JURY trial can be waived in a
contract.

Case tried by a judge, then for purposes of appealiate review that judgement must
contain the judges finding of fact and conclusions of law, upon which the Ct
judgement was based. More than 97% of civil claims settled to be binding the
settlement must be in a signed writing or made in open court. Courts consider the
following factors to determine whehther the following parties intend to be bond by
settlement agreement placed on the record or in an email between the parties 1.
Expressed reservation of rights not to be blind until a signed writting was executed. I
accept your 1000 offer and cancel EBT scheduled for tomorrow pending preparation
and execution settlement documents. 2 partial performance of the settlement
agreement. Whether all terms were agreed upon or whether they were issues left
unresolved. 4. Whether the settlement was sufficiently complex to where it would
usually be committed to a writing.

Intervention - used by someone who is not named by a party in a lawsuit, but who
wished to become a party, obtained by a motion/ as a right/ by permission, motion
must be accompanied (setting up claims or defenses for which intervention is
sought)

Intervention as a right- interest in the property or transaction that is subject to the

pending action …If the non party is not allowed to intervene & the intervening party
interest will not be adequately protected by the exiisting parties. Example
judgement may adequately protect, by determiningg title or claim in which the
intervening Party has an interest?????

Govt granted a party a zoning variance a contact or a Govt license but a 3rd Party
sued the govt alleging that all the required steps were not properly taken and that
the zoning variance the contact or the license should not have been granted to the
3rd party. The 3rd party to whom it was granted can intervenee as a right, because
here interest may not be adequately protected by parties in the lawsuit. The right to
intervene is covered by federal statute, example the US attorney has the right by
federal statute to intervene in any suit challenging a federal statute. Whenever the
constitutionality of a federal state or local statute is attacked (usually in a.
Declaratory judgement action). The party challenging the statute must over come
the constutionalut of proof beyond a reasonable doubt.  Intervention by permission
arises where the interning party has a claim or defense and shares with the pending
claim a common question of law or fact & intervention will not unduly delay the
pending procedure. Here the ct has broad discretion

Consolidation rule 42 -when separate pending lawsuits in the district which have
common question of law or fact and the ct orders them consolidated into an action.
(What if different D & P)??????????

Same federal districted, first in time rule doesn’t apply. Consolidated it.

Fed its look to the judical panel on multi district litigation to consolidate pending ct
claim, in different district, where each one has 1000 of plaintiffs assert massive
claims???

Interpleader - used by a stake holder, someone holding property or funds for another
and who is threatened with multi inconsistent lawsuits for the same fund (used by
banks, issurance companies, escrow agents)

Positive interpleader- stakeholder commences an interpleader acton

Defense interpleader - stakeholder is sued and she inter pleads all other plaintiffs
involved

After all plaintiff have served answer, stakeholder can make motion to be released
from lawsuit and awarded costs including reasonable attorney fees to be paid for
state. Entering a federal ct under rule 22 can be based on DJ or CAT. If passed on
dj ,the stake must exceed 75k, ct must have MOP juris over all claimants. Complete
diversity and fed venue rules apply
Under the federal interpleader act, congress has provided arising under CAT juris for
plaintiff to enter a fed court.

Stakeholder may enter a claim under this act, minimum diversity, over 500$. SH
citizenship is disregard, as long as any 2 adverse claimants have diverse citizenship,
the Fed Ct has SMJ. Venue is proper in any federal district where a claimant resides.
Service under this act is nationwide. P DOnt have to rely on CHILI
rules!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

Imp leader - involving 3rd party practice, A plaintiff is free to choose which D to sue.
But once a D serves an answer to complaint, the D may bring into the suit (implead)
anyone who was not named in the original complaint, but who is responsible in
whole or part for the plaintiff injury & thus is liable to original P. Rule 14, is based off
derivative liable and not independent liable.????? Where the 3rd D is oblidgated to
indemnify or pay contribution to the originally name D, who is not 3rd party P, for
causing the original plaintiffs injuries.

Rule 14a expressly provides that the 3rd P impeder claim, must depend on the P
pending claim. If unrelated to P pending claim, then the court shall dismiss the 3rd
PC….seeks to, the liability assert. USED only where the 3rd P has not been named as
a 3rd party, otherwise a cross claim is the correct one for related against a co D
named.

D that impedes 3rd P, draws 3rd P summons and complaint to clerk (350), then 3rd
Party P is SWAP with that pleading. Together with all prior pleadings in the action,
within 90 days from filing the 3rd P process with he Fed clerk….3rd P must
simulations mail to original P attorney ???

…if doesn’t in plead within 14days after serving answer to P, then need ct
permission. Original P can amend complain at anytime, to add 3rd D as a named
Defendant.
Imdenification -right to shift the entire loss onto another. May be expressed in
contract or implied by law…Expressed indemif- contact provides that one will hold
the other party harmless, from any claims arising outta relationship. Strictly
construed. Corp frequently enter into indem agreements,

PermsiiveCC may not remove to Fed, Ct are divided when its a compulsory CC (cross
or counter???)

POPE

Lisp pendency0n protect infested which could be lost to bonofide purchaser prior to
p judgment…money damages directly affect ownership, use or posession of reality
(then can’t file LP)

Cant be filed where P is suing landowner for money damages, because money
judgement doesn’t affect a D title use or possession of reality. LP -simpliest
provisional remedy, file one page doc, where the real property is located

LP- P not required to be an SLOB (sheriff not involved, L likelihood of success on

merits on claim not reviewed by a ct. some ct require a ct review.

Job injunction 5 years, then ct can check public policy

Replevenin seeks to recover a chattel, where the P claims a superior right to the
chattel. Ct can grant a prejudgment censure of the chattel (Fed Marshall)…
additionally, a plaintiff can seek to recover damages and rental value during time the
D wrongfully possessed it. P may sue for the tort of conversion, the measure of
damages is the value of the good on the date it was converted, unless the channeled
had a fluncuated value (shares of stock) allowing the plaintiff to recover its higher
value at the time of trial. Both claims can be asserted in the same complaint. Must
elect just one claim before the issue goes to the jury (replevin or conversion)
Due process requirement for provisional remedies: before a ct grants a pro remedy, it
must ensure that due process is satisfied (COP)= Clear and convincing evidence that
the P is likely to succeed and is entitled to the Pro remedy, because of extra ordinary
circumstances,,,O - opportunity to be heard P….it litter was obatined ex party, and
immediate post seizure hearing is required (5-10 days). If a creditor has a security
interest in a. Defaulting debtors goods, but the creditor can not exercise self help
without a breach of the peace. (Then the ct remedy is an order of replevin to seize
those goods) (see secure trans)

Pre trial discovery - devices in fed ct (MR AID) - a demand for mr aid discovery of a
party or non party, must allow 30 days notice to comply with that demand (add 3
days, if by mail) !!!! LEARN that mail shit….scheduling conf, 90 days from
commencement of the lawsuit, or 60 days from a D MAN appearance. Judge or Fed
Mad judge must hold a scheduling conf and must issue a scheduling order
containing ABCD (settlement possibilities, a MR AID discovery schedule - including
ESI electronically stored info, efforts to narrow the issue, claims or
defenses…..review the automatic disclosure required by the parties (See #2 below).
The scheduling order usually fixes a BAR date, after which date unless for good
cause, new P or claims cannot be added, pleadings can not be amended, and all Mr
AID discovery must be completed. discovery has 4 stages - as soon as practical, but
at least 21 days prior to scheduling conf, the attorneys must meet and confer to
formulate a proposed scheduling plan to be discussed at the scheduling conf. If ESI
is involved whether TAR can be agreed upon.

Within 14 days after the conf, automatic disclosure without any request of (ABC) A.
A list of any witnesses having info to support a party claim or defense, a list or
copies of docs, or tangible evidences that a party possesses that could be used to
support a parties claim or defense. C- a calculation of damages and how it was
computed. D copies of all liabilities insurance polices that may provide coverage for
a judgement.

 90 days before trail , provide a list of experts witness retained to tesify

at the trail together with the experts report, that must contain
an OOFFER (experts opinion, other cases in the last 4 years in which
the expert has testified, facts or data used, fee paid to the expert, any
exhibits that would be used to support the experts opinion, the experts
resume (including any publications authored by the expert in the last 10
years
 30 days before trial.- a finalized list of witnesses and trial exhibits to be
offered at the trial
 If a Party supplies MR AID info, but learns prior to trial that the early response was
incomplete or is now materially misleading, there is an ongoing obligation to reveal
this to the opps. Failure to do so may result in ct sanctions (A DRIPS)

All mater which is not privilege, but is relevant to a claim or defense is discoverable.
Parties can no longer seek broad discovery, on the basis that it could lead to
admissible evidence, before a party makes a motion involving pretrial discovery, she
must submit a detailed good faith certificate of conference, showing that she
conferred with her adversary to resolve the issue. Or a good reason why no convo
took place

Do not bother the judge about pretrial discovery unless you have made. Good faith
effort with the opps….what is not discoverable, privilege.

Attorney work product, subjective mental analysis for trial prep and strategy, mental
impressions or opinions, which are absolutely privleged from pre trial discovery

Work product privilege - protects doc and tangible doc prepared in anticipation of
trial (conditionaly privileged from discovery unless the opposing party can show A.
That material can not be duplicated without undue hardship, B. there is a substantial
need for it to prepare for trial, C. Withholding it would result in undue
hardhsip. When an attorney meets with a witness, her notes are protected, as
material prepared for litigation, however when she meets with a client, the interview
notes are ABSOLUTELY privileged, under ACPrivelege and the attorney work product
privilege. By contrast records prepared in the routine course of bigness that would
not vary regardless of whether litigation was expected (accident report) are not
protected from disclosure, only fi the report was prepared solely for litigation
purpose