Commonly Missed Elements/Factors

What is the business judgment rule?

a presumption for corporations that a director’s decision may not be challenged because they:

1. acted in good faith,

2. with the care that a person would exercise in a like position, and

3. in a manner the director reasonably believed to be in the best interest of the corporation

What must a director do to honor the duty of loyalty with regard to a potential contract they have interest in, to make sure it is not set aside simply because of their interest?

One of the following must be true:

1. Director must disclose the material facts of the transaction to disinterested members of the board (or the shareholders), who approved the transaction, or

2. the transaction was fair to the corporation

When can’t the personal liability of a director for money damages to the corporation be eliminated by an exculpatory provision?

When the director:

1. received a benefit to which he was not entitled,

2. intentionally inflicted harm on the corporation or its shareholders,

3. approved unlawful distributions, or

4. intentionally committed a crime

What situations require a written contract under the Statute of Frauds?

MY LEGS:

1. Marriage

2. 1 Year

3. Land sales

4. Executory promises

5. sale of Goods

6. Surety agreements (agreements for someone to assume another’s debt if they do not pay

What are the four cases for when a federal court may hear a case despite mootness?

1. capable of repetition yet evading review

2. class action cases (where 1 member still has live controversy)

3. voluntary cessation

4. collateral consequences (P still suffering)

When may a state action discriminate against out-of-state entities, and thus burden interstate commerce, without violating the Commerce Clause?

• Hint: 4 exceptions

1. action furthers an important noneconomic state interest and there are no reasonable nondiscriminatory alternatives;

2. state is a market participant;

3. congress has approved the kind of discrimination; or

4. government action is regarding performance of a traditional government function

In what four cases may Congress exert police power?

MILD:

1. Military bases;

2. Indian reserves

3. federal Lands and territories

4. District of Columbia

What are the three ways implied preemption may occur?

1. intent of the federal government to occupy the entire field with its regulation;

2. state law directly conflicts with federal law; OR

3. state provisions prevent achievement of federal objectives

What is the constitutional standard for the general right of the press to publish information of public concern, when the information is illegally obtained?

Strict scrutiny, when:

1. its a matter of public concern;

2. the publisher didn’t obtain the information illegally and doesn’t know who did; AND

3. original speakers privacy expectations would have been low

When may a person assert third party constitutional rights?

When the person:

1. suffered injury;

2. which adversely impacts their relationship with third parties;

3. resulting in direct violation of the third party’s rights

When may states regulate local aspects of interstate commerce?

When:

1. not in conflict with federal law;

2. subject matter doesn’t require nationally uniform regulation;

3. doesn’t discriminate against out-of-state competition; AND

4. passes rational basis

When may a nonparty intervene as a matter of right when there is no federal statute on the subject?

• Hint: 3 requirements

When it:

1. has an interest in the property or transaction that is the subject matter of the action;

2. the disposition or resolution of the action may as a practical matter impair the nonparty’s ability to protect its interest;

3. non-party’s interest is not adequately protected by an existing party in the action

What are the elements for the burden of an equitable servitude to run with the land?

1. writing

2. intent

3. touch and concern

4. notice

What are the elements of the benefit of an equitable servitude to run?

1. writing

2. intent

3. touch and concern

What are the requirements for the burden of a real covenant to run?

1. writing

2. intent

3. horizontal and vertical privity

4. touch and concern

5. notice

What does P need to show to recover for products liability under a strict liability theory?

1. D is a commercial supplier;

2. D produced or sold the product and it was defective when it left their control;

3. the product was the actual and proximate cause of P’s injuries; and

4. P suffered damages to person or property

What are the elements of trespass to land?

1. act of physical invasion by D

2. of Ps real property

3. with intent to enter

4. causation

5. P actually entered

What are the elements of intrusion upon seclusion?

1. act of intrusion;

2. upon the seclusion of P;

3. which would be highly offensive to a reasonable person; and

4. the thing intruded upon is private

What are the elements of false imprisonment?

1. act or omission by D;

2. with intent to confine P;

3. which did confine or restrain P;

4. to a bounded area;

5. Ds act caused P’s restraint

What are the elements of false light?

1. publication of facts

2. about P

3. which falsely portray P’s beliefs or views;

4. in a way that would be highly offensive to a reasonable person;

5. with actual malice, if the publication is for public interest

When is a principal liable for an independant contractor’s actions?

When:

1. IC is engaged in inherently dangerous activities;

2. the principal’s duty is non-delegable; OR

3. principal attempts to control the manner and method in which the IC works

When may a person use deadly force in self-defense?

When:

1. D is without fault;

2. D is confronted with an unlawful force;

3. D reasonably believes he is confronted with imminent death or great bodily harm

What are the elements of false pretenses?

1. D gets title;

2. to the property of another

3. by intentional or knowing false statement of past or present fact;

4. with intent to defraud

What are the elements of conspiracy?

1. agreement between two or more people

2. intent to enter the agreement

3. intent to achieve agreed objective; AND

4. an act of mere preparation (modern statutes require an overt act)

What is opposing party entitled to do with a document when an attorney used the document to refresh a witness’ memory on the stand?

• have it produced at trial;

• inspect it;

• cross-examine the witness on it; and

• introduce it into evidence

Which 5 hearsay exceptions require the declarant to be unavailable?

1. former testimony

2. statement against interest

3. dying declaration;

4. statement of personal or family history; and

5. statement offered against party procuring declarant’s availability

What are the elements of interference with business relations?

• P has valid contractual relationship or business expectancy with third party

• D has knowledge of relationship;

• D intentionally interferes;

• which induces breach or termination of the relationship

• damages

When may hearsay evidence be admitted even when it meets an exception?

• Hint: 4 elements

A hearsay statement will not be admitted-even if it falls within a hearsay exception-when:

1. the statement is offered against the accused in a criminal case;

2. the declarant is unavailable;

3. the statement was testimonial in nature; and

4. the accused had no opportunity to cross-examine the declarant's "testimonial" statement prior to trial.

What is trespass to chattel?

1. an act of defendant that interferes with plaintiff’s right of possession in the chattel,

2. intent to perform the act,

3. causation, and

4. damages