MEE OUTLINE

Issue spotting approach (Agency)

1. Identify the agency relationship (creation)

2. Determine whether it has terminated (if so, look for apparent authority and/or ratification)

3. Discuss liability of the principal for the agent’s actions:

   1. Contract: look for actual authority, apparent authority or ratification

   2. Tort: look for vicarious liability and exceptions, apparent authority, direct liability

4. Address any liability of the agent to the third party (breach of contract, tort)

5. Discuss any breach of fiduciary duties owed by the agent and duties owed by the principal

Agency Creation

A agency relationship is created when one (prinicpal) manifests intent that another (agent) act on his behalf and be subject to his control.

Elements:

• Assent: agent and principal must manifest assent through words or conduct

• Benefit: agent agrees to work on behalf of principal and for principal’s benefit AND

• Control: Agent’s actions are subject to principal’s control.

Formalities: No consideration is required; many states require a writing if it relates to an interest in real property (equal dignities rule)

Parties: any individual or entity with capacity to possess rights and incur obligations can be a principal; only minimal capacity is required to be an agent

Termination of Agency Relationship

Either party may unilaterally terminate the agency relationship

Generally: Agent’s authority may be revoked by principal, agreement, changed circumstances, passage of time, agent’s death, or principal’s death or incapacity AFTER notice to agent; principal’s incapacity or death may not terminate agent’s durable power of attorney.

Limitations: If agent’s power is coupled with an interest in the subject matter of the power, principal’s death or termination does not revoke agent’s authority.

Liabilities to Third Parties (Agency)

Contractual Liability: Depends on agent’s authority to bind principal; principal is contractually liable to a third party for acts of an agent with actual or apparent authority.

Actual Authority: Principal causes agent to reasonably believe agent has authority to act.

• Express: through written or spoken words

  • Agent must reasonably believe (subjective) she is doing what the principal wants her to do (objective); principal’s actual contrary intent is ineffective

• Implied: allows agent to take whatever reasonable steps are necessary to achieve principal’s objective, within the accepted business practice or custom

  • By position — can arise by principal placing agent in a position that has authority act (e.g., VP)

  • By acquiescence — principal accepts or stays silent

Apparent authority: Principal causes a third party to reasonably believe the agent has the authority to act

• Third party’s reasonable belief can bind principal based upon past dealings, trade customs, etc.; an agent without authority acting in the ordinary course of business can bind principal if third party lacks notice

• Inherent authority from placing agent in a position of the type that has authority (e.g., VP)

• Imposter without authority can bind principal if principal is negligent in creating appearance of authority

Ratification: with knowledge of material facts, principal affirms the contract made on principal’s behalf

Estoppel: Principal may be barred from denying an agency relationship or agent’s authority if third party detrimentally relied and principal’s negligence caused the belief or principal failed to correct the mistake

Liability of Agent

Whether an agent will also be liable to the third party depends upon principal’s status

• Disclosed principal: If third party had notice and knew the identity of the principal, agent is NOT liable

• Partially disclosed (unidentified) principal: If third party had notice but did not know principal’s identity, agent IS liable

• Undisclosed principal: If third party did not know of agency relationship at all, agent IS liable

• Warranty of authority: breached if agent lacks the power to bind principal; agent liable for damages

Tort Liability (Agency)

Respondeat superior: Principal may be vicariously liable for the tortious acts of agent committed within the scope of employment.

• Employer-employee relationship: Principal has the right to control the manner and means of agent’s performance (unlike an independent contractor), e.g., provides tools, structures pay, directs the way the agent is to complete the tasks

  • Exceptions: principal can be liable for independent contractor torts when:

    • Principal retains control over the item or task

    • Principal hires independent contractor to perform nondelegable tasks

    • Independent contractor has apparent authority

    • Principal is negligent in selecting, training, or supervising independent contractor

• Acting within the scope: performing assigned work or acting subject to principal’s control

  • Exceptions:

    • Frolic (not a minor detour)

    • Commuting (unless in company vehicle or on employer errand)

    • Use of physical force, unless it was necessary to complete the assigned task

    • Intentional torts, unless acting for plaintiff’s benefit, force is inherent in the work, or agent has apparent authority

    • Agent acts independent of principal’s purpose or benefit (including criminal or personal conduct)

Apparent authority: Principal may be vicariously liable for agent’s tortious act committed with apparent authority

Direct liability: Principal may be directly liable to a third party for the following:

• Authorizing or ratifying tortious conduct of agent

• Negligent selecting, training, or supervising agent

• Delegating a non-delegable duty (legal responsibility remains with prinicipal)

Liability of agent: Agent is liable to the third party for their own torts but not those committed by prinicpal.

Duties Owed Between Agent and Principal

Duties of the Agent

• Duty of loyalty: to work only for principal’s benefit and to not compete, usurp principal’s business opportunity nor take secret profits

• Duty of reasonable care: to perform with reasonable diligence and skill

• Duty of obedience: to obey reasonable instructions

• Duty of notification and accounting: must keep principal informed and account for funds.

Duties of the Principal

• Duty to compensate per express or implied agreement

• Duty to deal fairly and in good faith and provide a safe working environment

• Duty to cooperate and not interfere with agent’s work

• Duty to indemnify and reimburse for losses if not resulting from agents wrongful conduct

Remedies for Breach of Duty

• For agent available remedies include:

  • Breach of contract

  • Injunctive relief

  • Tort damages

  • Recession

  • Unjust enrichment

• For principal available remedies include:

  • Breach of contract

  • Recession

  • Injunctive relief

  • Tort damages

  • Restitution

  • Accounting

  • Recovery of secret profits

  • Forfeiture of compensation

Subject Matter Jurisdiction

• Federal Question: Plaintiff’s claim is based on federal law

• Diversity: When the complaint is filed, there must be complete diversity of citizenship between the plaintiffs and defendants and an amount in controversy exceeding $75,000.

  • Citizenship: Individuals = where party is domiciled (resides with intent to remain at the time of filing); corporations = state(s) where incorporated and the state where principal place of business is located; Partnerships and LLCs = based on domicile on each individual parter or member

  • Amount in Controversy: must be GREATER than $75,000. Determined when action commenced in or removed to federal court; measured by good-faith estimate excluding interest and costs; can include punitive damages as well as attorney’s fees if recoverable by contract or statute

• Supplemental: Discretionary power of the court to exercise jurisdiction over added claims

  • RULE: A court with subject matter jurisdiction over a claim may hear other claims if they share a common nucleus of operative fact

  • Federal question cases: court has discretion to hear state law claims if they share a common nucleus of operative fact

  • Diversity cases: use of supplemental jurisdiction depends on the type of claim

    • Counterclaims: compulsory yes; permissive no, unless they meet diversity requirements

    • Crossclaims: yes, IF they arise out of the same transaction or occurrence

    • Joinder of parties: claims from permissive joinder cannot destroy complete diversity

  • Supplemental jurisdiction does NOT extend to claims by (1) existing plaintiffs against defendants joined, as necessary or permissive parties or as a result of impleader or intervention or (2) plaintiffs joined as necessary parties or as a result of intervention

• Removal (as a means by which a defendant may get the action our of state court to a federal court)

  • RULE: A defendant may remove a case from state to federal court if plaintiff’s claims could have been originally filed in federal court (because federal subject matter jurisdiction is satisfied)

  • Procedure: File a notice of removal within 30 days of service; all defendants must consent

  • Limitations if the claim is based upon diversity:

    • Cannot remove if any defendant is a citizen of the state where the claim is filed

    • Notice to remove must be filed within one year after action is commenced unless plaintiff acted in bad faith

    • Notice to remove need include only a plausible allegation that the amount in controversy exceeds $75,000

  • Remand is the action to move a case from federal to state court.

Removal Issue Approach

Procedure: Is notice timely? Do all defendants consent? Does any defendant reside in the forum state (if diversity case)?

Subject matter jurisdiction: Would he court have federal question or diversity jurisdiction (diversity is the more common basis)

Applicable law: Do the facts present competing laws triggering choice-of-law or Eire doctrine analysis?

Venue: In removal actions venue is proper in the federal district where the state court sits

Personal Jurisdiction Approach

Is the exercise of personal jurisdiction authorized by statute? What is the basis?

Presence, domicile, consent or through a long-arm statute

Is the exercise constitutional, meeting the standards of the Due Process Clause?

The constitutional analysis is the same whether in federal or state court because the federal court will use the long-arm statute of the state in which it sits.

The test: If personal jurisdiction is based on presence, domicile, or consent, then due process is satisfied. If personal jurisdiction is based on long-arm statute, due process requires sufficient minimum contacts between a party and the forum state so as not to offend traditional notions of fair play and substantial justice.

Minimum contacts? Briefly identify and describe the contacts

• Purposeful availment? (purposeful and substantial contact)

• Foreseeability? (reasonably anticipate being sued in the forum state)

• Relatedness? (specific v. general, domicile or continuous and systematic contacts?)

Fair play and substantial justice? Consider factors:

• Interest of forum state

• Burden on defendant to appear

• Interest in judicial efficiency

• Shared interest of the states in promoting common policy

Personal Jurisdiction

General v. Specific Jurisdiction: General personal jurisdiction requires defendant to be domiciled in the state or have continuous and systematic contacts with the forum state, whereas specific personal jurisdiction is when the claim arises out of OR is closely related to defendant’s contact with the forum state.

Bases for In Personam Jurisdiction:

• Presence: Physically present and served with process; cannot be a result of fraud

• Domicile: resides in the state with intent to remain indefinitely, even if temporarily away

• Consent: by authorized agent to accept service of process, failure to timely challenge by motion to dismiss, registering to do business (if required by the state), voluntary appearance, or implied consent (e.g., driving a vehicle in the state, filing a counterclaim)

• Long-arm statute: Most states have a statute authorizing personal jurisdiction over nonresidents who engage in activity or cause of action to occur within the state; exercise of a long-arm statute is authorized to the extent permitted by the Due Process Clause

Other Types of Personal Jurisdiction:

• In rem: Action against real or personal property to settle property rights of all persons

• Quasi-in-Rem: Determines only the interests of the parties to the action regarding property located in the forum state

Due Process: Due process requires sufficient minimum contacts between a party and the forum state so as not to offend traditional notions of fair play and substantial justice

• Minimum Contacts

  • Purposeful availment: purposeful and substantial contacts with the forum state

  • Foreseeability: Defendant should reasonably anticipate being taken to court there

  • Relatedness: Between cause of action and forum state (general or specific personal jurisdiction)

• Fair plain and substantial justice (fairness)

  • Interest in the forum state

  • Burden on defendant to appear (convenience)

  • Interest in judicial efficiency

  • Shared interest of the states in promoting common social policies

Notice and Service of Process

RULE: Due process requires notice reasonably calculated to apprise defendant of the pendency of the action. The service of process (a summons and a copy of the complaint) must meet court rules

Who Must Serve: Service may be made by any nonparty who is at least 18 years old.

Time Limit: Service of process must occur within 90 days after the plaintiff files the complaint.

Methods:

• Service on individuals in U.S.

  • Personal “in hand” service

  • Leaving it at defendant’s usual place of abode with a person of suitable age and discretion residing therein

  • Delivering it to a defendant’s agent

  • Other method allowed by state law

• Service on corporations and associations in U.S.

  • Delivering it to an officer or agent of the corporation or association

  • Delivering it to an agent appointed or authorized by law to receive service

  • Following state law in the state where the district court is located or where service is made

• Service by registered mail is limited to U.S. government or persons outside of U.S.

Federal Exceptions

• Nationwide personal jurisdiction allowed by federal statute, e.g., Federal Interpleader Act

• The “Bulge Provision” allows the area for service of process to “bulge” to within 100 miles of the federal courthouse, even if it crosses state lines

Waiver: plaintiff may send a form via first class mail or other reliable means, requesting defendant waive service by returning the form within a reasonable time limit (usually 30 days unless a foreign defendant); defendant’s waiver extends the period of time to serve an answer to 60 days after the request was sent.

Object to Insufficient Service by filing a 12(b) motion to dismiss

Venue

The proper place for trial considering fairness and convenience to the parties

RULE: Venue in a federal action is proper in a district in which any defendant resides (if all defendants reside in the same state) or where a substantial part of the claim arose or property is located. If there is no other option, venue is proper where the defendant is subject to personal jurisdiction.

• Residence of an individual: Same as domicile

• Residence of a business entity: Where it is subject to personal jurisdiction

Removal Cases: Venue in an action removed from state court is proper in the district court for the district and division where a state court sits

Object to Improper Venue by a 12(b) motion to dismiss or in the FIRST responsive pleading

Waiver: Objection to venue is deemed waived if not asserted in a timely manner

Transfer: (from one federal district to another)

• If venue is proper, the court can transfer to another district with proper venue based on convenience of the parties and witnesses and in the interest of justice

  • Forum non conveniens: The court will dismiss an action when the forum would be too inconvenient for the parties and a foreign (not a federal) court is more appropriate

• If venue is improper, the court must dismiss or transfer to a district where venue is proper

• Forum selection clause: Followed unless unreasonable and unjust or a result of fraud

Erie Doctrine

RULE: a federal court sitting in diversity will apply its own procedural rules but will apply the substantive law of the state in which it sits (if no federal law is on point)

Substantive v. Procedural: Determine whether the law is substantive or procedural

• Substantive laws include statute of limitations, elements of a claim or defense, and rules regarding conflicts of law and burdens of proof.

• Procedural laws include FRE, FRCP, and whether attorney’s fees are assessed or whether an issue is equitable or legal

Federal Common Law: When applying law under Erie, the court may look to federal statutes, constitutional provisions, and federal common law.

• Federal question cases: Admiralty cases in which the U.S. is a party, interstate disputes, cases implicating relations with foreign countries, cases in which the government acts in a proprietary role

• Diversity cases: “Uniquely federal interest” is at stake and a significant conflict exists between that interest and operation of state law

• State court cases: If state jurisdiction is concurrent with federal jurisdiction and federal common law would have applied in federal court, then it will also apply in state court.

TEST: When there is a conflict between federal and state law and no federal statute or rule is on point, the court will apply state law if it is outcome determinative, if the state’s interest outweighs the federal interest, or if it would prevent forum shopping

Pleadings

Timing: To calculate a time period, exclude the day of the trigger event and count every day in-between. If the last day of the period falls on a weekend or holiday, extend to the next non-weekend or non-holiday day.

Complaint: An action is commenced by filing a complaint (includes crossclaim, third party complaint)

• Purpose:

  • Notice pleading: Short and plain statement to provide notice to the opposing party

  • Special pleading: Pleading with specificity required in some circumstances (e.g., fraud or special damages)

• Contents: The complaint must include a short and plain statement with the following:

  • Grounds for subject matter jurisdiction

  • Statement of the claim and entitlement to relief

  • Demand for judgement for the relief sought

• Joinder of claims (Rule 18 permissive): As between the same plaintiff and defendant, the parties may join as many claims of whatever nature against the opposing party

• Crossclaim is a claim against a co-party arising from the same transaction or occurrence

Response to a Complaint:

• Timing: Defendant must respond by answer or motion within 21 days of service of process

• Answer: Defendant’s response must admit ot deny and raise affirmative defenses or counterclaims

  • Affirmative defenses include Statute of Frauds, statute of limitations, contributory negligence, fraud, and res judicata; if any affirmative defense is NOT raised in the answer, it is considered waived

  • Counterclaims

    • Compulsory (arise from the same transaction or occurrence as plaintiff’s claim)

    • Permissive (do not arise from the same transaction or occurrence as plaintiff’s claim)

• Motion to Dismiss (Rule 12(b))

  • Bases

    • Lack of subject matter jurisdiction (may raise at any time, even on appeal)

    • Lack of personal jurisdiction (waived if not included in first response)

    • Improper venue (waived if not included in first response)

    • Insufficient process or service of process (waived if not included in first response)

    • Failure to state a claim for which relief can be granted (may raise at any time through trial)

    • Failure to join a necessary party (may raise at any time through trial

• Motion for a judgment on the pleadings: Allows a court to dispose of a case when the material facts are not in dispute and a judgment on the merits can be achieved based on the pleadings

• Motion for a more definite statement: If a pleading is so vague or ambiguous that a party cannot reasonably draft a required responsive pleading, then the responding party may request a more definite statement

• Motion to strike: If a pleading contains any sufficient defense, or redundant, immaterial impertinent, or scandalous material, then the court upon motion or upon its own initiative, may order that such defense or material be stricken

Amendments to the Pleadings

• As of right

  • Allowed once no later than 21 days after serving it if no responsive pleading is required

  • If a responsive pleading is required, within 21 days of service of whichever is received first (i.e., the responsive pleading or 12(b) motion)

• By leave of court when justice requires and if no undue prejudice to the opposing party

• After statute of limitations has run

  • Relation-back doctrine: An amended pleading with relate back to the date of the original pleading if it involves the same transaction or occurrence and provides notice to the opposing party

    • Adding a claim will relate back if it arose out of the same transaction or occurrence

    • Changing a party must involve the same transaction or occurrence and the party must receive notice within 90 days of filing complaint and know or have reason to know the action should have been brought against him.

Certification (Rule 11)

• Signature: Required of attorney or pro se party on every pleading or motion

• Certification: By signing, the signer certifies the filing was made after reasonable inquiry and for a proper purpose, and certifies the legal basis and evidentiary support of the claim

• Sanctions:

  • Sanctions may be initiated by motion or by the court on its own motion

  • Sanctions are discretionary and can include monetary and non-monetary directives

Multiple Parties and Claims

Joinder of Parties

• Generally: The requirements of subject matter jurisdiction, personal jurisdiction, and venue must be met to join a party

• Permissive: unless the party would destroy diversity, a party may join if their claim arises from the same transaction and occurrence and raises a common question of law or fact

• Compulsory (label a party as necessary or indispensable only after analyzing whether the court can feasibly join the compulsory party or must dismiss the action)

  • Necessary Party: Unless the party would destroy diversity, a party whose joinder is necessary for a just adjudication will be joined if feasible; service of process (personal jurisdiction) may be had under the Bulge Provision

  • Indispensable Party: the action may be dismissed if joinder is not feasible, thereby making th non-joined party indispensable

Intervention: Nonparty files a timely motion to join the lawsuit

• As of right: Nonparty has an interest in the subject matter that is not adequately represented and it will be impaired unless the nonparty is allowed to intervene

• Permissive: Nonparty’s claim or defense has a common question of law or fact with the pending claim, or the nonparty has a conditional right to intervene under the federal statute; allowed within the discretion of the court considering prejudice to the parties

• Subject matter jurisdiction must exist for the intervenor’s claim; supplemental jurisdiction does NOT apply if the case is based on diversity jurisdiction

Impleader: Nonparty is joined by defendant based on a claim of indemnity or contribution

• Personal and subject matter jurisdiction must be satisfied; supplemental jurisdiction is available if the claim arises from the same transaction and occurrence

• Service of process on the nonparty is allowed under federal Bulge Provision

• Related claims and defenses of the nonparty against plaintiff and defendant may be joined

Interpleader: Forces all claimants to a property into a single lawsuit to settle property rights

• Rule 22: If the court already has subject matter jurisdiction and personal jurisdiction over all parties (and venue is proper)

• Statutory: Jurisdiction requirements lessened to allow interpleader action

Class Action

• Types

  • Risk of prejudice to defending party if individual actions allowed to proceed

  • Final injunctive or declaratory relied sought by class that shares a general claim

  • Common legal or factual questions predominate and class action promotes efficiency; notice to teh individual members of the class action is required

• Requirements (C.A.N.T. have class action w/o requirements)

  • Commonality: Common questions of law or fact to support the claim

  • Adequacy: The representatives must adequately and fairly protect the class

  • Numerosity: The class size is so large that joinder is impracticable

  • Typicality: The claims or defenses of the representative are typical of the class

• Subject Matter Jurisdiction based on diversity requires diverse citizenship between class representatives and opposing parties; one representative must have a claim exceeding $75,000

• Class Action Fairness Act (CAFA) allows very large actions involving 100 or more members with $5 million or more at stake to proceed with minimal diversity (i.e., any member of a class of plaintiffs is a citizen of a state different from any defendant)

Discovery

Mandatory Disclosures: Must be produced WITHOUT request

• Initial disclosures must include

  • Names and addresses of persons with discoverable information

  • Copies or descriptions of documents and items

  • Computation of damages and insurance agreement

• Expert disclosures: Qualifications, publications, compensation, opinion and its basis, and list of cases expert has testified at trial or deposition in past four years

• Pretrial disclosures: List of all witnesses and exhibits to be used at trial

Scope of Discovery

• RULE: Any non-privileged matter relevant to a claim or defense is discoverable, proportional to the needs of the case.

• EXCEPTIONS:

  • Privileged information (e.g., protected by attorney-client privilege)

  • Work product: documents and things prepared in anticipation of litigation

    • Need not be created by an attorney; can be by the party or its representative

    • An exception is made upon showing of substantial need and no other resource

    • NO exception for attorney’s mental impressions, legal theories or opinions

• Experts: No discovery if expert retained in anticipation of trial but NOT expected to testify

• Protective Order: For good cause to protect against embarrassment or undue burden

Discovery Conference: The parties must meet and agree on a discovery plan

Devices:

• Depositions

  • Allowed at any time after initial disclosures

  • Limited to 10 depositions of one day in duration unless otherwise ordered by the court

  • Notice to a party is required; nonparty must be subpoenaed to appear

  • Oral depositions are most frequently used; written depositions are rare

• Interrogatories: Limited to 25; may only be sent to a party

• Requests to produce and permit inspection: Must be described with particularity

  • Applies to documents and land under the control of a party

  • May be sent to nonparty only if pursuant to a subpoena

• Physical and mental examination

  • Allowed if physical or mental condition of a party (not a witness) is at issue

  • Court order upon showing of good cause is required

• Requests for admission: Allowed of a party; cannot be used in any other proceeding

Use at Trial: Is not automatic; the rules of evidence govern admissibility at trial

Enforcement and Sanctions:

• Motion to compel (prerequisite to seeking sanctions unless complete failure to cooperate)

  • Grounds include evasive, incomplete, or nonexistent disclosure

  • Must certify an attempt in good faith to obtain the discovery

  • Fees and expenses are recoverable if the motion is granted

• Sanctions

  • Immediate sanctions available upon failure of a party to attend to their deposition, respond to a request for interrogatories, or to produce and permit inspection

  • After a motion to compel, the court may awards sanctions, including: disallowing the evidence, directing the matter as established, striking the pleadings, dismissing the action in whole or part, and staying the proceedings until the order is obeyed

Pretrial Conference: To promote case management and facilitate settlement

Interlocutory Injunctions

Temporary Restraining Order (TRO)

• Urgent order to stop conduct for a short time (generally 14 days MAX) to preserve the status quo pending a preliminary injunction hearing; can be issued ex parte

• Payment if a security bond is preferred

• Elements required for TRO to issue without notice to the adverse party:

  • Immediate irreparable harm will result before hearing the adverse party’s opposition

  • Certification of any efforts made to give notice and the reason why notice should not be required

Preliminary Injunction

• To preserve the status quo pending trial; payment of security bond is preferred

• Defendant is entitled to notice and an opportunity to be heard

• Elements:

  • Likelihood plaintiff will succeed on the merits

  • Irreparable harm for which there is no remedy at law (inadequate remedy at law)

  • Balance of the hardships on both sides and considering the public interest favors plaintiff

    • Consider the feasibility of enforcement and the difficulty of supervision

    • A negative injunction (an order to refrain form conduct) is easier to enforce

  • Best interests of the public

Permanent Injunction

• After plaintiff has achieved success on the merits, the court can award a permanent injunction; no bond is required

• Elements: the same as for a preliminary injunction

Adjudication Without Trial

Judgment on the Pleadings (rare): the pleadings fail to show a dispute

Default: a party has failed to plead or defend an action

• Must be shown by affidavit, after which an entry of default is made by the court of clerk

• After an entry of default is made, the plaintiff may seek a default judgment

• An entry of default may be set aside for good cause

Dismissal:

• Voluntary: Plaintiff may dismiss once before a responsive pleading or motion by defendant'; plaintiff can also request dismissal by motion asking for a court order; the dismissal is usually without prejudice

• Involuntary: Dismissal by the court if the plaintiff fails to comply; with prejudice unless order specifies otherwise

Summary Judgment

• Standard: There is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law

• A motion for summary judgment may be filed up until 30 days after the close of discovery

• Evidence considered: includes discovery (e.g., depositions and interrogatories) and affidavits, so long as the facts are admissible at trial

• Appeal: If denied on sufficiency of the evidence grounds, a party must move for judgment as a matter of law to preserve a claim for appeal; if denied on purely legal grounds, a party need not move for judgement as a matter of law to preserve the legal challenge for appeal

Trial

Trial by Jury: Guaranteed under the Seventh Amendment for a civil action at law (e.g., money damages) but not for an action in equity (e.g., specific performance)

• Demand: Must be in WRITING and served with 14 days after service of the answer or other pleading directed at the issue; must specify the issues for which a jury is demanded; may be withdrawn with the consent of the other parties

• Jury size: Must consist of at least SIX and no more than TWELVE members; no federal provision for alternate jurors

• Selection: Each side has THREE preemptory challenges (but no elimination based on race or gender) and unlimited challenges for cause

• Instructions: Parties file proposed instructions at the close of evidence’ objections must be raised before jury is instructed

Motion for Judgment as a Matter of Law (Directed Verdict)

• Standard: The evidence could not support a contrary verdict thereby entitling the moving party to judgment as a matter of law

• Akin to motion for summary judgment but made after plaintiff’s case and again at close of evidence

• Court will construe all evidence in the light most favorable to the nonmoving party

Renewed Motion for Judgment as a Matter of Law

• If a motion for judgement as a matter of law was filed and the jury returned a contrary verdict, the party may file a renewed motion; filing a motion for judgment as a matter of law is a prerequisite

• The renewed motion must be filed within 28 days after the entry of judgment

Judgement

• A decree or order by a court that resolves the parties’ rights and demands for relief in a manner that permits it to be appealed

• Should grant a party the relief to which the party is entitled, even if the party has not demanded such relief in its pleadings

Motion for a New Trial

• A motion for a new trial must be made within 28 days after the entry of judgment

• Whether a new trial is granted is within the discretion of the court

• Grounds for a new trial include:

  • Trial error resulting in an unfair judgment

  • Newly discovered evidence

  • Prejudicial misconduct by counsel, parties, judge, or jury

  • Verdict is excessive or inadequate

    • Court can reduce an excessive verdict (remittur), and grant a new trial of the lowered award is not accepted

    • Court cannot increase an award but can grant a new trial

• Harmless error rule: The court will disregard errors that do not affect the party’s rights

• Grant of a new trial must include reasons for the order

Post-Trial Procedure

Relief from Judgment: Awarded if enforcement would cause injustice

• Timing: within a reasonable time (up to one year) following the entry of judgment

• Grounds: Mistake, inadvertence, surprise, excusable neglect, newly discovered evidence, fraud, misrepresentation, or misconduct by an opposing party

• Exception: There is no time limit for special grounds, e.g., judgment is void; judgment has been satisfied, released, or discharged; judgment was based on reversed of vacated judgment; applying the judgment is no longer equitable; or any other reason justifying relief

Enforcing a Judgment: The Full Faith and Credit Clause governs

• State courts: A state court must give full faith and credit to valid final judgments of other state courts and federal courts

• Federal courts: A federal court must give full faith and credit to valid final judgments of state courts

Appeal

• Timing: Notice of appeal must generally be filed within 30 days after the judgment order is entered

• Standard of review: Matters of law are reviewed de novo; findings of a jury are affirmed if supported by substantial evidence; factual findings of a judge are overturned only of clearly erroneous; discretionary rulings of a judge are overturned if the judge abused their discretion

• Final judgment rule: Only a final judgment on the merits may be appealed

  • Collateral order rule: Allows a court of appeals to hear and rule on a district court order if it (q) conclusively determines the disputed issue, (2) resolves an important issue that is completely separate from the merits of the case, and (3) is effectively unreviewable on appeal from final judgment

  • Interlocutory orders: Some equitable non-final orders may be appealed immediately

Claim and Issue Preclusion

Claim Preclusion (Res Judicata)

• RULE: A final judgment on the merits precludes the parties from litigating the claims again.

• Elements:

  • Valid: the court had both personal jurisdiction and subject matter jurisdiction and afforded due process to the defendant

  • Final judgment: there is nothing further to do but enter judgment

  • On the merits: Not made on technical grounds (e.g., procedural error)

  • Same cause of action: The new cause of action must be sufficiently identical to the original cause of action (arising from the same transaction or series of transactions)

  • Same parties or privies: The parties must be the same as before or successors

Issue Preclusion (Collateral Estoppel)

• RULE: A final judgment on the merits precludes relitigation of issues that were necessarily determined in an earlier claim

• Elements:

  • Valid judgment on the merits

  • Same issue: the relevant facts and applicable law (but not parties) must be identical

  • Actually litigated: Actually and necessarily decided, e.g., not from a default judgment

  • Essential to the judgment: necessary to the decision

Due process limitations

• Mutuality: can only be used against or by one who was a party (or in privity with a party) to the earlier claim

• Non-mutual use: When issue preclusion is used by a party in the later claim who was not a party in the earlier claim:

  • Defensive use is allowed when asserted by a defendant against a party who had a full opportunity to litigate in the earlier case

  • Offensive use is permitted at the court’s discretion; if plaintiff could have joined in the earlier action, the court should not allow offensive collateral estoppel.

Big picture and approach to Constitutional Law

1. Can the matter be addressed by this court? Judicial review

2. What type of constitutional issue is presented?

   1. Scope of Congressional power? Commerce Power, Power to Tax and Spend

   2. State interference with power? Preemption, Dormant Commerce Clause, Privileges and Immunities Clause

   3. Individual rights? Due Process, Equal Protection, Takings Clause, First Amendment

Approach to Judicial Review (Con Law)

1. Can the matter be addressed by this court? Consider facts that trigger the issues:

   1. Is it in a state or federal court? Case or controversy requirement for federal courts

   2. What is the timing of the suit? Is it too son (not ripe for review) or too late (moot)?

   3. Who is the plaintiff and what is the injury? Standing

   4. Who is the defendant? The state or a state official? Eleventh Amendment issues

Judicial Review

Justiciability: Under Article III, the jurisdiction of federal courts is limited to cases or controversies. The matter must be justiciable, ripe for adjudication, and capable of being redressed.

• Ripeness: An issue when there is no actual or imminent threat of harm (it is too soon)

• Mootness: An issue when legal proceedings will have no effect (it is too late), unless it is a class action or an issue capable of repetition but evading review (e.g., abortion litigation)

• Standing: The plaintiff must have a concrete stake in the outcome

  • Injury: Must be both concrete and particularized

  • Causation: The injury must be fairly traceable to the challenged action

  • Redressability: The requested relief must be likely to redress the injury

  • Special categories

    • Taxpayer: Very limited; cannot challenge government expenditures generally unless challenging specific legislatively authorized expenditure as violation of the Establishment Clause

    • Third party: No standing unless third party is unable to assert their own rights, there is a special relationship between the plaintiff and third party, or the injury to plaintiff affects the relationship with third party

    • Organization: May sue on behalf of its members if the members would have standing and the interests are tied to the organization’s purpose

• Other limitations: Abstention, political questions, advisory opinions, declaratory judgments

Eleventh Amendment Limitation

• Generally: A federal court cannot hear an action by a private citizen or a foreign country against a state government; local (municipal) governments are not protected

• State sovereign immunity: A state is immune from suit for money damages by its own citizens in state and federal court, absent exception

• Exceptions (suit is ALLOWED):

  • Consent by state

  • Injunctive relief against a state official (unless state-court judge or clerk)

  • Money damages against a state officer personally, not paid by the state treasury

  • Prospective damages to be paid by state treasury in suit against a state officer

  • Congressional abrogation under the remedial provisions of the 13th, 14th, and 15th Amendments

  • Structural waivers: Actions brought by U.S. government, bankruptcy proceedings, federally approved condemnation proceedings, actions under Congress’s war and defense powers

Approach to Congressional Power

• Scope of congressional power? Consider trigger facts to spot issues:

• Do facts say “Congress” or “Legislature” passes a law or enacted legislation?

• Is there a challenge to the legislation? If the facts do not identify the underlying power, continue…

• What is the source of the power? Most often commerce power or power to tax and spend

Powers of Congress

The powers of Congress are limited to those enumerated by the Constitution; powers not granted to the federal government nor prohibited to the states are reversed to the states (Tenth Amendment)

Commerce Power (Commerce Clause)

• Generally: Congress can regulate channels, instrumentalities, and any activity that substantially affects interstate commerce, provided that the regulation does not infringe upon any other constitutional right

• Substantial economic effect: Congress can regulate any activity (intra- or interstate) that has a substantial economic effect on interstate commerce, measured by whether there is a rational basis for concluding the activity in aggregate would affect interstate commerce (presumed economic activity).

• Noneconomic activity: Substantial economic effect not presumed and must be established

Taxing and Spending Power

• Taxing: Congress has the power to tax if it is reasonably related to raising revenue

• Spending: Congress has the power to spend for the general welfare and can use its spending power to regulate activity by conditioning federal funding on such activity

Necessary and Proper Clause: enables Congress to legislate to execute its powers

Other Powers: War, property, elections, noncitizens and naturalization, investigatory

Enforcement Powers: Congress is empowered to enact legislation to enforce the civil rights guarantees of the 13th, 14th, and 15th Amendments.

Approach to State Interference

State interference with power? Consider facts to spot issues:

Look at the action verbs to identify the issue and characterize the nature of the state interference:

Has the state enacted legislation, issued a tax, or created a licensing scheme?

Issues: Preemption, Dormant Commerce Clause, Privileges and Immunities Clause (Article IV)

Interference by State Regulation

Dormant Commerce Clause

• RULE: In the absence of federal regulation, state regulation of commerce is valid so long as there is no discrimination against out-of-state commerce or an undue burden on interstate commerce. The clause applies to both out-of-state citizens and corporations (unlike the Comity Clause of Article IV, Section 2).

• Discrimination against out-of-state commerce? Also consider Privileges and Immunities Clause below

  • Necessary to important state interest? The regulation will be upheld if an important local interest is being served and no other nondiscriminatory means are available.

  • Market participant exception? A state may discriminate if it is acting as a market participant (buyer or seller) as opposed to a market regulator. (This exception does NOT apply to challenges under the Privileges and Immunities Clause of Article IV. In that case, there still must be a sufficient justification for discrimination)

  • Traditional government function exception? Regulations may favor state or local government for performance of a traditional government function (e.g., waste disposal)

• No discrimination against out-of-state commerce? Usually upheld

  • Undue burden on interstate commerce? Even if non-discriminatory, the regulation must not place an undue burden on interstate commerce

    • Balancing test: Are the burdens imposed on interstate commerce clearly excessive in relation to the local benefits?

    • Is the regulation only impacting out-of-state activity? A state may not purposefully or deliberately regulate conduct that occurs wholly beyond its borders.

Privileges and Immunities Clause of Article IV (Comity Clause)

• RULE: No state may deprive a citizen of another state the privileges and immunities it accords its own citizens.

• Approach:

  • Discrimination against out-of-state citizens? Corporations are not “citizens”

  • Does it impact a fundamental right or essential activity?

    • Private employment (e.g., fee for commercial license, residency requirements)

    • Recreational activities NOT protected (e.g., higher fee for recreational hunting license)

  • Does a substantial reason justify the discrimination?

    • Nonresidents caused or are part of the problem

    • The discrimination is substantially related to that problem.

State Taxation of Commerce

• RULE: If Congress has not already acted in the area, a state may tax interstate commerce if it is nondiscriminatory and does not place an undue burden on interstate commerce

• Discrimination? Is tax designed to protect local commerce from out-of-state competition?

• No discrimination?

  • Substantial nexus between the state and the taxed activity? Significant contact or substantial activity within state?

  • Fair apportionment of tax liability? Tax on interstate commerce equal to (not greater than) the tax on local commerce?

  • Fair relationship to services provided by the state? State benefits relate to the tax

• Related issues: Beyond Commerce Clause, consider Privileges and Immunities Clause and Equal Protection Clause

Preemption: Under the Supremacy Clause, federal law (including regulations) overrides inconsistent state constitutional provisions or law

• Express: Congress explicitly prohibits state laws in the area or the Constitution gives federal government exclusive power

• Implied: Congress intended federal law to occupy the field or a state law is in conflict

  • Direct conflict: It is impossible (or nearly so) to comply with both laws simultaneously

  • Indirect conflict: State law frustrates the federal law’s purpose

• Supremacy Clause creates a floor—not a ceiling; states may enact more stringent laws and recognize greater rights than those granted by federal law.

Approach to Individual Rights

Consider trigger facts to spot issues:

Is there state action?

Is there a lack of procedural protection for taking liberty or property? Procedural Due Process

Is the law unreasonable and arbitrary, infringing a right for all persons? Substantive Due Process

Is the law infringing a right for a class of persons? Equal Protection

Is the government taking private property? Takings Clause

Is there a law impacting religion, speech, or association? First Amendment

Individual Rights

State Action: Private conduct will not trigger constitutional guarantees (except the Thirteenth Amendment’s prohibition against slavery); this includes actions by federal as well as local governments

• Traditional government function performed by private persons

• Significant state involvement with private conduct, such that the government is pervasively intertwined with the private party’s conduct (e.g., facilitating private discrimination)

Procedural Due Process (Fifth & Fourteenth Amendments)

• RULE: an individual may not be deprived of life, liberty, or property without due process of law. Due process requires notice and an opportunity to be heard.

• Deprivation of life, liberty, or property? Requires intentional conduct, not negligence

  • Liberty: Significant restraint on physical freedom or exercise of a fundamental right

  • Property: Legitimate entitlement to continued receipt of a benefit

• What process is due? Consider the interest of the individual, the ability of additional procedures to increase the accuracy of the fact finding, and the burden in providing such

• When is the process due? Timing of hearing varies by type of property or liberty at stake

• What is the burden of proof? Burden varies by type of property or liberty at stake

Substantive Due Process (Fifth & Fourteenth Amendments): Law infringes upon a right for all persons

• RULE: Government action that infringes a fundamental right is subject to strict scrutiny; there need only be a rational basis for infringement upon a non-fundamental right

  • Intermediate scrutiny is not applied in substantive due process cases

• Fundamental right? voting, travel, and privacy (e.g., marriage, child rearing)

  • Strict scrutiny: is it necessary to achieve a compelling government interest?

  • Implied in the rule is the requirement for the least restrictive means

  • Burden is on the government to prove the law is necessary

• Not a fundamental right? Social or economic interest (e.g., taxation, zoning, business)

  • Rational basis: Is it rationally related to a legitimate state interest?

  • Burden is on the challenger to show the law is arbitrary or irrational

Equal Protection (Fifth & Fourteenth Amendments): the law infringes a right for a class of persons

• RULE: The Equal Protection Clause of the Fourteenth Amendment provides that no state shall deprive its citizens the equal protection of the laws. The Fifth Amendment includes the rights guaranteed by the Equal Protection Clause

• Fundamental right or suspect classification? The suspect classifications are race, ethnicity, national origin (and if analyzing a STATE law, citizenship). The challenger must show a discriminatory purpose behind the law.

  • Strict scrutiny

• Quasi-suspect classification? Gender or status as a non-marital child (legitimacy)

  • Intermediate scrutiny: Is the law substantially related to an important government interest? The burden is on the government

• All other cases: Apply rational basis; examine the motivation behind the law

Takings (Fifth Amendment)

• RULE: Private property may not be taken for public use without just compensation. The Fourteenth Amendment Due Process Clause makes the Takings Clause applicable to the states.

  • Taking?

    • Not limited to ownership interests; can also apply to non-possessory interests (e.g., easements)

    • Seizure or destruction of property qualifies

    • A regulation is a taking if it leaves no economically viable use of the property, but a regulation that merely limits use (e.g., zoning) is not a taking

  • Public Use? Rationally related to conceivable public purpose

  • Just compensation? Fair market value at the time of the taking

Freedom of Religion (First Amendment)

• Establishment Clause

  • RULE: The government can make no law respecting the establishment of religion, and laws that discriminate against religious speech or conduct or among religions are subject to strict scrutiny.

  • Test: Court generally utilizes a consideration of “historical practices and understandings” (e.g., presumption of constitutionality for longstanding monuments, symbols, and practices).

• Free Exercise Clause

  • Freedom to believe in a religion is absolutely protected; the government may not deny benefits or impose burdens based on religious belief

  • Freedom to act on religious belief is less protected; the government may not intentionally target religious conduct, but a neutral law of generally applicability that impacts religious conduct will be upheld if it is rationally related to a legitimate interest

Freedom of Speech (First Amendment)

The First Amendment provides Congress shall make no laws abridging the freedom of speech, and it is applicable to the states through the Fourteenth Amendment

• Is the conduct “speech”?

  • Communication including activities (expressive conduct)

  • The First Amendment protects the freedom of speech as well as the freedom not to speak

• Is the regulation a prior restraint? Stops speech before it occurs. Presumed unconstitutional with rare exceptions:

  • To prevent particular harm?

  • Procedural safeguards without unfettered discretion?

• Is the regulation content-based? The regulation applies on its face, in application, or in intent to specific speech, conduct (one of the categories below), or viewpoint; strict scrutiny applies

  • Symbolic speech (expressive conduct): Regulation upheld if it furthers an important government interest unrelated to speech suppression and the burden on speech is no greater than necessary.

  • Political speech: Includes political speakers, campaign finance, and contributions

    • Scope: protections apply to both individuals and corporations

    • Campaign contributions: Regulations subject to intermediate scrutiny

    • Campaign finance: regulations on expenditures are subject to strict scrutiny

  • Commercial (advertising): can suppress speech if false or misleading

  • Defamation

  • Obscenity:

    • Definition: Appeals to prurient interest, is patently offensive (community standard), and lacks serious literary, artistic, political, or scientific value (national standard)

    • Pornography: Strict scrutiny generally applies to content-based restrictions on pornography

  • Incitement to violence: laws that forbid “fighting words” are often vague or overbroad

• Is the regulation vague or overbroad?

  • Vagueness: Void if it fails to give sufficient notice as to what is prohibited

  • Overbreadth: Void if it burdens a substantial amount of speech or other conduct constitutionally protected by the First Amendment; not applicable to commercial speech

Freedom of Association (First Amendment)

• Laws that prohibit participation in a group require disclosure of participation must meet strict scrutiny

• Criminal punishment based on political association requires active membership with knowledge of the group’s subversive nature and intent to further the illegal objective of the groupT

Timeline of Contracts and Sales

Applicable law: What law applies? UCC or Common Law

Formation: Was a contract formed? Mutual assent, terms, defenses

Third-party issues: Is there a third party to the contract? Assignment, delegation

Excused performance: Was it performed or was performance excused? Conditions, breach

Remedies: If there is a breach, what remedy is available?

Determining what law applies to contracts

Services or real estate contracts: Common law applies

Sale of Goods: UCC applies

• Goods: Defined as tangible personal property

• Merchant status: Special rules apply if a party regularly deals in goods of the kind involved

Mixed: Apply the predominant purpose test to resolve

• Sale-of-goods aspects predominate: UCC applies to the ENTIRE transaction but does not preclude the application of other law to aspects that do not relate to the sale of goods

• Service aspects predominate: Only the provisions of the UCC that relate primarily to the sale-of-goods aspects apply (e.g., warranties, risk of loss, and tender of nonconforming goods)

The USS applies to contracts for the sale of goods of any dollar amount and whether or not a merchant is involved. Some UCC rules only apply if a party is a merchant. Define and discuss merchant status of a party (if relevant) at the outset after you determine the UCC applies, or before applying a rule for which merchant status matters.

Was a contract formed?

Mutual Assent (Meeting of the Minds)

• Was there an offer?

  • Commitment: manifestation of present intent to be bound

  • Communicated to a specific offeree: or under the exception for reward offers

  • Containing definite and essential terms

    • Common law: requires parties, subject matter, price, and quantity

    • UCC: quantity is the key term that typically must be specified

      • Gap fillers allowed for other terms, e.g., price, time, and place of delivery

      • Output and requirements are sufficiently definite under the UCC

    • Missing terms okay if there is an intent to contract; court will imply reasonable term

    • Advertisement? Usually treated as an invitation to receive offers from the public

    • Unilateral contract? Terms of offer require an act for acceptance, not a mere promise

• Was it terminated?

  • Revocation by offeror: Express or constructive retraction; effective upon receipt

    • Irrevocable if detrimental reliance, option contract, or UCC merchant’s firm offer

    • Revocation of unilateral offer NOT available once performance has begun

  • Rejection by offeree: by words, conduct, or counteroffer, effective upon receipt

  • Lapse of time: If no time stated, it lapses after reasonable period of time; reasonableness depends on a variety of factors (e.g., nature of the contract)

  • Operation of law: Death, destruction of the subject matter, or supervening illegality

  • Rejection must be clear. A statement of indecision or mere inquiry (e.g., “Is your price firm?”) will not terminate the offer. A counteroffer (e.g., “How about $500?”) functions as a rejection AND a new offer.

  • Revocation language: Offeree = rejects, Offeror = revokes

  • Watch the timing: When the offeror revokes, analyze whether they had the power to revoke.

    • If the offer is irrevocable, the offeror lacks the power to revoke

    • Once the offerree accepts the offer, it is too late and the offeror lacks power to revoke

    • Likewise, once the offeror validly revokes, the offeree’s power to accept the offer expires

• Was it accepted?

  • Common law—mirror image rule: Any change in terms will be a rejection and counteroffer

    • Mailbox rule: Acceptance sent by mail is effective when sent unless:

      • Offeree accepts and later rejects—acceptance controls unless offeror has relied on the rejection

      • Offeree rejects and later accepts—first received controls even if offeror has not read it

  • UCC: Can accept by promise (know UCC 2-207) or performance

    • By promise: Acceptance including a change in terms is valid unless agreement to the changed terms is made a condition of acceptance; if not, terms are a proposal for change to the contract

      • Between merchants, the new or different terms control, unless:

        • The original offer limited acceptance to its terms

        • They materially alter the offer; or

        • The offeror does not object within a reasonable time

        • Knock-out rule: Some states treat different terms as nullifying each other

    • By performance: Shipment of nonconforming goods is both an acceptance and a breach unless buyer is notified the goods were sent as an accommodation.

  • Unilateral: Requires complete performance; offeree must know of and be motivated by offer; once started, the offeree is NOT bound to complete performance

Is there consideration?

• Bargained for exchange? Mutuality of promises

  • Gifts: not bargained for; consider promissory estoppel

  • Past consideration: Not bargained for; modern trend allows if needed to prevent injustice

• Of legal detriment? Minority look for detriment or benefit

  • Adequacy: Promise to do or not to do something; performing or refraining from performing an act

  • Preexisting legal duty: insufficient unless giving something new or different

  • Illusory promises: NOT valid unless required to act in good faith, e.g., upon satisfaction

• Or a substitute?

  • Promissory estoppel or detrimental reliance: Foreseeable, reasonable reliance

  • Quasi-contract: Implied in law to avoid unjust enrichment; get value of benefit conferred

Is there an issue with the terms?

• Modification: look for and analyze an offer to modify, acceptance, and consideration

  • Common law: requires additional consideration; must overcome the preexisting duty rule

  • UCC: requires good faith but no additional consideration

• Parol evidence rule: bars extrinsic evidence of prior contemporaneous statements that contradict the written agreement (if the agreement is integrated)

  • Integrated writing: Intended as final expression of the parties’ agreement; partial okay

  • Extrinsic evidence allowed to attack validity or explain terms; UCC more lenient

• Warranties (UCC)

  • Express: Promise, description, or sample (but not opinion) that is a basis of the bargain

    • General disclaimer for an express warranty is not valid

  • Implied warranty of merchantability: Product fit for ordinary purpose (if merchant seller)

    • Must use term “merchantability,” and if in writing, the disclaimer must be CONSPICUOUS

    • “As-is” disclaimer valid so long as use terms “as is” or “with all faults” or use similar language that makes plain that there is no implied warranty of merchantability

  • Implied warranty of fitness for a particular purpose: If the seller knows and buyer relies

    • Must be in writing and CONSPICUOUS

    • “As-is” disclaimer valid so long as terms “as is” or “with all faults” or use similar language that makes plain that there is no implied warranty of fitness

Is there a Defense to Contract Formation or Enforcement?

To Formation?

• Mistake: Mutual mistake as to basic assumption that materially affects performance

• Misunderstanding: Each party attaches different meanings to the same material term

• Misrepresentation or fraud: Untrue assertion of fact

• Duress or undue influence: Improper threat or influence that deprives meaningful choice

• Incapacity: Because of age, mental illness, or intoxication.

To Enforcement?

• Illegality: The consideration or performance is illegal

  • A party unaware of the other party’s illegal purpose may still recover

• Unconscionability: Shocks the conscience in its unfairness at the time contract was made

• Public policy: Violates a significant public policy, such as restraints on marriage, requires the commission of a tort, or unreasonably restrains trade

• Statute of Frauds:

  • Does the statute apply? Marriage, Sureties, One year, UCC Goods $500+, Real estate

  • If so, has it be satisfied? By a writing? Signed by the party to be charged?

  • If not, is there an exception? Full or part performance (goods delivered and accepted or combination of payment, possession, improvements to land), UCC specially manufactured goods, or merchant’s confirmatory memo

Is there a Third Party Involved in the Contract?

Third-Party Beneficiary: Parties to a contract intend that performance by one party benefits a third party (who is not a party to the contract)

• Identify the third party beneficiary: as intended (can sue) or incidental (cannot sue on contract)

• Contract modification okay until rights vested, otherwise third party beneficiary notice and consent needed

• What are the third party beneficiary rights? Depends on third party beneficiary status as donee (promise is a gift) or creditor

  • Donee third party beneficiary: Generally, may only sue promisor; may sue promisee if promisee tells third party beneficiary about the contract and third party beneficiary justifiably relies to his detriment

  • Creditor third party beneficiary: May sue either promisor or promisee (only one recovery is allowed)

Assignment: Right to contract benefit transferred to a third party after contract formed

• Was there an assignment? Look at present intent to assign; no formalities needed

• Was it a proper assignment? Cannot materially increase a duty

• What are the rights and duties of the parties? Assignee stands in the shoes of the assignor

Delegation: Duty to perform contract transferred to a third party after contract formed

• Was there a delegation? Look at present intent to delegate; no formalities needed

• Was it a proper delegation? Generally okay unless involving personal judgment or skill

• What are the rights and duties of the parties? Delegator still liable; delegatee cannot be compelled to perform unless he has assumed the duty (promise + consideration)

Was there performance or was it excused?

Conditions: Conditions have to be excused or satisfied to obligate both parties to perform

• Excuses conditions by:

  • Anticipatory repudiation

  • Prospective inability to perform

  • Estoppel

  • Waiver

• Satisfy conditions by substantial or complete performance or because of a divisible contract

Discharge of Duty: a duty must be discharged or performed to avoid being in breach

• Discharge a duty by:

  • Modification

  • Recission

  • Impossibility (because of death, incapacity, illegality, or destruction of the subject matter)

  • Impracticability (unanticipated even causes extreme difficulty; proponent not at fault)

  • Frustration of purpose (unforeseeable event frustrates purpose; proponent not at fault

  • Accord and satisfaction (agreement to resolve disputed amount plus payment)

  • Release/novation (both parties agree to change the obligation or party to the agreement)

• Performance must be substantial, complete, or perfect (if UCC)

Anticipatory Repudiation: If before the time performance is due, the party indicates it is unwilling or unable to perform; seek further assurances or, if futile, suspend performance

Is there a breach of contract?

Common Law (Substantial Performance)

• Material: Does not receive the substantial benefit of the bargain or is a minor breach with anticipatory repudiation; non-breaching party may suspend performance and pursue remedy

• Minor: Receives substantial benefit of the bargain; must still perform

UCC (Perfect Tender)

• Perfect Tender: if goods or delivery are defective in any way, buyer can sue for breach

  • If buyer rejects nonconforming goods, seller can cure if time for performance remains

  • Does NOT apply to installment contracts; apply substantial performance standard instead

• Warranty: Breach occurs when the goods fail to fulfill the terms of the warranty

What remedy is available for breach of contract?

Damages: Choose one of these measures depending upon the facts

• Expectation: Put the non-breaching party in as good a position as performance would have done plus incidental and consequential damages (if reasonably foreseeable at the time of contracting), less mitigation of damages

  • UCC buyer: market price minus contract price, or alternatively, cost to cover

  • UCC seller: full contract price plus incidental damages, or lost profits if lost volume seller

  • Warranty: difference in value is measured at time and place of acceptance

• Reliance: Put the non-breaching in the position as if the contract were never formed

• Restitution: Award value of the benefit conferred but not if breach was willful

• Liquidated: Damages to be recovered by one party without proof of actual loss; upheld if damages would be difficult to ascertain and the amount is reasonable

Specific Performance: An equitable remedy that forces performance if damages not adequate

• Inadequate remedy at law: Money damages are inadequate for land, unique goods

• Service contracts: not available unless enforcing a negative covenant, e.g., noncompete

• Defenses: equitable defense of laches, unclean hands; defense to contract enforcement

Approach to corporations essays

Categorize the parties in the lawsuit to narrow the list of issues:

• Identify the plaintiff(s) as shareholder, director or member, or the corporation or LLC

• Identify defendant(s) as pre-incorporation promoters, directors or members

Identify whose rights are being vindicated and if for the entity itself, discuss derivative suit

Memorize issues that arise within the most tested areas:

• Formation and stock issuance

• Fiduciary duties and management of the corporation

• Shareholder rights

Apply the RMBCA unless directed.

How to approach corporation formation

Call of the question: A third party sues a shareholder for breach of contract

Issues: Personal liability of a shareholder and/or promoter liability for pre-incorporation conduct

Analyze:

• Promoter liability for pre-incorporation conduct (promoter ALWAYS liable unless there is a novation)

• De jure formation (shareholder NOT liable for debts of a corporation if validly formed)

• Defective corporation (de facto, corporation by estoppel)

• Exception if validly formed: Piercing the corporate veil (fraud, undercapitalization, or alter ego)

Corporate Formation

Generally: One reason to form a corporation is to protect its owners from personal liability. The other is to promote investment; when all steps are followed, a de jure corporation is formed.

Promoter Liability: Before formation, a promoter is one who works on behalf of the corporation to create and fund the entity, with knowledge the entity is not yet formed

• To third parties: A promoter is personally liable for a breach of contract, even after the corporation is formed, UNLESS there is a novation OR the third party knew of the pre-formation status and agreed to look only to the corporation for performance

• To the corporation:

  • A promoter owes a fiduciary duty to the corporation even before it is formed.

  • A secret profit (e.g., undisclosed commission) on a pre-incorporation transaction is a breach.

Corporate Liability: The corporation is NOT liable for pre-formation transactions UNLESS there is a novation or an express (by the board) or implied (accepts benefits) adoption of the contract

Incorporation

• Procedure: Incorporator signs and files the articles with the state and pays the filing fee

  • Articles of incorporation (required contents)

    • Name of the corporation (MUST include Corporation, Company, Limited, etc.)

    • Name and address of local agent for service of process

    • Name and addresses of incorporators; AND

    • Number of authorized shares in each class of stock

    • Unless stated in the articles, RMBCA presumes “any lawful business” purpose

  • Ultra vires actions: corporate acts that are beyond what is permitted in the articles

    • Ultra vires acts were void at common law, but are enforceable under the RMBCA

    • Shareholders or the state can enjoin acts if equitable; the corporation can sue the directors or officers who committed the acts

    • A third party CANNOT assert ultra vires acts as a defense to escape liability

• Timing: Impacts when the limited liability of the corporation begins

  • RULE: If the state accepts the articles, the entity is formed on the date when the articles are filed, or a later (not earlier) date set out in the articles; filing by the state is conclusive proof the entity is formed

• Defective corporation (failed to form a de jure corporation)

  • De facto: (NOT recognized by RMBCA) corporation NOT formed in spite of good faith effort to comply and acted without knowledge of defects

  • Corporation by estoppel: Applies in a contract dispute (NOT in a tort case) to prevents third party from denying the existence of a corporation when a de facto corporation exists.

• Bylaws: After filing, directors adopt bylaws (day-to-day rules), that can be amended or repealed by the shareholders or directors; in the event of a conflict with the articles, the articles control

• Piercing the corporation veil

  • A plaintiff can “pierce the corporate veil” of limited liability to recover directly from the investor or shareholder based on fraud or unfairness

  • Commonly sought in a contract dispute, but more likely to be granted in a tort case

  • Grounds:

    • Alter ego: Failed to observe corporate formalities; corporation is just the shareholder’s alter ego

    • Undercapitalization: Failure to maintain sufficient funds to cover liabilities

    • Fraud: The parties engaged in fraud or fraud-like behavior

Investing in Corporation

Types of Stock

• Common Stock: A corporation must issue stock that is entitled to vote and stock that represents ownership in the corporation

• Preferred stock: Stock given priority with dividends and during liquidation

Issuance of Stock (stock sold or traded to an investor)

• Authorization: Must be authorized in the articles and by the board of directors; shareholder approval required to sell more than the authorized maximum

• Consideration: (RMBCA) can be money, tangible, or intangible property or future services so long as the value is determined as adequate by the board acting in good faith

  • Par value stock: A stock with an assigned value (usually a nominal amount)

  • Watered stock (NOT recognized by RMBCA): stock sold for under par value

• Stock subscriptions: Agreement to buy stock before formation, irrevocable for six months

• Stock rights, options, warrants: Board of directors of a corporation has authority to issue and dictate the terms

• Preemptive Rights: If the board issues new shares, the rights of shareholders to purchase additional shares to maintain proportional ownership; must be authorized in the articles.

Distributions (Getting Money Out)

Methods: A corporation can declare a cash dividend or buy back shares; a stock dividend or split is not considered a distribution

Authorization: In its discretion, the board may authorize payment of a dividend; a shareholder cannot compel the board to authorize a distribution unless the board acts in bad faith and abuses its discretion

Insolvency: A corporation may not make a distribution if it is insolvent or would cause such, determined under either the equity test or balance sheet test at the time a dividend is declared

Liability: Directors personally liable to the corporation for unlawful distribution beyond lawful amount

Priorities: In paying distributions to shareholders: (1) preferred, (2) preferred participating, (3) cumulative, (4) common

Shareholders

Duties: Shareholders elect the board of directors and vote on fundamental changes

Meetings

• Annual (mandatory to elect board and special (to approval fundamental changes)

• Notice required no fewer than 10 days and no more than 60 days before the meeting

  • Content of the notice must include where and and when the meeting will be held

  • Special meeting notice must include the purpose of the meeting

  • Failure to provide proper notice allows shareholders to challenge actions, absent a waiver

  • Waiver: shareholders will be held to waive defects in notice by a signed writing or by attending the meeting without objecting to the defective notice

• Unanimous consent of shareholder to act without a meeting is allowed if it is in writing

• Failure to hold a meeting will not invalidate the entity or its business

Voting: Only a shareholder who owns shares on the record date is entitled to vote

• Record Date: Fixed by directors and can be no more than 70 days before the meeting; a shareholder who acquires shares after the record date CANNOT vote without a proxy from the record owner

• Proxy: A third party may be appointed to vote if in a signed writing sent to the corporation

  • Valid for 11 months unless otherwise stated

  • Revocable unless otherwise specified and is coupled with an interest

• Quorum:

  • To hold a vote requires a quorum of the eligible shares to be present at the meeting

  • A quorum is a majority of votes representing the eligible outstanding votes

• Number required: Is a quorum is present, a vote will be approved if votes in favor exceed votes against (majority), UNLESS the articles provide for a greater amount (e.g., plurality)

• Cumulative voting (an exception to the “one share = one vote” default): Articles may give shareholders a number of votes equal to the number of shares multiplied by number of directors

• Class voting: The articles can create classes of stock that have greater voting power (e.g., one share = five votes) or no power (e.g., nonvoting stock)

• Voting agreements: Shareholders can enter a contractual agreement to vote their shares a specific way; agreements are subject to contract law (Statute of Frauds applies) and enforceable through specific performance, but need not be filed with the corporation and have no durational limit

Rights

• To inspect records: Shareholders may inspect and copy records with five days notice stating a proper purpose (related to financial interest of shareholders and not to harass or acquire corporate secrets)

• To sue the corporation: Shareholders may bring a direct or derivative action against the corporation

  • Direct: Recover damages for a breach of duty to shareholders individually, causing direct harm

  • Derivative: Shareholder sues on behalf of the corporation to vindicate rights of the corporation

    • Standing: must be a shareholder at the time of the wrong (or acquire shares from shareholder who was) and maintain ownership throughout litigation; shareholder must fairly and adequately represent the interest of the corporation

    • Demand: must make written demand to the board, and wait 90 days before commencing action UNLESS board rejects it earlier (tested against business judgment rule) or waiting would cause irreparable injury; some states excuse if demand is futile

    • Recovery: Any recovery goes to the corporation; shareholders can seek reimbursement for attorney’s fees if the action produced a substantial benefit to the corporation

Liabilities

• Generally: Shareholders do NOT owe a duty to each other or to the corporation but can be liable to a third party (if piercing the corporate veil) or if a controlling shareholder in a close corporation

• Controlling shareholder: Owns greater than 50% or enough shares to enact major changes

  • Cannot use the position of control to cause the corporation to take action that prejudices the minority

  • May owe a fiduciary duty to minority shareholders for selling stock to a looter without reasonable investigation, seeking to eliminate shareholders, receiving a distribution denied to other shareholders or failing to disclose material information

Common Areas of Confusion in Corporate Governance

Shareholders select and remove directors; Directors select and remove officers

Bylaws may be amended or repealed by a majority vote of EITHER the directors or shareholders

Articles may be amended by the directors until stock is issued; after issuance of stock, the directors must adopt the amendment AND submit it to the shareholders for majority approval

If the bylaws and articles are in conflict, the articles control

Management (Directors and Officers)

Board of Directors: Manages and directs the management of the corporation’s business; the board must consist of at least one director who typically serves a one-year term

• Election: Shareholders elect the directors at the annual meeting

• Removal: Shareholders can remove a director with or without cause, unless the articles provide otherwise

• Action: The board takes action through a meeting or with unanimous written consent

• Meetings: Two days’ notice is required for a special meeting unless waived in writing or by directors attending; no notice is required for a regular meeting; directors cannot vote by proxy

• Voting

  • Quorum: Requires a majority of all directors unless articles or bylaws specify otherwise

  • Presence: A director can “attend” a meeting by electronic means that allow hearing and speaking

  • Required number: If quorum is present, a majority vote of the directors in attendance can approve a resolution, provided they are present when the vote is taken

  • NO voting agreements are allowed among directors

• Dissenting: A director may dissent to board action to avoid being liable for its conduct

  • Voting against a resolution will not shield directors from liability

  • Directors must object to the meeting, ensure dissent is in the minutes or file a written dissent during or immediately after the meeting

• Committees: The board may act through a committee; the Sarbanes-Oxley Act requires a publicly traded corporation to have an independent audit committee

• Compensation: Board may set its own compensation; an excess may be a waste of assets

Officers: Run the daily business and are elected and removed by the board of directors with or without cause; officers owe a fiduciary duty of care and loyalty to the corporation

Duty of Care

• Standard: Must act as a prudent person in like circumstances; must use any special skills

• Business Judgement Rule: In the absence of fraud, illegality, or self-dealing, the good faith actions of a director or officer will not be disturbed

Duty of Loyalty

• RULE: A director or officer must act in good faith and in the best interest of the corporation

• Conflict of interest (self-dealing)

  • RULE: A transaction between the corporation and a director (or their relatives) or a business in which the director has an interest that would normally require approval of the board (e.g., salary) is a breach of duty of loyalty UNLESS:

    • Ratification: Disclosure of material facts and approval by either a majority of all disinterested directors or majority of all disinterested shareholders; or

    • Fair: Transaction was fair to the corporation at the time of the transaction

      • Some states treat as a partial defense and shift the burden to plaintiff to prove unfair

  • Remedy: Damages to the corporation; transaction may be subject to injunctive relief or rescission

• Corporate Opportunity:

  • RULE: A director of officer cannot usurp a corporate opportunity UNLESS they first notify the board and wait for the board to accept or reject before seizing the opportunity

  • Corporate opportunity is measured by “interest or expectancy” or “line of business” test

  • Remedy: Damages, constructive trust or corporation gets the opportunity at cost

• Competing Venture:

  • RULE: A director or officer that engages in a business that competes with the corporation is in breach of his duty of loyalty

  • Remedy: Constructive trust on the profits or injunctive relief

Right of Indemnification: A director may seek indemnification for expenses resulting from litigation

• Mandatory: Required if a director successfully defends an action against themself for their role as director

• Prohibited: Not if a director is liable for receiving an improper personal benefit

• Permissive: If the director acted in good faith or had no cause to know their acts were unlawful

Call of the Question: Shareholder sues the board of directors alleging wrongful conduct

Tyical issues

• Shareholder direct suit (may be vindicating a shareholder’s right)

• Shareholder derivative suit (on behalf of the corporation based on breach of fiduciary duties)

  • Directors’ duty of care; business judgment rule defense

  • Director’s duty of loyalty; defense of ratification or fairness

• Remedies for breach

Sale of Securities

Closely Held Corporations: Reasonable restrictions on selling stock are allowed but not enforceable against a transferee UNLESS the stock certificate include conspicuous statement or transferee has actual knowledge; controlling shareholder has a fiduciary duty when selling to outsiders

Federal Cause of Action:

• Rule 10b-5: A buyer or seller using interstate commerce may allege a violation against a defendant who intentionally engaged in fraud or deception causing plaintiff to suffer harm

• Section 16(b): A corporate insider can be forced to return short-swing profits to the corporation

Fundamental Changes

Approval: Any fundamental change to the corporation must be approved by the majority of the board of directors and a majority of the shareholders entitled to vote

Merger: A merger is the combination of two or more corporations when one survives; a consolidation is when two combine and neither survive but a new entity is created; merger with a corporation in another jurisdiction must be permitted by the law of that other jurisdiction

Sale of Assets: A fundamental change when it is a sale or other transfer of substantially all of the corporation’s assets outside the regular course of business; approval required by transferor corporation

Stock Acquisition: To gain control of another corporation without a merger, the corporation may acquire its stock with cash or through a share exchange (RMBCA views this as merger)

Amending the Articles: Once stock has been issued, the articles may only be amended with approval bby the majority of shareholders entitled to vote

Dissolution

• Voluntary: Corporate entity dissolved by approval of the directors and shareholders

• Involuntary: Corporate entity dissolved by the court upon petition by creditors or shareholders

  • By creditors: Allowed only if the company is insolvent

  • By shareholders: Allowed if one of the grounds is shown:

    • Waste of corporate assets (e.g., board is paying themselves excessive salaries)'

    • Illegal, oppressive, or fraudulent conduct (e.g., blocking dividends to raise salaries)

    • Director deadlock and irreparable injury to the corporation is likely (e.g., corporation is losing value)

    • Shareholder deadlock over election of new directors

• Distribution: Upon dissolution, the directors must distribute the assets to creditors, and then to shareholders with preference during liquidation, and finally to shareholders of other stock

Dissenter’s Rights of Appraisal: Forces the corporation to buy a shareholders stock at a fair (appraised) value within 30 days of the demand for payment

• Qualifying shareholder: A shareholder entitled to vote on fundamental change

• Trigger: There must be a merger, acquisition, sale of assets or amendment of the articles

• Procedure:

  • Notice: Written notice delivered before shareholders vote on the action

  • Disapproval: Shareholders must not vote in favor but must abstain or vote against

  • Demand: Shareholders must submit written demand for payment

  • Payment: Corporation pays agreed upon fair market value or the court can appoint an appraiser

Close Corporations

A closely held corporation is one with few shareholders and is NOT publicly traded

Shareholders often serve as both directors and officers and can enter into voting agreements

Formalities are usually relaxed in many states but controlling shareholders have special obligations

Limited Liability Companies

Generally: A limited liability company (LLC) provides it investors (called members) with limited liability (like a corporation) yet flexible management and pass-through taxation (like a partnership)

Creation: By filing articles of organization with the state, the name must include “LLC” or “limited liability company”

Adding a New Member: To join a LLC, all members must consent; all states permit one-member LLCs

Management: Presumed by all members but can be centralized in one or more managers (who need not be members); LLC can adopt an operating agreement that will control over statutory provisions

• Member-managed LLC: Members have broad authority to bind the LLC

• Manager-managed LLC: Members do NOT have authority to bind the LLC

Fiduciary Duties: Duties of loyalty and care are owed by members to each other (as in a partnership) and to the entity itself (as in a corporation).

Transferability: Transfer of a membership includes right to profit and loss but not right to manage

Profits and Losses: Are presumed to be allocated according to a member’s contribution unless the operating agreement indicates otherwise

Termination of Membership: Withdrawal by one member does NOT terminate the LLC and the LLC may elect to liquidate the member’s interest and pay fair market value

Dissolution: Requires consent of all members or can occur for lack of any members or the grounds for involuntary dissolution; upon dissolution and winding up, the creditors must be notified and instructed how to resolve any outstanding claims.

General Principles (Criminal Law)

Act (actus reus): Voluntary act or failure ro act when duty exists

State of Mind (mens rea):

• Specific Intent (FIAT crimes)

  • First-degree murder

  • Inchoate crimes

    • Attempt

    • Solicitation

    • Conspiracy

  • Assault with attempt to commit battery

  • Theft

    • Larceny

    • Burglary

• General Intent: Intent to perform the unlawful act

  • MPC: purposely, knowingly, or recklessly

• Malice: reckless disregard of the high probability of harm; applies to murder and arson

• Strict liability: Does not require any particular state of mind, the act alone will suffice

• Transferred Intent: Intent to harm intended victim can transfer to unintended victim

Causation: The defendant’s act must cause the unlawful result

Parties to a Crime

Being an accomplice or accessory is not itself a crime. It is instead a theory of liability to link a person (accomplice or accessory) to the crime committed by another (principal)

Principal: The perpetrator who commits the required act or omission; can be more than one

Accomplice Liability:

• RULE: Acts with the requisite mens rea to aid the principal before or during the commission of a crime

• Liability is for the planned and other foreseeable crimes; the principal need not be convicted

• Defense: Withdrawal (repudiate aid, or countermand prior aid, and do so before events are unstoppable)

Accessory After the FAct

• RULE: Acts with intent to assist the principal to avoid apprehension after a felony is complete

• Liability is for a separate crime (e.g., obstruction of justice) but not the principal’s crime

Inchoate Crimes (“not fully formed” crimes)

Merger: Solicitation or attempt MERGE into the target crime if it is completed; one cannot be convicted of both solicitation or attempt and the completed crime

Solicitation

• RULE: To invite or urge another to commit a crime with the intent the party commits the crime

• No return agreement is required, but if it happens, they both might be guilty of conspiracy

• Defense: Neither the refusal of the one solicited nor factual impossibility is a defense

Attempt

• RULE: Specific intent to commit a crime AND a substantial step beyond mere preparation

• Defense: Legal impossibility as well as defenses to formation of specific intent

Conspiracy

• RULE:

  • Agreement (express or implied) between two or more persons (MPC = unilateral conspiracy okay)

  • Intent to achieve unlawful purpose (to commit a crime); AND

  • Overt act in furtherance (majority)

• Defense: Withdrawal if before overt act; if after, can avoid liability for crime not conspiracy.

• Liability is for ALL foreseeable crimes committed in furtherance of the conspiracy; if the crime was committed by unknown co-conspirators, liability will depend upon whether it was a chain or hub-spoke relationship.

Look at the language in the interrogatory to help with issue spotting. Does it ask which crimes may the defendant be “charged with” or “convicted of”? Conviction is a higher standard and merger applies

Crimes Against the Person

Homicide: The killing of a living human being by another (including murder and manslaughter)

• Generally: Murder is the unlawful killing of another living human being with malice (common law); a statute may classify murder as first-degree if it also deliberate and premeditated, or if committed during an enumerated dangerous felony

• Causation: Defendant’s act must be both the actual and proximate cause of the victim’s death

• Malice: Intent to kill, intent to do serious bodily harm, reckless indifference to human life (depraved heart), or intent to commit an enumerated felony.

• First-Degree Murder: Specific intent; murder that is deliberate and premeditated or felony murder

  • Deliberate and premeditated

  • Felony Murder Rule

    • RULE: Felony murder is the unintended but foreseeable death caused by and occurring during the course of a dangerous enumerated felony

    • Dangerous felony: Burglary, Arson, Rape, Robbery, Kidnapping

    • Enumerated felony qualifying for the felony-murder rule may be set out by state statute

    • Defense arguments:

      • Defense to the underlying felony

      • Felony not independent of the killing (e.g., aggravated battery)

      • Death nor a foreseeable result (no proximate cause)

      • Death occurred after the felony was complete and defendant reached a point of safety

    • Death of a co-felon caused by resistance by the victim or police is not subject to the felony-murder rule

• Common-law murder (murder with malice)

  • Often classified as second-degree murder

  • A death occurring during a felony, other than an enumerated felony, may be classified as second-degree murder (or if during a lesser crime would be misdemeanor manslaughter)

• Manslaughter: Unlawful but intentional killing

  • Voluntary: Murder committed in response to adequate provocation (heat of passion)

    • Heat of passion: Would provoke reasonable person and with no chance to cool off

    • Provocation must cause fatal act; imperfect self-defense qualifies to mitigate murder to voluntary manslaughter

  • Involuntary: Unintentional killing caused by criminal negligence (recklessness under the MPC) or during unlawful act

Battery: Unlawful application of force that causes harmful or offensive touching

Assault: Attempted battery or intentionally placing one in apprehension of imminent bodily harm

False Imprisonment: Unlawful confinement without consent by force/threat AND moving or hiding victim

Crimes Against Property

Larceny: Trespassory taking and carrying away of personal property of another with the intent to permanently deprive

• MPC: Eliminated the carrying away requirement and focuses on defendant’s unlawful control of the property

Robbery: Larceny from another’s person or presence by force or intimidation

Burglary: Breaking and entering of a dwelling of another at night with the intent to commit a felony

• MPC: Expands to “entering or remaining in a structure with intent to commit a theft”

Embezzlement: Fraudulent conversion of the property of another by one who has lawful possession

False Pretenses: Obtaining title to property of another by fraud or deception

Larceny by Trick: Larceny by fraud or deception resulting in the conversion of another’s property (victim delivers possession of, but NOT title to,, the property)

Forgery: Making of false writing with apparent legal significance and with intent to defraud

Arson: Malicious burning of the dwelling of another

• MPC: Changes “dwelling” to “structure”

Perjury: After promise to tell the truth, willfully makes false statement of a material matter

Receiving Stolen Goods: Receiving control of stolen property, knowing it is stolen, and with intent to permanently deprive; must know goods are stolen upon receipt

Defenses

State of Mind Defenses (negate the mens rea)

• Mistake

  • Of Fact: Honest and reasonable mistake negates specific intent, general intent, or malice; if unreasonable, it will negate only specific intent crime (not general intent or malice crime)

  • Of Law: Generally no defense unless mistaken about an element that negates intent, reliance on government interpretation that later changes, or lack of notice

• Insanity: Four available tests; every test requires the defendant have a mental disease or defect, plus:

  • M’Naghten: Did not know either the nature and quality or the wrongfulness of the act

  • Irresistible impulse: Lacks capacity for self-control to conform their conduct to the law because of mental disease or defect

  • Durham: Would not have committed crime “but for” mental disease or defect; less favored

  • MPC: Lacked substantial capacity to appreciate the wrongfulness or to conform conduct due to mental disease or defect

• Intoxication

  • Voluntary: Applies to negate specific intent only’

    • MPC: negates purposely or knowingly

  • Involuntary: Applies to negate an element including general or specific intent, malice, and voluntary acts (i.e., the required actus reus for a strict liability crime)

Self Defense: A victim can use reasonable force to prevent imminent unlawful harm or force

• Non-deadly force: Not likely to cause death or serious bodily injury; may be used to repel non-deadly force

• Deadly force: Can be used when reasonably necessary to prevent death or serious injury, or to prevent a serious felony involving a risk to human life

• Retreat: Not if using non-deadly force; minority requires if using deadly force if safe to do

Defense of Others: One has the right to defend a victim to the extent the victim possesses the right to defend themself

Defense of Property: May use non-deadly force if reasonably necessary to protect property; deadly force may be used only to prevent a forcible felony, arson, burglary, robbery but no mechanical devices

Duress: Threat of death or serious bodily injury forced defendant to commit crime (but NOT murder)

Necessity: Natural forces not caused by defendant forced defendant to commit crime

Entrapment: Would not have committed crime except for trickery/fraud of law enforcement

How to Organize Criminal Procedure Essay

Follow the interrogatory and if open-ended, organize by defendant and then by constitutional right.

Identify the remedy (exclusionary rule) before the right (constitutional amendment)

Identify the right (constitutional amendment) before the violation (e.g., unlawful search)

Exclusionary Rule Approach

When the interrogatory seeks an answer to whether a motion to suppress should be granted or upheld, begin with the exclusionary rule before discussing the constitutional right:

The exclusionary rule will suppress evidence obtained in violation of a defendant’s rights under the (Fourth/ Fifth/ Sixth) Amendment(s), applicable to the states through the Fourteenth Amendment.

Continue with discussion of the constitutional violation.

If evidence was discovered as a result of unconstitutionally obtained evidence, continue with the Fruit of the Poisonous Tree doctrine:

Derivative evidence discovered as a result of the primary violation is also excluded as “fruit of the poisonous tree” unless an exception applies.

Explain the connection between the primary violation and the derivative evidence.

If an exclusionary rule exception applies, and after analyzing the rules above, continue:

Evidence, whether primary or derivative may be admitted if an exception applies, such as… (list the exceptions applicable in the fact pattern) before discussing each one at a time.

Exclusionary Rule

RULE: The exclusionary rule will suppress evidence obtained in violation of a defendant’s rights under the (Fourth/Fifth/Sixth) Amendment(s), applicable to the states through the Fourteenth Amendment.

Fruit of the Poisonous Tree: Evidence derived from the primary tainted evidence

• RULE: Derivative evidence discovered as a result of the primary violation is also excluded as “fruit of the poisonous tree” UNLESS an exception applies.

• Exceptions: Raised by the state to break the link between the violation and evidence

  • Inevitable discovery: Would have discovered whether or not police acted unlawfully

  • Independent source: Discovered in part by source unrelated to tainted evidence

  • Attenuation: Amount of time/events break chain of causation from the tainted evidence

  • Good-faith reliance: On facially valid warrant or law later struck down; objective standard

• Inapplicability: The rule does NOT apply to isolated negligence by law enforcement, “knock and announce” violations, or to a witness’ in-court identification

Fourth Amendment

RULE: The Fourth Amendment protects persons from unreasonable search and seizure by the government.

• Governmental conduct? Law enforcement or an agent (e.g., inmate snitch hired by police)

• Reasonable expectation of privacy? In the place searched or item seized

  • Yes at home (+ curtilage), hotel room, of overnight guest or on business premises

  • Not in objects held out to the public (e.g., voice, smell, garbage left on the curb)

    • Unless intruded private property to obtain information (e.g., GPS affixed to car)

• Standing? Must be exerting one’s own rights and not those of another

Arrests and Seizures

• Seizure of a person: The officer physically touches a subject or they submit to the officer’s show of authority

• Test: A reasonable innocent person does not to feel free to decline the officer’s request or end the encounter

  • Police pursuit? Not a seizure unless there is an intentional use of force (e.g., forcing driver off the road)

• Detention (Terry stop)

  • Officer must have reasonable suspicion to investigate supported by articulable facts

  • Detention must be brief and only long enough to verify or dispel suspicions

  • For officer safety, the officer may also frisk for weapons if the officer believes the defendant is armed

• Arrest

  • At the time of arrest, the officer must have probable cause (knowledge of reasonably trustworthy facts and circumstances to believe the arrestee has committed a crime)

  • Arrests in a public place do not generally require a warrant

    • If a crime was committed in the officer’s presence, no warrant is required

    • If a crime was committed outside officer’s presence, no warrant is required if a felony

  • Arrests at defendant’s home require a warrant

    • Warrant must be issued by neutral magistrate and supported by probable cause

    • Arrest at another’s home requires a warrant, consent, or exigent circumstances

• Traffic stop

  • Officer must have reasonable suspicion a law has been violated

  • A valid but pre-textual stop is okay; can have ulterior motive to investigate a crime

  • Checkpoint stops

    • At or near the border? Random search without reasonable suspicion is allowed

    • Not at the border? Okay if conducted by a standard (not random) and the purpose is vehicle-related

  • Driver and occupants can be ordered out of the vehicle during a lawful stop

    • A frisk of the driver and/or passengers for weapons is permissible if the officer has reasonable suspicion to believe they are carrying a weapon

    • A limited search of the passenger compartment for weapons is allowed

Search: When government conduct violates a reasonable expectation of privacy

• RULE: To conduct a search, the government must have a warrant supported by probable cause, or the search must meet an exception

• Probable cause exists if there is knowledge of reasonably trustworthy facts and circumstances to believe the items sought are fruit or instruments of crime

• Warrant issuance requires ALL three elements:

  • Supported by probable cause;

  • Issuance by a detached and neutral magistrate; AND

  • Describes with particularity the place to be searched and items to be seized

• Warrant execution

  • Must be executed by an officer without unreasonable delay

  • Knock and announce: Must announce presence before entering, unless exigency

  • Detention, but not search, of other persons okay if they are in immediate vicinity

• Warrant exceptions

  • Exigent circumstances (hot pursuit, emergency situations) justify based on totality of circumstances

  • Search incident to lawful arrest: must be timely searched without delay

    • Scope includes immediate area (wingspan) where weapon might be hidden

    • Search of digital information on cell phone okay only if exigent circumstances

    • Vehicle search is okay if the defendant is unsecured and within reach of the passenger compartment, or if reasonable belief the vehicle has evidence of this offense

    • After arrest, may do routine inventory search of the defendant and of impounded vehicle

  • Consent

    • Voluntary and intelligent based on totality of the circumstances

    • Jointly owned property: Co-owner can consent if the defendant is not present

    • Third party: Okay if person has apparent authority to consent to search

  • Automobile exception

    • Must have probable cause to believe the vehicle contains evidence of crime

    • Can search anywhere probable cause supports, including trunk and locked containers

  • Plain view

    • The officer is lawfully on the premises

    • The incriminating character of the item is immediately apparent

    • The officer has lawful access to the item

  • Evidence from administrative search: If search was for non-investigative purpose

  • Stop and Frisk

    • Detention based on reasonable suspicion of crime; pat-down for weapons is okay for officer safety

    • Must be brief and only long enough to verify or dispel suspicions; can ask for ID

    • During traffic stop, can search for accessible weapons in passenger compartment if there is reasonable suspicion the suspect is dangerous; can frisk driver and occupants outside of vehicle

Approach to Seizure

Trigger Fact: The officer physically touches a subject or they submit to the officer’s show of authority

Test: Would a reasonable innocent person feel free to decline the officer’s requests or end the encounter?

Type of Seizure? Is it a police pursuit, detention, arrest, or traffic stop?

• Police pursuit? Not a seizure unless there is an intentional use of force

• Detention? Look for a reasonable suspicion to investigate supported by articulable facts

For how long? Must be brief and only long enough to verify or dispel suspicions

Frisk? If officer believes defendant is armed, the officer may also frisk for weapons

Arrest? Must be supported by probable cause at the time of arrest

Where?

• At home? At defendant’s home requires a warrant supported by probable cause

• In public? Warrantless arrest in a public place is valid if the officer observed the crime. If the officer did not witness the crime, a warrant is required for a misdemeanor not a felony

Traffic stop? Look for reasonable suspicion (not full probable cause) a law was violated

• Was it at a checkpoint? If at the border, a random search without reasonable suspicion okay. If not at the border, okay if by a standard (not random) and the purpose is vehicle-related

• Were the occupants ordered out of the vehicle? Okay if lawful stop

• Were the occupants searched? Can frisk for weapons if reasonable suspicion they are armed and dangerous

• Was the vehicle searched? Follow the approach to searches

Approach to search

Was there a search? Government conduct violates a reasonable expectation of privacy

Pursuant to a warrant?

• YES: Was it supported by probable cause?

  • Description with particularity?

  • Issued by neutral and detached magistrate?

  • Properly executed?

• NO: Does it meet an exception?

  • Exigent circumstances, Search incident to arrest, Consent, Auto exception, Plain view, Evidence from administrative search, Stop and frisk

Confessions approach

RULE: Defendant should object to admission of their confession based on the Fifth Amendment. The Fifth Amendment, applicable to the states through the Fourteenth Amendment, protects a person against compelled self-incrimination. Statements made during custodial interrogation are inadmissible unless the defendant was apprised of their Miranda rights.

Analyze the elements of the rule, both custody AND interrogation

1. Was the defendant in custody?

2. Was the defendant subject to interrogation?

   1. YES to both? The defendant must be given Miranda warnings

   2. NO to one or both elements? Statement is admissible

3. Were Miranda warnings given?

   1. NO, prosecutor can still use statement, if voluntary, to impeach defendant’s credibility as a witness

   2. YES, did defendant unambiguously invoke their right to counsel?

4. Was there a waiver? A voluntary and affirmative waiver by the defendant after the warnings were given?

Fifth Amendment