Multistate and NY Bar Exam Outline

Table of Contents
Torts ........................................................................................................................................................................ 10 I. II. A. III. A. IV. VI. VII. VIII. I. II. III. IV. VI. VII. Intentional Torts ................................................................................................................................... 10 Defenses to Intentional Torts .............................................................................................................. 15 Negligence ........................................................................................................................................... 19 Defenses to Negligence .............................................................................................................. 29 Harm to Economic and Dignity of Others ............................................................................... 33 Defamation ..................................................................................................................................... 33 strict liability ...................................................................................................................................... 33 Vicarious Liability............................................................................................................................. 36 Codefendants...................................................................................................................................... 38 loss of consortium ........................................................................................................................ 39

V. nuisance .................................................................................................................................................... 36

Contracts ............................................................................................................................................................... 41 Formation ................................................................................................................................................ 41 Defenses against formation .......................................................................................................... 47 SOF ................................................................................................................................................................. 50 Contract Terms .................................................................................................................................. 56 Performance ....................................................................................................................................... 58 Remedies.............................................................................................................................................. 64 Third Party .......................................................................................................................................... 66 Formation ......................................................................................................................................................... 41

V. Excuse Based on Later Events.......................................................................................................... 60

Some Important point under Article 2 ............................................................................................. 69 Real Property ....................................................................................................................................................... 70 I. Estates in Land ....................................................................................................................................... 70

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A. B. C. D. E. II. III. IV. VI. A. B. C. D. I.

4 present interests:...................................................................................................................... 70 _future interests:........................................................................................................................... 70 Special rules ................................................................................................................................... 72 Rules Against perpetuities RAP .............................................................................................. 73 NY rules against S ......................................................................................................................... 73 Concurrent estates ........................................................................................................................... 73

rights of co-tenants .................................................................................................................................. 74 Land Lord and Tenant .................................................................................................................... 74 Right in the property of others .................................................................................................... 75 Conveyances ....................................................................................................................................... 78 land sale k........................................................................................................................................ 78 Deeds ................................................................................................................................................. 78 recording ......................................................................................................................................... 78 foreclosure ...................................................................................................................................... 79

V. Adverse Possession .............................................................................................................................. 77

Constitutional Law............................................................................................................................................. 81 Federal Judicial Bower ........................................................................................................................ 81 A. B. C. II. III. A. B. IV. A. B. C. D. Justiciable, Cases and Controversy ........................................................................................ 81 Supreme Court Review .............................................................................................................. 83 Lower Federal Court Review ................................................................................................... 84 The federal Legislative Power ..................................................................................................... 84 Federal Executive Power ............................................................................................................... 85 Foreign Policy ................................................................................................................................ 85 Domestic Affairs............................................................................................................................ 86 Federalism ........................................................................................................................................... 87 Supremacy Clause, Preemption .............................................................................................. 87 Dormant Commerce clause and Privilege and immunity clause ............................... 87 State Taxation of Interstate Commerce ............................................................................... 88 Full Faith and Credit .................................................................................................................... 88

V. The structure of Con Protections of individual liberties ....................................................... 89 2|Page

A. VI. A. B. VII. A. VIII. A. B. C. D. I. II. III. A. B. D. C. D. E. IV. A. G.

government action ....................................................................................................................... 89 Individual Liberties.......................................................................................................................... 91 Procedural DP ................................................................................................................................ 91 Substantive DP .............................................................................................................................. 92 Equal Protection ............................................................................................................................... 93 Classification based on race or ancestor origin ................................................................ 94 First Amendment ......................................................................................................................... 95 General Rules pertaining to free speech ............................................................................. 95 Unprotected and less protected ............................................................................................. 96 Places available for speech ....................................................................................................... 97 Freedom of religion ..................................................................................................................... 98

Levels of Scrutiny: .................................................................................................................................... 90

Substantive Criminal Law ............................................................................................................................. 100 Intro/Overview .................................................................................................................................... 100 Essential Elements of a crime .................................................................................................... 101 Crimes against the person: ......................................................................................................... 104 Assault Battery ............................................................................................................................ 104 Common law Homicide Crimes: ........................................................................................... 106 Felony murder:............................................................................................................................ 107 NY Murder ..................................................................................................................................... 108 Confinement Offenses............................................................................................................... 110 Sex Offenses .................................................................................................................................. 110 Property Crimes: ............................................................................................................................. 111 Theft Offenses .............................................................................................................................. 111 Habitation offenses .................................................................................................................... 113

C. Possessory Offenses .......................................................................................................................... 114 V. Liability of the conduct of Others: ................................................................................................ 115 A. VI. VII. Accomplice Liability .................................................................................................................. 115 Inchoate Crimes .............................................................................................................................. 115 Defenses ............................................................................................................................................. 118

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A. B. C. D. E. I.

Capacity defenses ....................................................................................................................... 118 other defenses ............................................................................................................................. 120 self-defense (justification) ...................................................................................................... 120 Necessity and Duress ................................................................................................................ 121 Entrapment................................................................................................................................... 121

Criminal Procedure ......................................................................................................................................... 123 Search and Seizure, 14th Amendment ......................................................................................... 123 A. B. C. D. II. III. IV. A. B. C. D. I. Issue one: is the search governed by the 14th? ............................................................... 123 Issue two: Warrant .................................................................................................................... 124 issue three warrant exceptions ............................................................................................ 126 Issue Four: extent of inadmissibility? ................................................................................ 128 Wiretapping ...................................................................................................................................... 129 law of Arrest ..................................................................................................................................... 129 Confessions ....................................................................................................................................... 129 Fourteenth Amendment Volutariness ............................................................................... 129 Miranda .......................................................................................................................................... 129 Sixth Amendment right to Counsel ..................................................................................... 130 NY rules .......................................................................................................................................... 130

Evidence .............................................................................................................................................................. 132 Relevancy ............................................................................................................................................... 132 Public Policy Exclusions ....................................................................................................................... 132 A. B. II. A. B. III. IV. Character evidence .................................................................................................................... 132 defendants other crimes of bad acts for not-Character purposes........................... 134 witnesses ........................................................................................................................................... 134 Testimonial ................................................................................................................................... 134 Impeachment ............................................................................................................................... 135 Privileges ........................................................................................................................................... 137 Hearsay ............................................................................................................................................... 137

writing recollection ............................................................................................................................... 136

Hearsay exclusion................................................................................................................................... 137 4|Page

........................................................ G........... 148 Agency ..................................... B.......................................................................... 166 Reimbursement (indemnification) of Directors and officers ................................................................................................................................................. II.......... E.............................. 158 Bylaws ............................................................. 162 Duty of Care ....... Other basis for directors liability ....................................................................................................................... 165 officers ............................................................................................... II.................................... 151 Partnership .............................. 156 F.......................................................................... 156 A........... Judicial Notice ................................................................... 159 Secret Profits dealing with co...............................................................................Hearsay Exceptions: ............................................................................................................................. Subject matter Jurisdiction ................................................... 162 Directors and Officers .............................. 142 VI............................. Sixth Amendment ................................................................................. 167 NY2 Agency and 3 Partnership ................................................................ H................................................................. A........................................ 161 Consideration for stocks ....................... 151 NY4 Corporations .................................................................................... 166 Shareholders  ............ 147 I........................... 158 De facto Corporation / Corp by Estoppel.................................. C............................................................... III................ 147 Statute of Limitations (SOL) ......................................................................... 153 Organization of New York Corporation ......... C....................................................................................................... I........................................................................... E..................... D.............................................. itself ........................................................................................ 138 V......................................................................................................................... 161 Pre-empted Rights ....................................................... II.......... Formation Requirements .................................................................................................................................. 142 ................................................ 160 Foreign Corporation....................................................................................................................................................................................................... B........................................................................................................ 146 NY1 Practice CPLR ........ I..................................................................................................................................... C........... 165 5|Page .................................... 160 Issuance of Stock ...................................................................................................................... 164 Duty of Loyalty .............................................. 159 Pre-incorporation Contracts .................... B......... 156 Effects of Formation ............................................................................ 160 Subscription .......................................................................................................................................................................................................... IV..................................................... D.......

... II............................ 173 Distribution ................................................................... Fundamental Corp Changes ..... 185 6|Page ......................................................................................................................................................................................... 184 Full Faith and Credits ................................................................................................................................................................................. 184 II................................................. C...................................................................................... 175 Essay Tips .......... 181 NY7 Professional Responsibility .............................................................................................................................................................................................................. B................ 174 Characteristics .................................................................................................................... 176 Mergers or Consolidation.............................................................. 184 Domicile ....................................... VI.................... D...................................................................... 168 SH voting................................................................................................................................................................................................................. SH Inspection Rights ...................................................................................... 179 F........................................................... Choice of Law ........................................................ 178 Inside Trading .................................................................. 178 Corporations Glossary ............................................................................................................ 167 SH Liability ........................................... G.................................................................................................. Recognizing Foreign Judgments ................ 176 Transfer of All of Substantial assets ............................................................................................................ 183 NY8 Conflicts of Law ..................... E................................................................. 178 Freezouts ......................................................................................................................................................................................................................................... 168 SH derivative suits ......... 185 NY Approach........... 177 Controlling Shareholders .....................................A............ VII...... E....................................................... 179 NY5 Secured Transaction /NY6 Commercial Paper ................................ C....................... 176 Dissolution ......................................................................................... 181 Commercial Paper .................................. 177 Controlling SH ........ 175 Amendments to Certificate of Incorporation ........................................................................................................................................................... A................................. 185 Specific Applications .................................... B... D... 173 V..................... 181 I.............................. Shareholder Management ............................................................................................................................................................... C............................................................................................................................. Secured Transaction ............................................................................................................................................................... 184 I................... 170 Transfer of Stock By a SH ............................................................................................. B........................................... A..........................................................................

...................... 205 Ambiguity .............................................. 191 Types of Trusts .................................................... 197 Intestacy .................................... 201 Revocation by operation of law .................................... A.............................. 205 Conditional wills .... 204 Acts of independent significant ............................................. D.................................................................................................................................................................................................................................................................................................................................. 201 Physical Act and Writing ................ A....................................... II........................................ A......................................... B...................................................................................................................................................................................................................... 196 NY12 Wills ...............................................................................................................................................................................................................................................................NY9 No Fault Insurance ............................................................ IV.................................................................................................................................................... IV............................................................................................................... 201 Revival ....................................................................................................... 195 Rules against Perpetuities................................ III............................................... 192 Modification and Termination........................................................ 204 A............. 205 Will Contests............................................................................ 189 NY11 Ny Trusts ...................................................... 198 Wills ........................................ 202 Pretermitted Children (child Not in Will) ..................................... 203 Anti-lapse Statute .............................................................................................. 203 V... 191 I... III................... I..................................................................................................... 200 Revocation of Wills ............................................. Requirements for Trusts .............. 202 Changes in Beneficiary and Property during T’s Life ..... 205 .... 195 Trust Administration ........................................................... 7|Page INCORPORATION BY REFERENCE .................................................................................................... Components of the Will ................................................................................................................................................................................................................................. 205 Mistake ............................................. II.............. 203 Abatement and Ademption......................................................................................................................................................... C...................................................... 205 Contract to Make a will ........................................................... 200 Wills formation .............................................................. 198 Simultaneous Death Act ..... C........................................................................... VI............................................................................................................... 203 V..................................................................................... VI............................................. B........................................................................... D....................................................... B................................... Liabilities of Trustee ......................... 187 NY10 workers Compensation ...

......................................................... G..................................................................................................................................................... 217 Full Faith and Credits............. 219 8|Page ........... 212 Economic Issues......................................E........................................................................................................................................................................................................................... Pre-marriage ...................................... 205 Admitting destroyed will to probate ...................... E............................................................................................................. 207 Power of Appointment .................................................................. 206 RAP............ C.......................................................................................................... 208 F...... 211 A............. B........................................................ 207 Elective Share ............................................ Suspension and Power of Appointment .................................................. D.......................... No contest clause “In Terrorem” .......................................................................... VIII........ 209 NY13 Domestic Relations.......... Testamentary Capacity ...................................................................................................... 215 Provisions for Children ......................... 211 Marriage: Undergoing and Altering ............................ VII............

4. 35 9. Domestic relations 7. Partnerships 13. 13 16. 48 8. 57 5. 13 15. 7 19. Real property / mortgages 9. 57 4.The Bar Outline Topic 1. 9|Page . 51 6. 58 2. 56 5. Secured transaction 18. 107 3. Agency 16. 14 14. Constitutional law Frequency in last 59 exams 1. 3. 4 Multiple choice Out of last 300 1. Commercial paper 17. 17 12. 12 17. 50 7. 26 11. 8 18. Conflicts of law 15. No fault insurance 19. 28 10. 58 2. Torts 6. 50 7. Trusts 10. 30 11. 17 13. Corporation 8. 57 3. Evidence 11. 46 8. 29 10. PR 12. Contract/sales NY Practice Wills Criminal Law/Procedure 5. Worker’s comp 21. Future interest 20. 54 6. Federal courts 14. 60 4. 5 21. 2. 39 9. 5 20.

) Negligence (IV. Survival an wrongful death D. Tort Immunity I. List B. Children.) Product Liability (VI.) Intentional Torts A.) General issues A.) Nuisance (VII. mentally impaired all subject to intentional T 3) Intent = Δ understands consequence of actions NY Distinction Overview Observatio n 10 | P a g e . Intentional Torts A. Defenses (II.) Harm to Economic and Dignitary Interests (III. INTENTIONAL TORTS I. Vicarious Liability B. Parties C. Tortious interference w/ family relationship E. General Issue List of intentional torts Rules 7 intentional torts: 1) Assault 2) Battery 3) False Imprisonment 4) Intentional infliction of emotional distress 5) Trespass to property 6) Trespass to chattel 7) Conversion 1) NO HYPERsensitive Π 2) No incapacity defense.) Strict Liability (V.TORTS Torts Contents (I.

Prima facia Tort n/a see NY  A prima facia tort consists of intentional infliction of pecuniary harm without justification Elements: 1) Intent to do harm. A. Specific Torts: 1. Pecuniary loss is an essential element. Battery Elements (1) Harmful of offensive contact (Intent (2) to Π’s person +2) (1)Offensive contact 11 | P a g e . as distinguishe d from requisite intent for other intentional torts 2) Π must allege and prove special damages.

“if you take another step I will beat you” not assault. apprehension = knowledge. If the Π does not know. who is not scared…. If Π knows the gun is loaded then assault.. conditional words. an empty threat: focus on Π knowledge. E. Focus on normal persons sensitivities Not extreme sensitivities. E.. never battery even if Simple rule anything connected to the Π. Say that while moving your hand might be battery b. words in future “tomorrow I will kill you. battery against the Π 2. Assault Elements (1) Reasonable apprehension (2) Relates to an immediate battery (1)reasonable apprehension  Apprehension is really a misnomer.” not assault 12 | P a g e . d hits horse.  (2)Person   Testable: harmful conduct is too easy.g. offensive = unpermitted. woman riding on a horse and got lost. Apprehension means knowledge. reasonableness.  Apprehension = knowledge (apprehension is not fear)  Testable: bar will small little David goes after a huge barbarian. is there an assault? Bar will try to trick and say: “no assault because no fear” wrong.g. In modern vernacular apprehension means fear. not for the bar. asked for direction. reasonable to assume loaded (2)must relate to an immediate battery a. ot that the Π is holding. Words alone are not assault. if knows its not loaded then no assault. bar q. classmate taps you on shoulder to ask a q.  Unloaded gun.

There is FI c. plaintiff is not locked in if plaintiff can get out. Π doesn’t know there is a secret bat cave by pulling an old book… this is FI because Π cant reasonable discover the passage way  Only wat to leave is naked = FI because embarrassment Examples of FI  Telling Π that he won’t get his luggage back if he leaves airport 4. or actual injury. d has a gun.  Old exam q: Butler locks guest in the house mansions library. Threats are sufficient. says if you leave this room I will shoot you. (threat. In basic English. o Airline employee’s let a disabled passenger but ignore her when they arrive they simply ignore her. False Imprisonment (“FI”) Elements 1)act of restraint 2)bounded area 3)causation (1)Act of restraint 3 points) a. Omission can be an act of restraint if there was a previous duty. fear must be reasonable) o If you leave I will call cops = FI (most common FI) b.  Lock sleeping persons door no FI (2)Bounded area  An area is not bounded if there is a reasonable means of escape that the Π can reasonable discover. The Π has to know that he was restraint. There is false imprisonment.3. Intentional Infliction of Emotional Distress Note 13 | P a g e  The one intentional tort that can be done w/o intent but .

E.  2) an exercise of 1st amendment rights is not outrageous …  Indicators/hallmark of outrageousness:  The d’s conduct is repetitive of continuous. ….  Innkeepers and carriers. Keep in mind it must be intentional or reckless. o a) young children. Remember common sense. (2) Must cause an severe emotional distress  There is no specific evidentiary requirement  How do they test this? MBE will negate it subtly. tell a child o b) elderly o c) pregnant woman. this entities are supposed to be nice and courteous.  Definition of outrageous: when it exceeds all bounds of decency tolerated in a civilized society. (may not be helpful for an answer but good for definition section)  There are 2 red hearings:  1) mere insults are not outrageous. “A was mildly annoyed by the prank” no IIED since it is only mild distress and not severe emotional distress 14 | P a g e .g.with reckless conduct (note: out of the 7 intentional torts. It is outrageous to attack someone’s emotional Achilles heel. Simple carelessness is not enough  Π is a member of a fragile class of persons.  Exception: If Δ knows of the Π’s super sensitivity then it is outrageous. the only one that has “intentional” in the name can be committed with even reckless conduct) Testable elements Testable Elements (1) Outrageous conduct. Must know that the pregnant woman Π is pregnant.

includes money) This is the private course of action for vandalism and burglary of personal property Conversion: “you dilebratly break it. Trespass to chattel 7. In many cases conversion is a forced sale. Trespass to property Testable elements Elements: (i) Intent (ii) to go onto the real property (iii) Causation (no requirement of damages. propelled onto the land  Even if beneficial to the land  Must be a physical invasion  Shining light on the land is not (2) must be an interference with your possessory rights  If you trespass on a rental property the landlord has not action because he does not possessory rights (3) Includes the reasonable vicinity 6. Mistake of ownership will NOT immunize the Δ.5. Conversion   Both involve interference with personal property (includes any property that is not buildings and land.  Can be projected. &    DEFENSES TO INTENTIONAL TORTS 15 | P a g e . can get nominal) (1) Intent to go onto the land  need not know that the land is of another just simply intent to enter the land. you bought it” Π has the option to collect for the full value not the repair of damages.

Child may consent to letting another person borrow her dolls (2) Must express consent. playing sports there is implied consent to all contact in the game. Held implied consent. Implied consent based on Π’s conduct and surrounding circumstances. she says yes. sit in a barber chair without saying a/t. E. barber cuts hair…implied consent. Must be reasonable ii.…. i. no battery. alone…. May be rational to believe from the circumstance that touching is reasonable… iii. Depends on age and capacity.g. A child may consent to wrestle with another. b. rolled up her arm.g.g.left her hand out …doc gave her a shot…. Defenses to Intentional Tort (1) Consent (1) You do need capacity to give consent  E.g. Latter finds out he is not doc. ii. Π stood in line. May be obtained through custom or routine.g. E.  Testable: Expressed consent is void if obtained through fraud or duress. E.g. 16 | P a g e . the express consent is void because obtained fraudulently (3) Implied consent a. go into a doctor office nurse tells lady to undress and person dressed as doc asks lady if he can touch her.  E. a drunk cannot consent to punching it face (1) Child may consent to certain intentional torts. Assumes rational interpretation of the situation. on a hip everyone was getting vaccine. old case. “body language consent” i. people dating for many months. Very strait forward.B. E.

If you use excessive force you will be liable. no duty to retreat. 2) Private necessity is never liable for nominal or 17 | P a g e .g. If there is an immediate or imminent public disaster no liability to destroy property…  E. Δ shoots the dog to save dozens of incident children. (3)Necessi ty (1) Public necessity   in a public necessity scenario Δ has no liability. (2) Protective Privileges a. 1) Private necessity remains liable for compensatory damages. Foot operation but doc decides to give nose job. May use amount of force that is reasonable necessary and no more i. b. doctor operating on a part of the bay remote from the area had consent to operate on. even if it is not you still may invoke the defense c.(4) All consent has a scope. or imminent  No revenge. Dog owner sues you on conversion (“converting the dog”) Δ has affirmative defense of public necessity (2) Private necessity  Δ is acting out of self-interest.g. Unless: i)cannot do so safely ii)castle iii)police officer iv)assisting officer MBE: NO DUTY TO RETREAT Exception: NY: castle doctrine. no consent to shoot opponent  E. Must react that is happening right now. There is battery. dog with rabies attacks a group of children at a park. Reasonable belief that the threat is genuine  If you reasonable believe that the property is yours. Exceed the consent then you go back to tort.g. playing football.  E. consent to get tackled. o  Never permitted to use deadly force to protect property  Cannever use mechanical killing devise to protect … Deadly force Duty to Retreat:  NY Distinction: Before you use deadly force in NY you have a duty to retreat.

Farmer will lose.) door is open and sleeps in the corner.  c.  Hypo: stupid hiker in middle of the snow storm. Farmer will win. he is about to die. No defense…  b. Right of sanctuary. finds shelter in a farm house.) he breaks the window and sleeps in the farm house. 18 | P a g e . Farmer sues for broken window.) enterd the farm house and turns out that the farmer is there. Farmer tries to kick him out. Farmer must let him stay until the emergency is over.punitive damages 3) As long as the private necessity the Π may not evict the Δ trespasser from property until the emergency is over. Farmer sues for nominal damages or punitive. Private necessity is defense for nominal and punitive.  a.

2.e/o is foreseeable Exception: a. Doctor misdiagnoses certain birth defects. Doc is negligent. Doctor messes up birth control  No recovery available NY: if child is born alive and is born with deformities baby gets separate cause of action in own name If child dies.II. not foresebbale  Minority. 4. Rescuer is always considered foreseeable (see firefighter rule below) Duty of care to prenatal injuries: i. Δ pushed P1 on LIRR who dropped a package of fireworks hit p2 very far away not in zone of danger. only parent brings cause of action Standard of care 19 | P a g e Standard of care: RPP Reasonable prudent person objective standard . 3. ii. NEGLIGENCE (50% of Torts Qs on Negligence) NEGLIGENCE Issue Elements Rule 1.Duty of Care To who is duty owed? Owe a duty to foreseeable victims Zone of danger  Palsgraf case. Defendant negligently runs into a pregnant lady. Duty Breach Causation Damages NY distinction 1. Turns out that child is born with defects  May recover out-of-pocket expense but no emotional distress iii.

6.Child engages is adult activity .g. 5.. and experience -subjective test Exception: . Patient incompetent Profession als 20 | P a g e .. Commonly known risk (surgery requires cutting) ii. Consent to no disclosure iii. car. 2.Conduct is measured against what what average person with average mental capacity would do.) Exception . intelligence. 4.If Δ has superior knowledge of skill is held to the higher standard. 3. under 5 immune from negligence b. note blind people don’t fly planes. over 5. So move standard up for smart and strong but not down for stupid and weak 6 special standards of care 1. education. RP Blind P. Δ mental state is not taken into consideration But physical characteristics is.) (2) Professional Standard: required to possess the knowledge and skill of a member of the profession in good standing And similar community -medicine: trend is national trend Additional duty to Docs: Duty to disclose risk of treatment unless i. Children Children Professional Land owners Statutory borrowing No duty to act affirmatively Emotional distress (1)children a.. Standard what RRP with Δ physical attributes. snow mobile. E.*testable: usually involves motor vehicle (jet ski. obligated to exercise care as like age.

Make artificial conditions and b.Land liability iv. condition likely cause injury  NY abolished the distinction of categories (trespasser. A reasonable person does not take the same measures to protect a trespasser as they would to an intitee. Only if owner knew of condition Exception: trespassing children  Attractive nuisance a.. So distinctions are still relevant for but under the RPP standard. The standard is the reasonable prudent person under the condition. owner should be aware of b. concealed c. licensee. invitee. B)Licensee Defined: one who enters onto the land with the possessor’s permission for own benefit not for benefit of possessor (solicitors…) Duty to (i) Warn of dangerous conditions (ii) Exercise reasonable care 21 | P a g e .) they just use the reasonable prudent person standard. Harmful in telling (patient would get heart attack …) (3) Premises liability Off premises: no duty to people off premises for natural conditions. That pose risk of death or severe bodily harm d. Duty for artificial conditions On premises: 3 types of A)trespasser. B) licensee C) invitee A)Trespasser:  No duty to an undisclosed Tres  Disclosed or anticipated Tres duty to 4 part test a. knows children are there c.

Warning satisfy duties.. ran into Π.g. o We face this every week. Π can only ask court to borrow o Example: Δ didn’t stop at a red light. Π asks court lets use proof of criminal breach as negligence per se. thereby satisfying the duty of care. When can Π do that? o 2 part test o 1)Class of Person Π must demonstrate that he is a member of class of persons that statute seeks to protect o 2)Class of Risk Π must demonstrate…that the accident is among the risks that statute seeks to protect. (2) Possessor can fix the problem. o Criminal standard has no binding standard on the civil standard. o Hypo: marijuana  NY firefighter doctrine is partial abolished.C)invitees Come in response to invitation of possessor (store. guest…) Duty (i) Same as licensee pluse (ii) Duty to make reasonable inspections Note:  Invitees loses invitees status once leaves scope of invitation  E. licensees about the duty. shopper goes into storage room of a store. they satisfy the duty they place the yellow warning… (end of premises liability) (4) Statutory Borrowing  Π may ask the court to borrow a relevant criminal statute’s standard for the standard of care. Exception (a) Firefighter doctrine  FF cant bring action from obvious harms  Rational assumption of risk End note: Satisfying duty  1) no problem. possessor owes a duty to invitees. o Exam answer: A is liable to B unless he warned B about the danger.  (3)adequate WARNING. wet floor.  22 | P a g e . FF may sue a negligent arson… FF may not sue employer.

Formal relationship: innkeeper. defendant caused the peril i. You never have to put your own life in jeopardy. landlordinvitee. you do may not violate statute  Ex driving. c. Informal relationship: friends….guest. ii. Exceptions o 1)if obeying a statute would be more dangerous than violating. 23 | P a g e Bystander:  NY adds that the bystander must also be in the . Caused regardless whether Δ created peril negligently or not o When the duty arises the duty is to act reasonable. o Π must prove that after the moment of distress there was subsequent physical manifestations of the distress. chose to help. child runs into the road. Modern trend is duty exists b. The obvious manifestation is a heart attack. Δ swerves over double yellow line … no o 2) if compliance was impossible under the circumstances (5) No duty to act affirmatively (no duty to rescue) Exceptions: a. (recently some states added veterinarians) Negligent infliction of emotional distress (6) Emotional Distress  Defendant does something to a Π that has no physical damage but emotional damage Requirements: (1)zone of danger and (2)some physical symptoms 3 special scenarios  1) near miss. The reason is to rule out fraudulent claims. A gratuitous rescuer is liable for negligence i. Good Samaritan protection only applies to nurses and doctors who chose to gratuitously rescue. “zone of danger o Put Π into a zone of physical danger o Δ negligently flies his car off road and goes within 10 inches of Π body. preexisting relationship triggers duty i. So the court is liberal with the physical manifestation.

Δ can rule out negligence or prove no negligence 2. it relates to breach. close family member  b. zone of danger himself. (before discovery) allowed case to go further although can prove that Δ has negligent Two requirements 1. o Point is we need to make sure that we pulled the right Δ into court. must see it as it happens contemporaneous witness f (ring side seat)  c. o Key is normally. Π must prove that look at world barrels don’t normally fall out of the sky.g. Δ must know.Breac h 2. 24 | P a g e . Π is mentally distressed because V has been hurt o Only if:  a. its no guarantee of Π success it is only a method of avoiding directed verdict. Note: Res Ipsa case only lets the case go to the jury. e.  2) bystander o Negligent Δ injures a 3rd party.Rashes satisfy. personally observed or perceived 3)preexisting business relationship o Example: medical o Example: funeral parlor is negligent in their work it is reasonable that the 3rd party will be emotionally distressed. Burn v Bottel. o E. Π walking past bakery.g. Also can rule out all non-negligence possibility. Breach Δ breaches a duty when conduct falls short of the level of applicable standard of care owed by to the Π  Simple and strait forward Res Ispa Louqitor “the thing speacks for itself”  Breach doctrine utilized by Π who lack information about Δ’s activity. prove no earth quake… o Defense. a barrel fell on his head as he walked by. The event is normally the result of negligence. The accident of this type is normally the result of negligence of the person in the Δ position.  2.

o Example: (before strict liability days) Π purchased chewing tobacco. 3.Causat ion Δ’s action must cause the Π harm 2 types 1) actual cause 2) proximate (legal) cause always start with actual then determine if there is legal/proximate note in semantics: o Defendants are not factual causes.. H: we could not find a reasonable reason that a human toe will be found in chewing tobacco. Each was theoretically causing 25 | P a g e . The fire merge cause damage. Courts then use substantial factors and each are individually liable  E. boat owner was negligent for failure to put out life jackets. On an essay do NOT say “defendant actual causes….found out it was human toe.” Actual cause But for causation  But for the Δ’s action the Π’s would not have suffered injury. kept eating…. Π was no where near life vest… Exception to but for causation a..made him foam at mouth.” Rather “the defendant’s breach was a factual cause. they each set out a destructive forced. fires merge..  Imagine parallel universe where everything happens but Δ action would the same result have happened  E. Substantial factor analysis  Merged caused: 2 negligent Δ they each conduct a breach. 2 separate Δs start a massive forest fire. breaches are factual cause.” o Never say the breach was “the cause” there are infinite causes so say the Δ’s breach was ‘A’ factual cause.g. first bite was alright. Negligence case.g.

it is foreseeable that risk creates rescue 26 | P a g e .  Solution.g.the entire damage. shots cartridge and many little pellets. Unascertainable cause  E. o Note: doc will also be liable 2.. Problem: only one breach caused the harm. Π cannot prove that either Δ individually is liable…. o E. 4 precedential situations (well settled quartette) 1.g. Rule: when no ascertainable cause and both breached the duty burden of proof shifts to the defendant’s Proximate legal cause  Π must show that what happened in this particular instance was a foreseeable consequence of the breach. The Δ saw it coming o because every act has infinite consequences we need a limit on liability Π must convince us that liability is fair. Both Δ’s breached a duty but we don’t know which one and Π has burden of proof on every element of the case. 3 people go hunting quale. 2 of the 3 shot their guns one pellet hits 3rd hunter in the eye. negligent doc negligently puts leg in a too tight cast causing amputation. negligent Δ hits Π. o Rule: Δ is liable. 3rd guy sues the other 2. So technically no but for. It is within the scope of the breach. rescuer comes and further injures Π. Rescuer o E. negligent driver. first step find quale. rational. shot gun. sensible of coherent Indirect cause scenario. it is foreseeable that Π must seek medical attention and medicine is not perfect.. Courts then use substantial factors and each are individually liable b. Intervening medical negligence (malpractice). o Rule: Δ is liable.g.

Subsequent disease or accident o E. Π recovers from all damages suffers even if the great in  Recovery in tort will be scope reduced by o Take your Π has you find him. Intervening protection or reaction forces o E. injunction) remember damages is an element to negligence. negligent driver……gets leg cast. car drives into shopping mall. creates stampeed. is reduced by o Has never been on the exam. that amount. 27 | P a g e . 3rd party stampedes Π. Δ sources is liable for all damages despite normal person such as would not have that damage. any money  E.g. causing him to shatter every rule in body. insurance from o If you have health insurance from work.g. insurance.Damag 2 types of Damages awarded es 1. you don’t behave as a reasonable prudent received person. its foreseeable 4. damages reduced by that amount. o Rule: liable for 3rd parties injury. At Law Money  NY specific rule: (not majority  The egg shell skull principal rule) o Once a Π has established all elements of a case.  Applies to all torts o  NY specific rule: (not majority rule) If you have  Recovery in tort will be reduced by any money received from health other sources such as insurance. damages is work. Π falls the next day…breaks a new area… o Rule: careless cause injury it is foreseeable that they will be in a weaken condition and other injury will come 4.Equitable (e.g.g.At law (Money) 2.3. your breach is knocking over humpty from other dumpty. no damages no cause of action.

g. (i. mandatory (i.o Has neve r been on the exa m.  E. s/o interfering with k. Equitable Relief  See CPLR for specific  Specifically injunction equitable  2 kinds issues o Preliminary (beginning at law suit) o Permanent (at closing after merits)  Either injunction can be negative. go out and do xyz)  Permanent o After you prove liability on the merits you must prove 4 things a) No adequate remedy at law (money will not compensate me on this) 1) Where Δ has no money 2) Harm can’t be relieved with money 3) Repetitive action b) Property interest or protective right at stake. do not do x).e.e. property …  Modern view there is a protective right in every tort (this prong really irrelevant) c) Injunction is enforceable  The more complex the conduct the harder to enforce  Negative 28 | P a g e .

g. Π has not sued promptly and Δ has changed position in reliance.…then builds house. Π sees this. If Π did something unkosher  E. Π moves for injunction against newspaper from a liable case…. Employee can counter owner was not careful protecting the secret (ii. Π should have sued early or said something early (iii. neighbor starts to dig on your land.) Laches. DEFENSES TO NEGLIGENCE Common law 1)assumption of risk 29 | P a g e  NY: Primary . then fill up foundation.) injunction in NY where court has PJ more likely The balance of hardship must tip in the Π favor  The benefit to the Π must outweigh the Δ from being enjoined Unclean hand. then watches him dig whole.g.d) Defenses against injunction (i.  Preliminary injunction  2 part showing a) Likelihood of success on the merits b) Demonstrate irreparable injury if injunction is not granted  E. prejudicial delay.) First amendment limitations  E.  CPLR will go through extra requirement A.g.g. no injunction  E. trade secret case. if no injunction secret out and can’t go back. trade secret owner moves to enjoin employee.

No recover if injury in normal play of the game Seatbelt  Failure to where a seatbelt is an affirmative 30 | P a g e . primary assumption of risk. There isn’t no duty rather lower duty. the duty of care merely refrain from reckless conduct.2)contributory negligence Over whelming states have abolished this including NY. This is a special assumption of risk in special cases such as sports contests. assumption of risk.  This should not be confused with assumption of risk. In sports there reasonable prudent person is different.

May not use as evidence on the issue of liability.defense but Trier of fact may consider nonuse in mitigating the damages. Proper care means:  Reaso nable prude nce for your own safety  Failur e to observ ea Selfprotec tive statut e (jay 31 | P a g e .  Ny recognizes comparativ e negligence: o Plaintiff failure to exercise proper care for his/her own safety.

o There are no rule that determine number.walkin g) o When established Π failed to exercise proper care…. Comparative negligence  Pure comparite negligence. its simply left to the jury to assign o Once the percentage of fault is assigned the Π damages are reduced based on the amount Π is assigned fault. a Π will get something . if Π is 50% or more negligent then Π get nothing only talk about modified if bar brings it up and only on the 32 | P a g e  .the jury will assign the respective degree of fault. Π 90% at fault he still get 10%  Modified comparative negligence.

Public official or public concern - IV. DEFAMATION A. HARM TO ECONOMIC AND DIGNITY OF OTHERS A. Private person B.multistate III. STRICT LIABILITY Strict liability Prem a facia case: Elements: (1) the nature of the Δ’s duty impose and absolute duty to make safe (2) the dangerous aspect was the actual and proximate cause of Π’s injury (3) damages 3 kinds: 1) Animals 2) Abnormally dangerous activity 33 | P a g e . Private defamation 1.

Nuclear energy. 34 | P a g e .  Exception: animal with vicious propensities and you have knowledge then strictly liable  Knowledge of vicious propensities?  Previous similar actions. y  2)the activity is not a matter of common usage in the community. The bar will only ask about lions. After one dog bite you are on notice  NY case with horses  Never strictly liable to a trespasser on your land. Even if you have a known vicious dog. Examples:  blasting. Study on anthrax. tigers and bears… they are not interested in fighting you in Albany with a zoology book. For the bar exam is very debilitating hurtful practice. Story asking prof about elephants and bees..3) Product liability Note: in most cases of strict liability the Δ’s safety measures have no influence on downgrading to normal negligence 1) Liability for Animals a. Always strictly liable. the definition is 2 part rous  1)activity is one which cannot be made safe. This is where they test you. which is great for being a lawyer.  Using highly toxic or biological material. radiation Safety precautions will not save Δ.safety precautions should be ignored. even when reasonable care activit is exercised. a. anim als    Abnor 2) Abnormally dangerous activity mal dange Rule: Rilans v Fletcher. Domesticated animal  General rule: there is no strict liability for domesticated animals  Distinction MBE: liable for negligence for animal related injury  NY no negligence liability for domesticated animals. Wild animal Simple rule you own a wild animal you’re strictly liable safety precaution don’t help to down ground to regular negligence So how do they test? Try to put you off with safety precautions…. Moral is. using explosives. law school it becomes second nature to look for ambiguity.

E. 2. Lessor can be held strictly liable. Manufacturing defect. Foreseeable plaintiffs (don’t need privity) a. ii. one-in-a-million. sit on chair and breaks no strict liability. Selling on e-bay is a casual seller and cannot be strictly liable.Produ ct liabili ty 3) PRODUCT LIABILTY 4 elements: 1. 2. 3. Product must be defective 3 kinds of defects: 1. Defect 3. Product didn’t change 4. Safer than current version ii.  If Π shows there is a design defect that could have been safer. Design defect: if it could have been built another way. cost effective and practical then strict liability  Government standards: o If product does not meet federal standards = 35 | P a g e . 3) manufacture b. anomaly. E. Practical. iii. When it differs from all other product that came off the assembly line. 1)retailer. Merchant Testable: Or no privity required i. 3 part test for hypothetical alternative design i. Service provider. Or restatement: departs from intended design. doctor office. irregular. 2)wholesaler. every entity in the distribution chain can be held strictly liable. 1. Not merchant no strict liability. Merchant 2. often make products available incidental to the service. Cost effective (not significantly more expense iii.g. Abortion.g Hertz can be help strictly liable iv. that would make it more dangerous than consumers would expect.

practical alternative. shining light into his property The theory is that one should be to enjoy their own property without unreasonable interference Hard to test. even without fault o E. VICARIOUS LIABILITY Vicarious liability Vicarious liability is suing a purely passive party for the action of an active tortfeasor. cost effective.  defective design o If does meets gov reg ≠ prove not defective only evidence If product has residual risks that cannot be designed away and consumers are unaware.g. NUISANCE     Testable: when you have to land owners with competing land use Defendant can be liable for acting deliberately. Sole reason that a relationship exists Rule 36 | P a g e .g. E. carelessly. use a chair for standing on. Π was making a foreseeable use of the product. rule: nuisance is the interference with the use of land to an unusual degree. i. Foreseeable use does not have to be a proper use. VI. The product is defective unless there are adequate warning Adequate warning does not help against design defect if meets 3 part test (could have made a safer. No Grandmother argument V. Product did not materially change c. b.

E.Responde at Superior Common cases o a) Respondeat Superior (Employeeemployer) o Must be scope of employment (see agency) o Generally employer not liable for intentional torts.g. Δ hires IC to paint site. Proof of ownership raises a rebuttable presumption of permission and consent  Person granted permission need not operate mere presence is enough  Federal statue 37 | P a g e .  Δ lend driver car. repo man o Hiring party-independent contract no vicarious liability  Exception: liable to invitee on your property that gets injured from an independent k  E.   No punitive unless: (i) Employer was grossly negligent in hiring (ii) Employee was entrusted with general management (iii) Employer authorized or ratified Permissive Use statute  No VL for intentional torts  Registration is PF evidence of ownership.g.g. Misuse of force still use vicarious liability (e. o General rule: no VL. Gets in accident on the way to VL. club bouncer for punching patron for disrespecting him  Job that generated friction or animosity. o Exceptions:  Job requires use of force. driver gets in an accident no VL  Exception: lend you my car to an erroned for me. IC is painting in store and paint falls on customer then VL b) Automobile owner-driver.

 Maj: (MBE) jury assigns percentage and we go based on the percentages. Parent is directly liable no need for VL. parent leaves 9mm loaded gun on kitchen table. T can collect 10% from B. employee hits o Indemnification: a non-manufacturer. jury finds T 90% liable and B 10% liable. CODEFENDANTS Some questions will state that there is a judgment from one or more Δ’s. o Exceptions: o Indemnification: vicarious liability can shift the loss to the active tortfeasor  E.g. 9 year old child takes it and causes damage. d) Dram Shop preempting NY for car rentals. o E.c) Parents-children.g. 38 | P a g e .  Parents liable up to 5k for willful and intentional property tort of minor children over 10  Duty to protect against infants foreseeable imporvenant use of dangerous equipment  Vendor who “unlawfully” supplied and intoxicated vendee with alcohol liable to 3rd parties…  Unlawfully includes visibly intoxicated an minors e) Common carrier  Has a highlen non delegatable duty of care VII. there may be a case where one Π fully collected from one Δ. gets indemnification from manufacturer. Considered owners for VL but only if negligence or criminal. typically retailer. E.g.. Π collects all from T. o General rule: parents are NOT VL for tort of their child o Note: many cases parent will liable for own conduct no need for VL.

LOSS OF CONSORTIUM  covers 3 type of o 1)loss of household services o 2) loss of society o 3)loss of sex (in theory should use the recovery on substitute services) Must prove loss. the uninjured spouse can collect in his own name  39 | P a g e .VIII. in any case where the Π is a married.

g.Some key take aways Negligent emotional distress Physical symptoms Exceptions Intentional emotional distress Need physical symptoms (exceptions) Don’t need physical symptoms There are other torts involved  E. Can recover ED since there is the physical harm of continued rash 40 | P a g e . see Q#10783 Doc very negligently misdiagnoses patient and tells him an itchy rash is deathly cancer.

created by words of parties 2) Implied-in-fact k created by conduct of parties 41 | P a g e . V. CONTRACTS Applicable Law Issue Article 2 SOG. FORMATION FORMATION General K = legally enforceable agreement Types of k: 1) Express k. services.CONTRACTS Approach I. IV. II.… NY distinction and Article 2A A2A: sale of leased Goods Does NOT include lease real property  NY adopted A2A. Terms Excuse for non-performance Remedies Third-party issues III.  MBE does not I. SOF b. Only applies to sale of goods Goods= movable personal property Merchant definition: Common law Applies to all other k’s e. Applicable Law Formation a.g. real estate.

Characteristics: (1) Bilateral k: performance andy reasonable way (2) Unilateral: where an offer can only be accepted by performing A. contest Not a k but should be noted  Restitution/ Quasi in Fact k: not a k but protects against unjust enrichment where k law would yield unfair result. o Remedy of last reort o E. prizes. party partially performed under invalid k b/c of SOF. Offer says acceptance only by perfoming B. Revocation 42 | P a g e . Lapse 2. Terminating an Offer 1. 1) Open Price court will read in a reasonable price 2) Requirements k enforceable despite uncertain quantity Defined: Common law NY distinction and Article 2A General rule: Need to specify:  Price  Quantity Exception B. Reward. Was there an Offer? Article 2 Definition Advertiseme nts Indefinitenes s Offer = Manifestation to be bound Advertisements are not offers If a term is to indefinite the k cannot be enforced. Elements: (i) Π conferred a benefit to Δ (ii) With reasonable expectations of being compensated (iii) Δ knew or had reason to know of the expectation and (iv) Δ will be unjustly enriched A. party will get quantum merit work done but remedies of breach of k.g.

Offeror engages in conduct of revocation and ii. Promise not to revoke  43 | P a g e . Terminated when offeror revokes 2 types: (A) Direct revocation (B) Indirect revocation: through an act of offeror but requires: i. Revocation General Rule: offer can be revoked at any time before acceptance. Defined:  Sale of goods  By a merchant  Signed writing  Promise to keep offer open  Only open for a reasonable time max 3 months (3)Foreseeable reliance before acceptance  Do not always need consideration  Cant revoke if offeror: a. Signed b. Laps 2. Rejection 4. Writing c. Offerree knows of the conduct. consideration in exchange for promise not to revoke offer Exception to revocation: On MBE need consideration Normally need consideration unless signed. Death 1. (1)Option k. writing Exception promise w/o consideration Pro (2)Firm offer: Always need Only under A2 consideration to enforceable w/o hold offer open consideration.3.

Rejection General rejection by:  Rejecting offer  Counter offer  Conditional acceptance Counter offer is rejection Mere bargaining or inquiring is not Conditional acceptance is rejection But the offeror may accept notable distinctions: SOG No Mirror image rule Battle Forms Adding changes will not prevent acceptance under A2 but term will not necessary be Mirror Image Rule The acceptance must mirror the offer.e.g. sub k gives offer to contractor who places a bid. sub k knows c is reliance … (4)start performance in A unilateral k  Mere preparation is not start performance  Offer can be revoked until performance is complete Timing of revocation When received Distinguish from acceptance that is effective when placed in mailbox 3. Very strict any variation is a 44 | P a g e .

g acceptance by reporting to work on Monday… (1)bilateral = acceptance (2)unilateral ≠ acceptance Need completion for acceptance Note: Offeror still cant revoke offer Simultaneous Simultaneous acceptance and breach acceptance and Acceptance upon completion and offeror may revoke Start performance Improper performance 45 | P a g e . benefits or remedies = material 4.included: When offeree’s term will be included: 1) Both parties are Merchants 2) No material change 3) No objection within reasonable time Material change  Hardship  Surprise  Customary will not be material Note: Substantial effects on economics. Has there been an Acceptance? Conditions Language of the offeror controls e.Death Death terminates contract rejection C.

So mail rejection on Sunday.Exception Accommodation is not acceptance e. Call to accept in Monday Offeror receives rejection in Tuesday The offer is rejected. remember Rejection = when received Acceptance = mail box rule Does buyer need to receive the letter? Exceptions to mailbox rule: breach Unsolicited merchandise from a merchant is considered a gift Timing of acceptance Mailbox Rule exceptions 46 | P a g e . but not random silnce General rule: Mail box rule when acceptance is placed in the mailbox even before offeree receives it. Offeror order a coffee offeree says I don’t have coffee but here’s tea as an accommodation no acceptance and no breach Silence ? so what the result Offeror cant unilaterally turn offeree’s silence as acceptance It may be if the circumstance permits such as prior dealing etc.g.

4. wants majority then implied affirmation NY Minors Limitations where minors cant void: 1. 2. Real estate relating to martial home 5. All k by 18 4. 3. DEFENSES AGAINST FORMATION Defenses against formation 1. 5. Capacity must be 18 mentally competent not intoxicated general rule only Δ (minor) can disaffirm k can only raise defense until 18. Irrevocable offer c. Offer states otherwise b. Education loand 16+ 3. Capacity Duress Misunderstanding No consideration Public policy Unconscionable 1. 6. Life insurance if 14 ½ or older 2.a. Rejection sent first then whichever arrives first binds because rejections is binding only when recieved II. K’s involving artistic or athletic services 47 | P a g e .

B thinks December no k If one party knows/ reason to know: k but innocent party’s intent prevails Mutual Mistake No k Must be mutual and material/ central to k But Mistake as to value not considered material Effected party may void if: i. “Peerless” A thinks may. mistake is on basic assumption which k is made 3.Duress Physical of economic General economic duress Misrepresentation of a material fact.g.Mistake 48 | P a g e . not k price Adjudicated incompetent =void Unadjudicated k not voidable unless incompetent can restore other party to previous condition 2.Ambiguity / misunderstanding 5.Misrepresentation 4.Mentally Incapacity Exception: An incapacited party is liable for necessities but on reasonable value. Even an honest or innocent misrepresentation of material fact is fatal No k e.

material effect no assumption of risk Unilateral mistake Not fatal flaw unless the other party knew or had reason to know of other parties mistake

ii. iii.

Consideration

Need bargain Need not make economic sense Type: - Promise - Performance - Forbearance

Past consideration

Past consideration is NOT consideration

Past consideration is binding if: 1. Promise is in writing 2. Expressly stated 3. Past consideration can be proven and 4. Writing signed

Illusory promise Modification General rule

Not binding on party is unenforceable Do NOT need new consideration but must be in Good Faith Need new consideration to modify Not enforceable Do not need new consideration if signed and in writing Not enforceable unless

Partial payment of 49 | P a g e

debt Disputed debt

Written promise even without consideration Types of disputed debt:

in writing

Promissory reliance

SOF
Statute of Frauds (defense against formation) Rule Need to have a writing for k to be enforceable by certain k’s MY LEGS Marriage Year Land Executor Goods over 5k Surety Also within statue: 1. Pro mis e to pay disc har ged deb t 2. Ass ign me nt of ins ura nce poli cy or pro mis e to na me a

50 | P a g e

(n/a only SOG) Real prop erty

(1)Real property Always in writing

ben efic iary 3. C om mis sio n or find ers fee, but not cov ere d by sta ute if atto rne y, auc tio ner, lice nce d real est ate bro ker Equal dignities rule: In a principal/a gent relationshi p the agent must be authorized

51 | P a g e

in writing. Exce ptio n Exceptions: Lease of one year or less Part performance exception need 2/3 of: - Buyer in possession - Buyer made part payment - Buyer made part improvements down payment is not enough w/i year (2)performance can’t be performed within a year Note key is impossible by any means of imagination in one year Clock starts at k formation Lifetime contract: NOT within SOF b/c can die Exce Exception ptio Full performance n Note: part performance can recover restitution but not as breach of k Goo (3)Property sale 5,000 or more (over 4,999) ds over 5k Exce Exceptions: ptio n a. goods accepted of paid for Lifetime contracts ARE in SOF bc by its terms not performe d w/i a year.

Lease of goods 1,000 or more Part performa nce of lease agreemen t is not in SOF

Note: if you can identify then exceptions applies only to that item: E.g. paid for 200 bats of an order of 500 bats, only the 200 will be excused from SOF E.g. down payment on a boat will excuse SOF b/c b. custom-made goods Sure 52 | P a g e (4) Surety ship

ty key is being back up If primary liable then not a surety Exception Primary benefit Mod ifica tion Gen eral exce ptio ns: Mer cha nt conf irm atio n me mo K modification Must be in writing only id k as modified in over 5k limit Judicial admission One party can use its own memo if: i. B o t h p a r t i e s a r e m e r c h a n t s Note: tested in february 53 | P a g e .

N o w r i t t e n r e j e 54 | P a g e . W r i t t e n a g r e e m e n t h a s q u a n t i t y iii.ii.

c t i o n w / I 1 0 d a y s Wha t is a writ ing?   Quantity of terms Signed by party to be charged  All mate rial term s Signe d by Δ Lease:  Q u a n t i t y D u r a t i o n R e n t a l p a y m 55 | P a g e  Highest bar   .

Argue formation defect . integration.Not valid for lack of condition precedent d) Interpret vague/ambiguous terms e) Supplement or add Parol Evidence Rule 56 | P a g e . e n t s S i g n e d b y Δ III. then no extrinsic evidence for:  Prior (or contemporaneous) agreements that  Contradicts the later writing Does NOT include if it’s for: a) Not the final document b) Correct clerical error c) Establish defense against formation . CONTRACT TERMS A) B) C) D) E) F) G) Contract Terms Words of the Parties Conduct of the parties Sellers warranties Lessor’s Warranties in leased goods Limitation of warranties in goods Risk of loss ROL in leased goods General Rule: when parties make a final doc.

.” “with 57 | P a g e Same warranties as 2 Exception does not apply if a financial institution is involved . disclaiming implied warranties: i.Parties conduct f) Explain a usage of trade term g) Subsequent developments h) Show that consideration was paid Following order (1) Course of Performance – under this k. promises. ”as is. (what others do) Of kids Express Implied Express Warranties: Statements of facts.of Merchantability --The goods fit for their ordinary purpose --only Merchants and -deal with goods of this kind Seller’s Warranties SOG Lessors warranties in leases (2)….for particular purpose --for buyer’s particular purpose need not be a merchant -relay on seller statement Limitations on warranties: A)Disclaimers: may only disclaim implied warranties may not disclaim express warranties a. description’s… samples Not opinions only if basis of bargain Implied Warranties: (1) .. conspicuous writing. (best evidence) (2) Course of dealings (prior k) (3) Usage of Trade.

Faults”… plain language ii. PERFORMANCE Performance Article 2 Common Law Substantial Performance does not have to be perfect on NY distinctions General Perfect Tender Rule 58 | P a g e .. course of dealing. inspection or failure to respect waives implied warranties that would have reasonably revealed. iii. trade usage B)limitation of remedies May limit on remedies on either express or implied but not if unconscionable Risk of Loss no limit on personal injury -based on k -breaching party bears ROL Common carrier: (1)Shipment kROL shifts to buyer after seller (i)brings goods to common carrier and (ii)makes delivery arraignments and (iii) notifies the buyer presumed to be shipment k unless agree otherwise (2)destination k: Seller bears ROL until goods reach a specific destination Non-carrier cases: If Merchant seller: Seller bears ROL until buyer takes possession Non-merchant on buyer once seller tendersmakes it available to buyer Leases of SOG On lessor Exception finacing lease IV.

breach if material Below For Sale of Goods under Article 2 only Perfect tender rule Right to cure If the goods are not perfect buyer has right to reject If rejects seller has right to cure Only if time has not expired Exception: May cure even if time has expired if based on prior dealings buyer was flexible defined: k that requires or authorizes delivery in separate installements perfect tender rule does not apply you substantial impairement (SI) Cant even reject the instalment w/o SI If buyer accepts the goods after having opportunity to inspect cant bitch about perfect tender -don’t need actual inspection but reasonable time to inspect  Cant reject but may sue for damages  Once buyer accepts he cant reject: Installments k exception Buyer accepts imperfect goods Exception: If the non-conforming goods: i) Substantially impairs the value of the goods and ii) Difficult to discover (latent defect) 59 | P a g e .

D. EXCUSE BASED ON LATER EVENTS Excuse Based on Later Events A. sue for damages Seller may refuse to take checks If seller refuses check and k will expire. C. Satisfaction clause c. Excusing conditions Article 2 A. Accept part reject part in additional may always sue for damages Exception to perfect tender Common Law Damages: may recover damages for any breach. Recession b. buyer has reasonable time to get cash w/o breach  V. NOVATION E. Accept all c. Reject b. Modification Accord/satisfaction c. Impossibility F. Other Parties Breach Based Perfect Tender Rule if Seller’s performance is not perfect buyer is excused from performance 3 options when not perfect: a. FAILURE of an EXPRESS Condition a. Other Parties Breach Anticipatory Repudiation Failure to give Adequate Assurance Later Agreement a. B. Frustration of Buyer’s Primary Purpose G.Consequence of rejection/ revocation of acceptance Paying with check Return goods at sellers expense  Refund  Damages. even immaterial But Excuse: only material breach NY 60 | P a g e . Strict compliance b.

Later Agreement Types: 1) Rescission 2) Modification 3) Accord/Satifaction 4) Novation Rescission: Agreement by both parties to C. Seller can sends buyer an accommodation notice  Treated as counter offer not breach Buyers remedy either accept and NO DAMAGES or reject and return but no damages. Anticipatory Repudiation Defined: intention to breach before the time performance is due -non-breaching party need not perform breaching party may retract the anticipatory breach as long as no reliance A party with reasonable grounds for being insecure may request ….writing of adequate assurance… treated like anticipatory breach assurance to the current k-can’t use this to request specific type of payment or rewrite k. Failure to give adequate assurance Article 2 only 61 | P a g e . D.rule: when buyer sends seller offer to buy goods for current of prompt shipments. Divisible k: Breaching party can still collect on the part that he performed B.

Impossibility Destruction of s/t necessary for performance: 62 | P a g e . only takes effect when the accord is satisfied Novation An agreement to substitute a new party for an existing party Novation both parties agree to the substitute original party is excused Distinguish from delegation where there is no assent from both parties. Called impracticality Same as common law adding: 1)ROL: seller who beared ROL is excused by impracticality 2)unidentified goods seller is excused if the goods that were damaged had been identified to the k Death essential person If special talents and only him excused Excuse for nonperformance E.cancel the k each party must have some performance remaining Modification -agreement by both parties that a new agreement should replace the current one now. takes effect immediately Accord An agreement to accept performance in the future to satisfy an existing duty then.

Failure of an Express Condition Excuse only if seller knew of buyers primary purpose Condition limits obligations based on language in the k Strict compliance required excused and cant sue for breach Satisfaction claue: objective standard -unless on matters of art or matters of personal taste Types of conditions: Condition precedent: triggers obligation to perform Condition subsequent: cuts of obligation only person protected by condition can raise it Waiver 63 | P a g e . not excused Performance of paying money is not excused Superveneing gov regulation Increase in cost to seller Almost never excuse Almost never excuse May be excused must look at price and percentage F. Frustration of buyers primary purpose G.If not.

is like indentured servitude. Cover damages e. Equitable B. buyer keep goods. (unless seller had security in it) Exception: i)buyer was insolvent when received ii)seller makes demand w/I 10 days or buyer made misrepresentation w/I 3 months about his solvency -Liquidated damages -expectational B.VI. may get injunctive relief though NY Unpaid sellers rights to reclaim goods: seller is screwed if seller delivers goods. Lost profit to a volume dealer i. Avoidable damages (duty to mitigate) Article 2 A. Market damages f. Incidental damages E. seller can just sue for breach. buyer doesn’t pay. Loss in value g. laugh at seller. Expectation Damages Sale of goods: d. Resale damages h. K price for special items D. Liquidated Damages C. Monetary remedies 64 | P a g e . Equitable Specific performance Only if the gooothds are unique or “other proper cercumstances” Common law Specific performance Only where $ is inadequate Available by: Real Property Never by service k. REMEDIES Remedies A. Consequential F.

market price = D (3)lost profit to a volume seller special rule for dealers Even if resells same good for same price.(1)Liquidated damages Damages listed in k before only enforceable if difficult to estimate and reasonable forecast damages -cant be a penalty Also general rule Buyer’s Damages: (1)cover Damages: When: if buyer covers (good faith) Cover price – k price = damages (2)market damages When: buyer doesn’t cover at all or doesn’t cover in good faith Market price – k price =damages (3)loss in value When: if buyer keeps nonconforming goods Value as promised – value delivered = damages Expectation Damages General form of damages put party in as good position as if the k had been performed. 65 | P a g e . Seller’s Damages (1)Resale Damages: When: seller resells in good faith K price –resale price = D (2)Market damages When: doesn’t resell or bad faith K price. volume dealer still gets lost profit damages.

Delegation (w/o consent. contrast w/ novation) D. Full k price = damages Incidental Damages Consequential Damages Cost to the injured party of transporting caring for goods after breach Never available to the seller Think of the Mill and shipper case damages special to this Π that were reasonable foreseeable to the breaching party at the time of the k Duty to mitigate damages Avoidable damages No duty to mitigate VII. Liability (none to done only creditor) C. THIRD PARTY Third Party A. Rescission before vests c. no sub change) Article 2 Common law NY 66 | P a g e .) b. Assignment (w/o consent/consideration.(4)K price When: by special of custom goods that can’t be resold. Third-Party Beneficiary (only intended. Entrustment (give g to merchant who sells) B. still obligated.

no intention (no rights) Promisor can rescind or modify until the promise vested Vests when: relies. assents or sues Liability But k language always controls Promisor is liable to TPB Promisee is only liable to creditor beneficiaries Promisor is still liable to promisee General Rule: may duties may be delegated w/o consent of the person to whom performance is owed -contract language controls no assignment clause then cant delegate either Recession and modification Delegation 67 | P a g e .Entrustment -Owner who entrust goods to a -Merchant who deal in goods of the kind -No rights against the BFP Third Party Beneficiary Defined: 2 people enter into a k intending to benefit TP Promisor: party promises to perform to TPB Promisee: one who secures the promise Intended beneficiary: the person whom performance is to be given Incidental B: just happens to benefit.

Special skills  no delegation Rights of the oblige: Delegating party remains liable unlike novation who is not liable May sue the delegate if there is consideration Definition: there is a k. Party who owes the duty is the obligor Note: TPB: TP known at time of k Assignment: TP comes later must have language of a current transfer Restrictions consideration is not required -K languge controls: a)”not assignable” assignment is valid but constitutes a breach b)”void” assignment is invalidated cannot substantially change duties of the obligor Gratuitous assignments are revocable Assignment of rights Gift assignment is irrevocable if in writing For consideration: -first assignee prevails Except: If second doesn’t know and gets payment first 68 | P a g e . one assignor transfers his rights to a third party-assignee. later.

SOME IMPORTANT POINT UNDER ARTICLE 2 (a) Cases that only apply to merchants: 2) Implied warranty of merchantability 3) Entrustment 69 | P a g e .

Open = possibility to join ii.REAL PROPERTY I. Fee simple subject to condition subsequent (option)(in grantor) c. Fee simple subject to executory limitation (not in grantor) B. Fee simple determinable (automatic) (in grantor) b. Vested remainder subject to open i. Springing = b. Future interest in transferees 1) Vested remainder a. ESTATES IN LAND A. 4 PRESENT INTERESTS: 1) 2) 3) 4) Fee simple Absolute Fee tail Life estate Defeasible fee a. Future interest in Grantor: 1) The possibility of reverter (only after FS determinable) 2) Right of rentry a/k/a Power of terminatin (only after FS STCS) 3) Reversion B. _FUTURE INTERESTS: A. cuts s/o short other than grantor 70 | P a g e . Shifting = always follows defeasible fee. Vested remainder subject to complete defeasance c. Infeasible vested remainder b. Rule of convenience – closes when any member can demand possession 2) Contingent remainder 3) Executory interest a.

.” If triggered event happens then to TP To A so long as…. term of years only (never defeasible fee) A. Remainder Characteristics Holder of the interest Duration Cannot cut short or divest 2 types with many subparts 3 types Only grantee (never grantor) 1.Present interest FSA Life estate The future interest that may fallow none Vested remainder Reversion (in grantor) Reversion Characteristics Holder Duration Ultimate “to a” “to A and his hiers” Life Fee tail Defeasible fee 3 types FS Possibility determinable in of reverter FS subject to condition Subsequent FS Subject to an executory interest automatically reverts back if condition triggered “to a so long as” reserves the right to terminate (not automatic) “provided that. Vested 71 | P a g e .then B” Right of reentry (in grantor) Executory interest (not in TP) Future interest The present Future interest interest that can precede the future interest Life estate.

SPECIAL RULES A. Springing C. Rule is Shelly’s Case B. O “to A for life then to the heirs of O.” normally is life estate + remainder. Reversion 2. This saves__ 72 | P a g e . Shifting 2. In Grantor: 1. Right of reenter 3. Possibility of reverter Not in the grantee (not a remainder) C. Contingent remainder Vested = 1)ascertainable and 2)nonconditional Will 100% get the property May lose property subject a condition subsequent but will 100% Unascertained or unborn children Or Subject to a condition perquisite Special rules: 1)rules of destructibility 2)rule in Shelly’s case 3)worthier title rule Cuts off a prior interest B. Executory interest Always follows a defeasible fee 1. The doctrine changes it from remainder to reversion in O.remainder 1(a) Indefeasible vested remainder 1(b) vested remainder subject to complete divestment 1© vested remainder subject to open 2. Doctrine of Worthier Tile (rule against remainder’s in O’s heirs) a.

CONCURRENT ESTATES A.b. Joint tenants a. Severance ii. Accompanies right of survivorship b. Mortgage B. The Rule: void is any possibility interest will vest more than 21 years from a measuring life B. Rule of construction c. RULES AGAINST PERPETUITIES RAP A. Time 2. Only applies if the words “heirs” are use D. Indefeasible vested remainder 3. Termination: SPAM i. no matter how remote that the interest will vest in 21 years after ML? E. Right to poses the whole c. MAY APPLY: 1. Right of survivorship c. In grantor 2. FS subject to condition subsequent (2) Identify the conditions precedent (3) Find the measuring life (4) Will we know for certainty. Only created with the 4 unities: 1. NY RULES AGAINST S II. Interest 3. Tenancy By ints Intirety a. Only with married people b. Vested remainder subject to open 3. Protected from creditors. Does NOT APPLY: 1. unless of both 73 | P a g e . Vested remainder subject to complete defeasance ii. Four step technique: (1) Determine which future interest i. Instrument (same title. documents) 4. Contingent remainder 2. Partition and iii.

devisable c. Tenancy at will right to terminate by either the L or T 4. Tenancy at suffrage: wrongful remains in possession after expiration of tenancy (hold-over) i. need agreement by both spouses to sell. Tenancy in common a. Termination: continues forever until proper notice is given a) The amount of time is the full period earlier or for year periodic then 6 months 3. …. Divorce /death ii. Creation: express. mortgage. no notice required 5. Creation: k iii. Termination: i.d. Creation: T wrongfully remains ii. No right of survivorship b. Interest is alienable.rent if exclusively in possession Rent from TP Carrying cost Repairs No adverse possession No improvements costs No waste Partition action III. C. Presumed interest RIGHTS OF CO-TENANTS The rights: 1) 2) 3) 4) 5) 6) 7) 8) 9) Possession Right of co. Termination: L takes action. L may hold the holdover T to a new k 74 | P a g e . SOF applies of more than a year ii. Tenancy 1. Hold-Over doctrine. Evict ii. or by operation of law ii. LAND LORD AND TENANT A. implied. desendable. Tenancy for years: fixed amount of time i. Periodic Tenancy: continues for successive periods until proper notice i. L’s options: i. Termination: (1)automatically at end of term (2) breach covenant 2.

when T2 leaves he is only liable for rent while he was there not for T3. If necessity the purchaser gets to choose the easement 3. Sublease (part of lease) i. Types i. b) Commercial: year-to-year if lease was a year or more. If L notifies the residential T. T2 has no privity to L. IV.a) Residential: generally month to month a. L duties D. T1-T2-T3. Necessity a. Equitable servitude D. and can tell L to ef off. Assignment (whole term) i. If less then based on the payment cycle. Termination i. Abandonment: need physical act mere nonuse is not enough (easements are presumes perpetual) B. B. Gross 2. Assignments and Subleases 1. Real Covenants C. that rent will increase then T is held to the new k. T2 is in privity with L ii. iii. Easements 1. Profits 75 | P a g e . Creation:  Note: presumes to last forever i. All covenants that “touch and concern” the land run with the land iii. RIGHT IN THE PROPERTY OF OTHERS A. T1 is only liable. T duties and L’s remadies C. T1 is still on the hook 3. Appurtenant ii. Implication 1. only privivyt with T1 ii. Express ii. Rule: absent and agreement T may assign/sub 2.

Licenses Defined Easement Real Covenants A grant of an interest Promise to do or not in land that allows do s/t on the land someone to use another’s land 1. Prescription A)appurtenant = involves the land B)gross = rights (billboards) Special notes Running with the land A. Burden B.E. Implied a)prior use Common owner Necessary Apparent and continuous intention b)Necessity c) subdivision Characteristics 3. Express 2. Benefit Appurtenant Automatic because it’s a real property interest Burden (1) Intent (2) Notice (3) Horizontal privity (4) Vertical privity (5) Touch and concerns the land (1) Intent (2) Vertical privity Burden (1) Intention (2) Notice (3) Touch and concern Don’t need privity Promise/ covenant Only in writing SOF Equitable servitude Promise to do or not do s/t on the land Example Creation Promise/covenant In writing or s/t ny implication (common scheme of development) Related to affirmative or negatively doing s/t in land Related to affirmative or negatively doing s/t in land Benefit (1) Intention (2) Touch and 76 | P a g e .

 May tack from another if there is privity Note it only effects possessory interest. AP has not effect on future interests who are not in possession yet 77 | P a g e . meaning AP even if the possessor’s thinks the land is her own  Permission/consent from owner stops AP d. “Actual and exclusive”  Color of title then deemed to poses the whole thing b. 1) 2) 3) 4) ADVERSE POSSESSION Actual entry giving Exclusive possession Open and notorious Adverse Continuous for statuory period Elements: a.Remedy Termination Merger Release Abandonment Estoppel Prescription Necessity (ends) Condemnation or destruction (3) Touch and concern Damages Release Merger condemnation concern Equity Injunction Release Merger condemnation V. Statutory period  Rule of tolling – if minor or incompetent at the begging then toll. Open and notorious  Key is sufficiently apparent to put the owner on notice c. Hostile  Satisfied if w/o owner’s permission  the adverse possessor’s state of mind is irrelevant.

VI. DEEDS C. Buyer owns equitable tile and the seller is considered to have personal property . Marketable title a. CONVEYANCES LAND SALE K 1. Seller must credit buyer if receives and insurance on loss etc. b. the seller is holding the title for the buyer in trust c. risk of loss is on the buyer unless the uniform vendor purchaser risk ask under state statute places burden on seller i. without notice) wins Race-notice Subsequent BFP who records first prevails Race Grantee who records first wins (even if not BFP) (don’t care about notice) Example of statute Do you need BFP Record first What if prior BFP recorded before you even purchased 78 | P a g e No (Punish the first BFP who failed to record ) Then there is constructive notice and he’s not a BFP then . B. A. Application after signing before closing b. Implied covenant to provide marketable title in the chain of title. Doctrine of equitable conversion a. Passage of title at death 3. Delivery a. Covenant applies at closing c. land description in deeds and no litigation. Rule RECORDING Notice Subsequent BFP (for value. SOF applies 2. ii. If unmarketable then seller can’t sue for specific performance 4.

Notice requirement failure to notify junior in foreclosure sale preserves the interest c. mortgagee is not entitled to possession before foreclosure 3. 3. lien theory: holder only has a security interest (lien). intermediate theory: once default then legal title passes to the mortgagee 4. Foreclosure doesn’t affect senior mortgages but destroys junior ones b. judicial sale power o sale (nonjudicial sale) redemption: anytime before foreclosre sale or under statutory redemption after. title theory: mortgagee has legal title and entitled to possession upon demand at any time 2. foreclosure 1. 4. mortgagee can take possession with concent or abandonment B.D. mortgagor owns the land. Note modification of senior mortgage after a subsequent mortgage wil down grade it 79 | P a g e . FORECLOSURE A. Priorities a. 2. Before foreclosure 1.

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(c) no third party standing and (d)no general grievances 81 | P a g e . FEDERAL JUDICIAL BOWER A. IV. V. Standing (most important justiciable) Standing: whether the Π is the proper party to bring the case to court The Π must meet 4 requirements:(a) injury. VI. JUSTICIABLE.CONSTITUTIONAL LAW Overview: I. II. Federal Judicial Power Federal Legislative Power Federal Executive Power Federalism Individual Liberties Equal Protection First Amendment Weaker areas:  Eleventh  I. III. VII. CASES AND CONTROVERSY Defined by Article 3 of the constitution with a requirement for: Cases and controversy Case must be justiciable No advisory opinion Requirements are: 1) 2) 3) 4) Standing Ripeness Mootness [no]Political question doctrine 1. (b) causation.

 Doctor-patient  Parent. Exception 2: standing to challenge action in violation of the 10th amendment by interfering with powers reserved for the states 82 | P a g e . injury is not established with mere ideological objections ii.child. Exception 2: is TP is unlikely to assert ownd right  E. The “under G-d” challenge in public schools dismissed because brought by non-custodial parent who had no custody ii. No third party standing o May not present cases on beholf of pthers who are not before the court. Interest is germane to the organization c. The mebeers whould have standing to sue b. only Π who personally suffered injury: Exceptions: i. Injury : Injury: the Π must alledge and prove that he or she has been injured of imminently will be injured i.g. If injunction must assert the likelihood of future harm c.  But NOT NON-CUSTODIAL parent. Π must assert only injuries that the personally suffered iii. No general grievances o Π may not assert a cliam simply as a citizen or taxpayer having the government follow the law i. Exception 3orginization if: a. Exception 1: close relationship and can adequaltly represent the interest. Neither claim or relief requires participation of individuals e. Exception 1: may challenge on the establishment clause.b. juror improper removed iii. Causation and redressability o The Π must show that the Δ caused them harm so that a court decision is likely to remedy the harm if not it is an advisory opinion o If not harm then simply an advisory opinion which is not allowed d. which is ii.

Final judgment rule Only hear the case after there has been a final decision. a. Mootness Mootness is that there must be a live controversy that will lead to a nonfrivolous money damage and claim. Political question Doctrine Federal courts will not adjudicate political questions. SUPREME COURT REVIEW For SC to hear the case all the justiciable requirement must be met 1.2. Exception 2: voluntary cessation but can start up again anytime c. If the events after filing the suit will end the Π’s injury the case must be dismissed as moot. challenges to president conduct of forign affairs c. Challenges to the impeachment and removal of president d. Writ of certiorari Virtually all come to SC via writ of cer a. Challenges to the partisan gerrymandering B. no interlocutory appeals 3. Ripeness Ripeness is the question of whether a federal court may grant pre enforcement review of a statute or regulation Factors: a. Exception 1: wrong capable of repetition but evades review because of limited time b. The following 4 cases were dismissed as polital questions a. Exception 3: class action. Fitness of the issue on the record 3. US court of appeal via writ c. Republic form of government b. The hardship tat will be suffered without pre-enforcement review b. All cases from State court from writ b. Federal issue only o No independent state and adequate state law of decision 83 | P a g e . 3 judge decision strait to SC d. Orginal and exclusive jurisdictioin for suits between states 2. as long as one member in class still has injury 4.

o If there is possible a state issue that can be appealed then must appeal that issue. Expressed of Implied -congress only has powers if given to them either expressed or implied a. Generally no police powers Exceptions (MILD i. Taxing/Spending Power and Commerce Power a. Commerce power to regulate commerce i. under the principle of sovereign immunity the federal courts may not hear cases against state governments  Exception i. Sovereign Immunity  No state government cases. Necessary and Proper Article I. federal lands iv. Section 5 of 14th amendment. Sec 8. Tax and spend for Ugeneral wealfair b. M: Military ii. Regulate channels commerce. Abstention The may not enjoin pending state court II. Waiver but only expressed ii. Congress’s Authority 1. Congress can also authorize any other… iii. Bankruptcy proceeding  Suits against state officers permitted in federal courts as long as no money damages from state money 2. only will hear of only a federal issue C. I: Indian reservation iii. including highway and internet 84 | P a g e . LOWER FEDERAL COURT REVIEW 1. The federal government can sue a state government in federal court iv. D: district of Columbia 2. states may be sued under that federal law which __. congress can adopt all laws that are necessary and proper to exercise its authority 3. Lands. THE FEDERAL LEGISLATIVE POWER A.

FEDERAL EXECUTIVE POWER 1. a. Regulate the instrumentalities of interstate commerce and persons and things of interstate commerce iii. Treaties defined: agreements between US and foreign country that are negotiated by POTUS and effective when ratified by senate need senate ratification Conflict rules a. Last in time rule if conflicts with federal statute (meaning it will override it and vv) c. no line-item vetoes 3. Delegation of Power 1. cant make a federal driving age limit but can say you only get federal highway money if the driving age limit is… b. FOREIGN POLICY 85 | P a g e . State conflicts are invalid b. Congress cannot compel state regultaroy of legislative action  But in reality this is BS because they can control how states act when they give them federal money  E. If non-economice then substantial effect may NOT be on cumulative effect 4. Congress may prohibit harmful commercial activity B.ii. May regulate activities that have substantial effect on interestae commerce a. Tenth Amendment The Tenth Amendment gives all power to the state not granted to the fed or prohibited from states. Congress may not delegate executive powers III. US Constitution overrides all treaties if conflict A. Acts:  Legislative Vetoes and line item vetoes are unconstitutional  For congress to act there must be byecann__ both house and senate  And presentment to president  President must sign or veto in its entirety.g. Unlimited delegable powers 2.

: lower federal court. DOMESTIC AFFAIRS 1. Commander-in-chief Broad power to use American troops in foreign countries B. federal judges. Appointment and removal a. unless prohibited by statute. Definition: an agreement between the US and a foreign country that is effective when sign by POTUS and head of foreign nation no need for senate approval b.2. Executive Agreements a. 3. Conflicts: override all state law but never override conflicting federal law of const. Can be used for any purpose c. officers of US. Congress may vest appointment of inferior officers. Impeachment and removal  Grounds for impeachment only: o Treason o Bribery o High crimes o Misdemeanor a. heads of department b. Congress may limit removal power only if: i. Impeachment by house requires majority and 2/3 of senate vote 3. Removal Power: President has broad power to remove any executive official. Impeachment does not remove president from office b. For congress to limit pres removal power must show independence from president is desirable ii. The president appoints: ambassadors. may limit removal to where there is good cause shown 2. Absolute immunity  Absolute immunity to civil suits for money damages while in office  No absolute immunity for actions occurring before taking office 86 | P a g e . Appointment power i. with senate approval need approval of congress ii. Congress cannot prohibit removal.

Impossible to simultaneous comply to both b. Federal law is the supreme law of the land. Privilege and immunity clause of Article IV: no state may deny citizens of other states the privileges and immunities it affords its own citizens without substantial justification  “citizens of each state shall be entitled to all Privileges and Immunities of citizens in the several states. Pardon power  Pardon federal crimes  No pardon power on state crimes  No pardon power on civil liability  No pardon power on the underlying crime that led to impeachment IV. No state tax on feds A. Definitions a. Cleat intent federal law is to preempt 3. PREEMPTION B.” prohibits discrimination of states to nonresidents on fundamental rights. but only if important government interest  Criminal investigation overrides the privilege 5. FEDERALISM Supremacy clause tells that federal law preempts and state law that is inconsistent with it.4.  only to citizens (not corp’s/aliens)  only if discrimination 87 | P a g e . Dormant commerce clause: state and local government laws are unconstitutional if they place an undue burden on interstate commerce b. SUPREMACY CLAUSE. State law impedes the federal law objective c. Express Preemption  When law states that federal law is exclusive 2. Implied Preemption  Even if fed law is silent preemption when: a. 1. DORMANT COMMERCE CLAUSE AND PRIVILEGE AND IMMUNITY CLAUSE 1. Executive privileges  Executive privileges for papers and conversations.

g. fishing = livelihood cant have cheaper in-state fishing licenses  E. IL Truck Bumper case 3. Then Priv and immunity of IV does not apply only applies if discriminates b. Is discrimination related to earning livelihood o If related to livelihood violates priv/immunity of IV unless necessary to achieve an important government purpose  E. Exception 2: market participation exception: state may prefer its own citizens c. FULL FAITH AND CREDIT State courts must afford full faith and credit decisions of another state’s court 88 | P a g e . Corporations and aliens C. If burdens interstate commerce violates dormant commerce clause if show burden on interstate commerce outweighs the benefits of the law o E. State taxation of interstate business must be fairly apportioned D. used to preserve a person right to travel from one state to another Approach: Discriminating against out-of-state? 2. State may not use its tax system to help in-state business 2. Privilege and immunity clause of the Fourteenth Amendment = travel.g. hunting = hobby can have cheaper in-state hunting licenses d. Violates dormant clause unless necessary to achieve an important government purpose and gov must show that no less discriminatory alternatives can achieve the goal b. If does not discriminate against out-of-state: a. Exceptions 1: congress approved it (then not dormant commerce clause) ii. State may only tax if there is a substantial nexus with product/activity and state 3.c. Exceptions: i.g. STATE TAXATION OF INTERSTATE COMMERCE 1. Analysis if does discriminate against out-of-state a.

Commerce clause…. encourages of authorizes… Key examples i. State action when gov leases premises to restaurant that racially discriminates 89 | P a g e .“Privileges of immunities clause staters National of the Fourteenth A Citizens” Privilege and Travel “Privileges of Immunity Clause of state citizens” Article IV Protect “fundamental rights” 1)commercial activity and 2) civil liberties Exclusions Scrutiny Corporations Strict Corporations. Judgment on merits 3. Valid is Aliens substantial justification V. Cannot use section 5 of 14th …. Court enforcement of racially discriminatory covenants =state action ii. Public functions exceptions b. The entanglement exceptions: when gov facilitates.Requirement: 1. THE STRUCTURE OF CON PROTECTIONS OF INDIVIDUAL LIBERTIES GOVERNMENT ACTION 1. to private conduct a.e. Congress by statute may apply const.only applies to states 3. Exceptions when private conduct is unconstitutional a. A. The court must have had personal subject matter urisdiction 2. No protection on private conduct 2. Final judgment Primary Statute Dormant States cant place commerce clause burden on interstate commerce Privilege and Discriminate out-of.civil rights act of 1964 c. slavery b. Constitution only applies to government. Thirteenth Amendment: private acts discrimination i.

No state action when a private school that is 99% funded by the government fires a teacher because of her speech v. Application of the Bill of Rights   Bill of rights applied to state and local government through its incorporation into DP of 14th Excpetions to incorporation: o Third Amend right no to have soldiers quarted in house o 5th amend right to grand jury indictment o Seventh amendment right to jury trial in civil cases o 8th amendment right against exercise fines LEVELS OF SCRUTINY: (1) Rational Basis test: a law will be upheld if it is rationally related to a legitimate government purpose. Is state action when private entities regulate interscholastic sports vii.  Burned on contestant  Burden to show either no conceivable government purpose of the law is not rationally related to it  Government usually wins (2) Intermediate Scrutiny: a law will be upheld substantially related to an important government purpose  Burden on government  Narrowly tailored (3) Strict scrutiny: a law will be upheld only if the law is necessary to achieve a compelling government purpose  Government has the burden  Contestant usually wins Test Rational basis Rationally related to a legitimate Burden Likely winner Contestant gov Class included 90 | P a g e . State action when provides free books to private schools that racially discriminate iv.iii. No state action when NCAA acts vi. No state action when a private club with state liquor license discriminates B.

Intermediate Strict gov purpose Narrowly Gov tailored to achieve a substantial gov interest Necessary Gov to achieve a compelling government interest Contestant Gender Contestant Race VI. Ability of additional procedures iii. Prisoners rarely have rights 91 | P a g e . Welfare benefit terminations requires notice and hearing ii. Intentional government action Need intentional or reckless gov action. Government’s interest b. Emergency situation on liable if “shocks the conscience” c. Negligence is nt enough i. If depravation then 3 procedures required a. Termination of parent custody: notice and hearing iii. property Broken down into 2 questions: 1. Failure to protect people from private harms is not deny of DP 2. liberty or property: a. 3 part balancing test i. Deprivation of life. Examples i. Harm to reputation is NOT loss to liberty v. Social security: post termination hearing iv. A depravation of property if a person has an entitlement (a reasonable expectation …) and that entitlement is not fulfilled b. liberty. Importance to the individual’s interest ii. A deprivation of liberty occurs if there is the loss of significant freedom provided for by the Constitution of the statute ii. Definition i. PROCEDURAL DP Depravation of life. INDIVIDUAL LIBERTIES A.

Just compensation paid c. Taking clause of Fifth Amendment…. Possessory taking b. vii. Regulatory takingregulatory taking only is leaved NO REASONABLE ECONOMIC viable use c. Punitive damages only if Non-citizen ability to challenge the continued detention Citizen: havious corpus DP recues recusal of actual biased judge B. Only rational basis analysis b. section 1: no state shall impair the obligatins of the contracts: o Provisions i. Intermediate scrutiny then can interfere a. Privacy  Privacy is fundamental right and strict scrutiny  List of fundamental rights: a. Temporary denying owners use is NOT a taking ii. Right to procreate c. ix.. SUBSTANTIVE DP 2 analysis: 1) economic liberties and 2) safe guard property 1. Law narrowly tailored means of promoting an important legitimate public interest? iii. Contracts Clause o Article I. Conditions on development bust be justified by burden proportionate d. Substantially impair a party’s right? b. No expos facto law punishment on past act not illegal when performed 3.Just compensation different level of scrutiny: i.vi. Only minimal protection for economic liberties a. viii. Public use iii. Right to marry b. If government k – strict iv. Definition: ask whether the gove has adequate reason 2. State of local government already existing k’s ii. Right custofy of children 92 | P a g e . Is there a taking? a.

Spousal consent or notice laws unconstitutional vi. May require consent/notice for minors but may have some alternative to get it…judicial permission Private same-sex The right to refuse life saving medicine i. 2. Constitutional provisions concerning equal protection: 1. l. Family no right ii. EP/5th = Feds also 93 | P a g e . e. m.strict scrutiny iii. approach. Test: ii. Moving state to state. Right to keep family together Right of parents to control upbringing of children Purchase controceptives Right to abortion i. No fundamental right to international travel Right to vote fundamental No fundamental right to education VII. i. No gov duty to subsidize abortion v. Need clear and convincing evidence sick wanted to terminate in that condition No righ to physician assisted suicide Second Amendment right to have weapons for self-defense Right to travel i. EP/14th = only state and local govt. Equal protection. Residential requirements. After viability may prohibit abortion iv. 3 steps 1. h. Does law meet scrutiny B. g. n. f. j.d. k. Prior to viability: states cannot place an undue burden iii.strict scrutiny ii. Level of scrutiny 3. Classification 2. EQUAL PROTECTION Equal protection challenge when government distinguishes among person A.

e. Proven: a. Intermediate scrutiny and exceedingly persuasive justification 2. Police iv.A. Face of law b. D. Strict scrutiny if gov discriminates based on race or ancestor origin 4. Impact and intent to discriminate 3. Vote ii.g. Proving discrimination: a. Jury iii. Generally strict scrutiny b.g. CLASSIFICATION BASED ON RACE OR ANCESTOR ORIGIN 3. Undocumented aliens only intermediate scrutiny E. Discriminatory Intent and b. numerical set-aside require clear and convincing evidence d. only women get spousal support b. Benefiting gender intermediate a. Alienage a. Teacher v. strict scrutiny even if helping b.C police test that impact based on test that kept black out only rational basis 4. Congress discrimination = rational bases d. Law is race neutral but demonstrates: a. Non-marital children 94 | P a g e . Probation officer c. Racial classification benefiting minorities: a. Gender Classification 1. No gender stereo typical laws. May discriminate for: i. only ok if helping past discriminatory action c. educational may take race as one factor C. Discriminatory Impact discriminatory IMPACT IS NOT ENOUGH  e. Benefitting woman past discriminatory action ok D. On its face or b.

Content neutral = intermediate scrutiny 2. Vagueness= uncon.  Intermediate scrutiny Unconstitutional to deny benefits to unmarried children given to married children o Sucks for Schwartenagers kids F. Wealth iv. Overbreadth = uncon. GENERAL RULES PERTAINING TO FREE SPEECH a. Disability iii. Age ii. Sexual orientation VIII. Content based = strict scrutiny e. Prior restraints a. Gag orders on press = never allowed 3. Fighting words are NOT PROTECTED but may be above 2 4. Suppressing speech = SS i. View point based = strict scrutiny b. Vagueness and overbreadth a. if you can’t tell what prohibited b. Court orders must be complied with ii. Rational basis used for all other types of discrimination List of rational basis: i. Symbolic speech 95 | P a g e . Subject matter restrictions = content based ii. Government economic regulation v. Can’t prohibit violent video games i. Violation of court order cant challenge it iii. Content more protected than conduct More likely to uphold conduct based than content based Distinctions between content and conduct A.g. FIRST AMENDMENT 1. c.

Less protected than private speech b. Profane speech ok just not on public air or public school 4. Anonymous speech protected 6. artistic…. test i. Child pornography illegal even if not obscene d. Taken as a whole not scientific. Commercial speech a. Up held it: i. Obscenity (3 part test) a. Cant punish private stash of obscenity. may seize business assets of obscene vender f.May regulate if important interest unrelated to suppression of message…. Narrowly tailored but need not be least restrictive way  False advertising or unlawful not protected  True but misleading not protected  May ban lawyers from advertising within 30 days of accident  Complete ban rarely upheld  Other = inter s 5. Incitement of illegal activity 2.impact no greater than necessary  Specifically not protected: o Flag burning o Nude dancing o Burning a cross to intimidate or threat o Burning draft cards  No limit on total anount to contribute to 5. Prurient: The material is shameful interest in sex ii.national standard b. Patently offensive iii. but can punish child porn e. Gov speech and funding ok as long as rational basis to legitimate government interest  B. Gov. Substantial government interest and ii. Zoning ordinances ok c. Defamation 96 | P a g e . Directly advances that interest iii. UNPROTECTED AND LESS PROTECTED 1.

Punitive only actual malice d. Illegally obtained ok if not guilty party c. Or not careful like a reasonable speaker iv. Private figute not public concern i. Permit fee ok. Regulations must be neutral b. Actual malice 6. May regulate as long as reasonable/viewpoint-neutral 97 | P a g e . Falsity ii.a.g sidewalks and parks a. Clear and convincing ii. Limited public forums a. Compensatory damages for ii. Same rules 3. Limitation must be reasonable and neutral 4. Other gov restrictions = SS C. Public Forums e. ?intermediate scrutiny: Narrowly tailored to server an important government interest 2. Government may restrict its own dissemination d. Public figure i. Non-public forums a. Falsity iii. Malice or iv. Malice c. Designated public forum a. Private figure matter concerning public i. Public official i. Privacy and First a. No protection for gov employee on the job… e. False and iii. reckless disregard b. Press – legally obtained gov docs no liability b. Regulations only on time/place/manner c.set by local gov d. PLACES AVAILABLE FOR SPEECH 1.

S:Must be a Secular purpose ii. 3 part test (SEX) i. Establishment clause a. Exceptions above (i) functions as public…(ii) state action. Strict scrutiny a.) b. E. FREEDOM OF RELIGION 1. Christmas tree and atheistic bs in one place 98 | P a g e . Application i. No protection for private advertising forums (no protection if billboard company refuses to advertise certain type of content.g.b. Actual affiliation ii. No first amendment first to access private property a. Cant deny benefits because quit job b/c og religions 2. C. Note shopping center = private 6. iv. Requiring disclosure = SS 3. Military base Areas outside prison Schools Signs on public property Sidewalks in front of post office Airports 5. Intent to further illegal… 2. Freedom association 1. Can have many symbols e. E: Primary Effect must be neither to advance or inhibit religion iii. Freedom of association does not permit discrimination unless a. iii. Need a state actor.. Prove in order to punish membership i. no symbolic endorsement ii. Free exercise clause a. Private-forums a. Intimate association b. v. X: no excessive government entanglement b.g. Knowledge of group illegal activity iii. Cant use it to challenge a neutral law b. ii. menorah. Where discrimination is an integral part D. vi. i.

c. Assistance to nonreligious parts ii. f. Cant pay salaries directly - Criminal Law 99 | P a g e . Can provide vouchers iii. No discrimination based on religion No government sponsored religious activity No school prayer Parochial school: i. d. e.

Property crimes (c) Liability for the conduct of others o Accomplice liability (d) Incohate (“incomplete”) Offenses 1) Solicitation 2) Conspiracy 3) Attempt (e) Defenses 1) Insanity 2) Voluntary intoxication (only be___) 3) Infancy 4) mistake 5) Self defense 6) Necessity 7) Duress 8) Entrapment Jurisdiction A crime may be prosecuted: 1) Where the act took place or 2) The result took place 100 | P a g e . Sources of law: 5) Common law 6) Majority of statutory Law 7) Model Penal Code B. INTRO/OVERVIEW A. Overview: (a) Essential elements of crimes: 1) Act Requirements (Actus Reus) 2) Mental Requirement (Mens Reu) 3) Causation 4) Concurrence Principle (b) Specific Crimes a.SUBSTANTIVE CRIMINAL LAW I. Against the person b. NY: NY Penal Law C.

g. Reflex or convolusion Rarely culpable Only basis for liability if all 3 (1) Duty to act. Sleep walking/ unconscious f. ESSENTIAL ELEMENTS OF A CRIME i. 5 ways to get duty to help: a.   Felony: a crime that may be punished by death or imprisonment for more than one year Misdemeanor: fine or prison less than a year II. Statute b. with (2) knowledge of the facts that gave rise to the duty and (3) ability to help.  Classification. Status relationship i. Contract (baby sitter) c.Burden of proof Prosecution must prove every element of the crime beyond a reasonable doubt  Defenses in NY: 2 types 1) Defenses: prosecution must prove beyond a reasonable doubt 2) Affirmative defenses the defendant must prove by preponderance of the evidence. Parent NY 1) Physical acts/ Commissions 2) Omissions 101 | P a g e . Act Requirement MBE a)all bodily movements are physical acts provided they ae voluntary involuntary ≠”acts” such as d. pushed) e. Not own volition (e.

Larceny 4. Mental State General 4 mental states 1) Specific intent 2) Malice 3) General intent 4) Strict liability 5 mental states (adopts Model Penal Code) 1) Intentionally (MPC: Purposely) 2) Knowingly 3) Recklessly 4) Negligently 5) Strict liability (similar to CL) 1) Intentionally Δ. 1st degree premeditated murder (property crimes) 3. Embezzlement 5. List of the 11 specific intent crimes: (Crimes against the person) 1. Unreasonable mistake of fact 2) Malice 102 | P a g e 3) Recklessly When Δ is aware of a substantial risk and consciously disregards that risk 4) Negligently when Δ should have been . 1) specific intent: Defined: the crime requires a desire to the act and a desire to achieve a specific result. conspiracy 11. Voluntary assumption of care e. Attempt Defenses: 2 defenses only available for specific intent: a. Burglary (inchoate crimes) 9. With respect to a result. Creation of the peril ii.ii. Robbery 7.s conscious desire to achieve a particular result ( Δ does what he wants to do) 2) Knowingly . False pretenses 6. Solicitation 10. when Δ is aware that it is practically certain that his conduct will cause a result. Voluntary intoxication b.Δ is aware of what he is doing. Assault 2. Spouse-spouse d. Forgery 8.

selling contaminated food b. 2 types: a. Does not need to intend a specific result (usually infer from actions) Cases:  Battery  Forcible rape  False imprisonment  Kidnapping (note: all against the person) 4) Strict liability Defined: simply doing the act is culpable no mental state required. statutory rape: having sex with someone who is under the age of consent aware of a substantial risk and unjustifiable risk 5) Strict liability Same as common law iii.g.g. but you probably need intent that you are at least transferring them) e. transferring unregistered firearms.Definition: intentionally or reckless disregard of an obvious of known risk Common law cases:  Murder  Arson 3) General intent Definition: Δ need only be generally aware of factors constituting the crime. Causation General Need 2 kids: 1) First start with actual. but for causation 103 | P a g e . (you don’t need any intent that they are unregistered. Public welfare e.

CRIMES AGAINST THE PERSON: A. Concurrence principal Rule: the defendant must have the requires mental state at the SAME TIME as the culpable act  Most frequelty arises by Larceny Burglary  - III. Learn the middle and make an educated guess for the rest  Factors: (1) Weapons: add a degree (2) Injury : (i) Physical injury: substantial pain (ii) Serious physical injury: permenant or life threatening injury (3) Quantity: by money or drugs Crimes Against the Person 104 | P a g e . ASSAULT BATTERY  Strategies on NY degrees system:  To complicated to memorize every degree.Actual cause 2) Proximate legal cause Actual but for Exception: Accelerating cause is an actual cause (even though not but for cause) Rule: the Δ proximate cause id the bad result is a natural and probable consequence of Δ’s conduct Applications: 1) Intervenening cause: not liable if unforeseeable 2) Eggshell victim: proximate cause even if victim has a preexisting weakness Proximate cause iv.

only assault: Elements: (a) Intentionally (b) Causing physical injury (c) to another person Assault Elements of assault: (1) Attempted battery Or (2) _ (a) Intentional creation (b) Other than by mere words of (c) Reasonable fear in the mind of the victim (d) Of imminent bodily harm Mental state: specific intent No degrees system  note: no criminal liability for mere offensive touching. third probably not serious) First degree (1) Second degree assault plus (2) A weapon Third degree (1) Intentionally causing (2) Non-serious physical injury 105 | P a g e . you need physical injury reasonable apprehension is not assault its menacing see below Degrees Degrees of assault (remember start with 2nd degree) Second degree assault (1) Intentionally causing (2) Serious physical injury (note: figure out first probably has weapon.Battery (assault in NY) Common Law Elements of battery: (a) The unlawful (b) Application of force to another (c) Resulting in either 1) Bodily injury 2) Offensive touching (d) Mental state: general intent NY Penal Law There is no battery in NY.

Transferred intent Exception: transferred intent does not apply to attempts. Causing a death ii. Murder (common law murder) 1) Definition: i. With malice aforethought 4 ways to achieve malice afterthought: 1) 2) 3) 4) Intention to kill Intent to cause serious bodily harm Depraved heart/ indifference extreme reckless Felony murder Note at common law no degrees 2) Mental state 4 metal states (1) Intent to kill (2) Intent to inflict serious bodily harm (3) Extreme reckless (depraved heart) (4) Intentional commission of an inherently dangerous activity 3) Intent to kill special rules: i. Of another person iii. only to crimes with “complete harms” 2. Deadly weapon rule: inference of intent to kill ii. Manslaughter 3 types 1) Heat of passion 2) Recklessly causing death a/k/a involuntary manslaughter 3) Misdemeanor manslaughter (very rare on MBE) 106 | P a g e . COMMON LAW HOMICIDE CRIMES: 1. Year and a day rule o NY death may accur any time o CL: year and a day from homicide act B.

(iii) Killing must take place during the felony or immediate flight (iv) Death must be foreseeable (v) Not to co-felons e. Proximate cause theory: maj rule: if one felon is guilty of murder all are. Even if by a third party ii. Statutory variations Most states have degrees: (1) First degree Murder if: 107 | P a g e .g. Vicarious liability i. aggravated assault can’t be the felony to the murder-it’s the same act o E.g. mob shooting in the leg to scare but victim dies as a result of the shot. FELONY MURDER: Defined: any killing caused during the commission of or attempt to commit a felony (i) Most common limitations: (1) Δ must be guilty of the underlying felony (2) The felony must be inherently dangerous  NY considers the following list exclusively under felony murder  Think of BRAKES o B: Burglary o R: Robbery o A: Arson o K: Kidnapping o E: Escape (ii) Felony murder merger rule: felony most be independent of the murder o E.D. Agency theory: min: only if co-felon does the killing not third party f. The non-slayer defense Ny only affirmative defense if proves all 4: (1) Δ did not kill victim (2) Δ did not have a deadly weapon (3) No reason to believe co-felon had deadly weapon (4) No reason to believe co-felon would kill g.

Objection heat of passion o Examples:  Serious assault of battery  Witnesses adultery  Words alone not enough ii. Subjective.1) Premeditation and 2) Deliberation (2) Second degree if: o All other intentional murders. No time to cool off iv. actually provoked iii. included depraved heart (3) Voluntary Manslaughter  Definition: I. Didn’t actually cool off (4) Involuntary Manslaughter  Criminal negligence  During commission of a crime where felony murder doesn’t apply C. Heat of passion III. Intentional killing II. NY MURDER Murder in NY: First degree: (a) Intent to kill and (b) Δ was 18 or older (c) With aggravated factors: (i) Victim was police (ii) Hit man (iii) Felony murder with intention (iv) Witness intimidation 108 | P a g e . Upon adequate provocation  Requirements: i.

 By perpondarance of the evidence Manslaughter (1) First degree b.(v) More than one victim in same criminal transaction Second degree: (a) Intentional killing that not first degree (b) Highly reckless that demonstrates depraved indifference to human life…usually more than one victim (c) Felony murder unintentional (and victim not co-felon) Extreme Emotional disturbance (a) Intentional killing committed under the influence of reasonable and extreme emotional disturbance  EED is an affirmative defence. Second degree a. aware of and disregards a substantial and unjustified risk Criminal Negligence   mental state: criminal negligence should have been aware of a substantial and unjustified risk of death Notes on aggravation : Chart on page 20 insert here 109 | P a g e . mental state: recklessness b. Intent to cause serious physical injury D. EED manslaughter c.

D. CONFINEMENT OFFENSES False imprisonment Common l Elements: 1) unlawful 2) confinment 3) without consent mental state: general NY Called unlawful imprisonment: Second degree: 1) unlawful restraint 2) without consent 3) with knowledge unlawful first degree add with risk of serious injury Second degree  abducting someone first degree second degree plus  ransom or  restraint for more than 12 hours or  death of victem if victim dies:  accidentally = 2nd degree  intentionally = first degree felony murder Kidnapping Elements 1) false imprisonment 2) involving moving or consealing in secret place mental state: general intent E. SEX OFFENSES Forcible rape Elements: 1) sexual intercourse 2) without consent Degrees of rape 1) sexual intercourse and 2) forcible compulsion 110 | P a g e .

or sexual abuse. F. FP and L by trick Larceny degrees: (1) Over million (2) Over 50k (3) Over 3k (4) Over 1k (5) Called petty larceny 111 | P a g e . Larceny Embezzlement False Imprisonment False Pretenses Larceny by trick Robbery MBE Definition: 1) Tresspassorywrongful//unlawful 2) Taking and carrying away –property must move 3) The personal property of another. C. D.meaning no defense if you think shes 18 min/MPC: reasonable mistake of age is defense   age of consent is 17 Δ-21 and victim is 16 or younger Do not corroboration of facts in forcible rape.who had lawful custody 4) Intent to permanently retain property –intent to A. B. E. Larceny larceny in NY includes larceny. PROPERTY CRIMES: A.Statutory rape 3) accomplished by:  force  threat of force or  unconscious mental state: general intent Maj: strict liability . IV. THEFT OFFENSES Theft Offenses: A. criminal sexual acts. Embezzlement.

Larceny by trick E. Robbery Obtained only custody by false statement Elements 1) Larceny + 2) From another person or presence 3) Force or Threat of immediate injury Mental state: specific intent to 112 | P a g e . Embezzlement Conversion of personal property already in lawful possession Mental state: specific intent to defraud Embez v larceny Embezz= original taking lawful Must have possession =discretion Mere custody not enough (bank security guard) Def: Obtaining title …intentional false statement to defraud Called larceny See above C. future promise is not FP D. even if erroneous Conduct can be larceny (exception to concurance principal) nonlarcenous taking but conduct show later to have intent to steal B. False Pretenses Called larceny See above Issuing band check: (note also called larceny) Elements: 1) Drawer puts a bad check into circulation 2) Knowing there are insufficient funds 3) With belief payment will be refused 4) Payment in fact is refused Mental state: Specific intent Called larceny See above (Start in middle) Second degree  Forcible stealing and  Aided by another who is actually present  Victim is injured  A car is slolen (also NY crime of Issuing bad issuing a knowingly bad check checks) FP v Larceny Larceny only custody FP gets title/ownership False statement= past/present .return not larceny Taking under claim of right is never arceny.

Burglary Elements: (1) Breaking (2) Entering (3) Dwelling (4) At night (5) Mental state: Intent to commit felony inside Note: most states eliminated Third degree (1) Entering or remaining (2) In a building (3) Unlawfully (4) Intent to commit crime inside No requirement of breaking.steal Force:  Sufficient resistance  Pickpocketing not enough force Third degree  Forcible stealing First degree  Plus  Victim is seriously injured  Weapon Robbery and homicide Accidentally = Intentional = F. Forgery Elements: 1) Making or altering 2) a writing 3) So that it is false Mental state: specific intent to defraud G. HABITATION OFFENSES A. dwelling . NY issuing bad check See false pretenses above G. night 113 | P a g e .

breaking Second degree (1) Dwelling or (2) Non-participant is injured or (3) Weapon First degree Knows it’s a dwelling + (1) Non-participant is injured (2) Weapon Note: knowledge kicks it up to first Degrees  Fouth: reckless  Thrir: intentional  Second: third plus knows s/o was inside  First Plus uses explosives… B.the technical requirements such as “at night. Arson Malicious burning a building Burning:  At least charing  Actual burns structure. Possesion of Contraband Weapon: Possession long  Must be loaded and enough to terminate operable  Dominion control  In vehicle: enough Metal state: knowledge of presumption to all possession occupants Act  Really be stolen  Possision/ control  Recovered or used  Of stolen personal wither permission property not “stolen” Mental state  Know criminaly obtained  Intent to permanently deprive the owner his interest  B. POSSESSORY OFFENSES A. Stolen goods 114 | P a g e . carpets not enough C.

Solicitation Elements:   Asking someone to commit a crime Mental state asking is the crime. completion is not necessary 115 | P a g e . ACCOMPLICE LIABILITY Defined: Scope Not accomplice All crimes actually aids or encourages  Foreseeable crimes 1) Mere presence 2) Mere knowledge 3) Victims cannot be accomplice Can withdrawal:  Encourages repudiation before crime  Aides nuetralise or prevent Elements  Help  With knowledge of crime  Intent to help p avoid cops  Mere knowledge enough if facilitates Called renunciation (mpc)  Substantial effort to prevent crime  Affirmative defense NY called certain new statutory crimes  Obstruction of justice  Hindering prosecution Withdrawl Accecory after the fact VI. LIABILITY OF THE CONDUCT OF OTHERS: A. INCHOATE CRIMES A.V.

g.consent or action to common goal 2) Specific intent to accomplish objective Completion is not necessary. E.B. Conspiracy Definition:   Agreement between 2+ Overt act in furtherance Overt act= any act. even prepatory Mental state: 1) Enter agreement. dueing needs 2 no conspiracy Vicarious liability 116 | P a g e No vicarious liability for mere conspirators if not . 2 agree to duel.need at least 2 Wharton Rule: Crimes that involve 2 people necessary for crime no conspiracy until you have 3 e.g. undercover cop How many participants? No unilateral conspiracy Bilateral. crime = agreement Can have unilateral conspiracy.

attempt to pick pocket but no wallet 117 | P a g e . negligence.g. felony murder Impossibility never a defense Impossibility 2 types: 1) Factual Def. Attempt The Act:   Overt act beyond mere preparation Proximate test = dangerously close to actually commiting the crim MPC: substantial step …. All members will be liable for coconspirators other crimes if: 1) Committed in furtherance and 2) Foreseeable involved Impossibility : Never a defense C. physical of factual condition unkown to Δ prevents him e. reckless.strongly cooberates the criminals purpose Proximate test  Mental state    Specific intent to comit the crime No attempt on unintentional crimes E.g.

: attempts to steal but unkown. DEFENSES A.g. belongs to Δ Rule: defense Incohate Doctrines: Withdrawl/Renunciation/Abandonment   Not a defense Conspiracy: only that he will not be vicarious liable after he left. But still liable for conspiracy Renunciation: Defense to all 3 only if: (1) Prior to commission  Sincere  Successful  Preventing the commission (2) complete and voluntary Solicitation does NOT MERGE Conspiracy does NOT MERGE Merger    Solicitation: merges Attempt: merges Consiracy: dos NOT merege (liable for both) VII.rule: never a defense 2) Legal impossibility Def: legal circumstance or status prevents e. CAPACITY DEFENSES (1) Insanity  Mental disease or defect  Most common tests: o M’Naghten Test (Maj-purely cognitive) the Δ must prove either 118 | P a g e .

o No defense against reckless.no prosecution  Under 14 rebuttable presumption against prosecution  Above 14 prosecution is allowed      NY Under 13 only juvinial delequent in family court 13. didn’t know his conduct was wrong or  understand the nature of his conduct o 2) irresistible impulse  Unable to control his actions or  Unable to conform conduct with law o 3)MPC  a. Cant assist attorney (3) voluntary intoxication only a defense to specific intent crimes  all others super high level intoxication of severe “prosation of faculties”  NY o Defense against intent and knowledge crimes…. negligence. pr  2)appreciate wrongfulness (2) Incompetency  Insanity is at time of crime =not guilty by reason of insanity  Incompetent time of trial = postpone trial  Incompetent if: o i. wasn’t able to appreciate criminality of actions  b. cant understand nature of proceeding or o ii.adult for serious crimes 16 can be tried as an adult 119 | P a g e . strict liability (4) Infancy Common law: rule of seven  Under 7. conform actions to law  NY Insanity o Lacked substantial capacity to:  1)understand nature and consequence of his actions.prosecuted as adult only for 2nd degree murder 14 or 15. a.

B.

OTHER DEFENSES

(5) Mistake of fact Common law Defense for: 1) Specific intent: any mistake of fact even unreasonable 2) Malice or general intent: only reasonable mistake of fact 3) Strict liability: never a defense NY  Defense if negates the required mental state: a. Crimes req intent, purpose, knowledge: any mistake of fact b. Negligence: only reasonable mistake c. Strict liability: never (6) Mistake of law  Not a defense  Exception: knowledge of law an element to the crime

C.

SELF-DEFENSE (JUSTIFICATION)

(1) Deadly v non-deadly force Nondeadly: i. Reasonable necessary ii. Protect against immediate iii. Unlawful force Deadly force i. Facing imminent death or serious bodily injury  Exception to using deadly force o Initial aggressot o Duty to retreat  Maj: no duty to retreat  Never duty to retreat from castle  NY: D must retreat  Unless cannot retreat to complete safety or is at home = c. Force to prevent a crime o Non-deadly force for breach of peace 120 | P a g e

 

o Deadly fore: prevent felony risking human life d. Defense of others o Same rules as himself e. Property defenses Deadly force general rule never Dewellings, occupants may use deadly force if: o Intruder gained entry in tumultuous manner and o Necessary to prevent against a personal attack f. Reisting arrest Unlawful arrest- only non-deadly force  NY: only if officer is using exceesive force g. Law enforecement Deadly force only if reasonable

D. NECESSITY AND DURESS
(1) Necessity  Choice of 2 evils  Rule: reasonable believes conduct necessary to prevent a greater harm  Limitations 1) Deadly force to protect property 2) Defendant is at fault in creating the situation (2) Duress  Rule: Δ was coerced to comit crime becaue of threat of immediate death or serious bodily injjry  Exceptions o No defense to homicide  NY: defense to Homicide

E. ENTRAPMENT
  Government unfairly tempted Δ to commit the crime. Narrow defense only if: i. Criminal design originated with the government ii. Δ was not predisposed to commit the crime

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CRIMINAL PROCEDURE
Overview: key issue if 14th search and seizure. 2nd most important confessions, specifically 5th amendment-Miranda doctrine

I.

SEARCH AND SEIZURE, 14TH AMENDMENT
Search and Seizure 4 global issues: 1. Whether the S&S is governed by the 14th? 2. If warrant did it satisfy 14th 3. Even if no warrant did it satisy 14th 4. Evidence obtained illegally to what extent is it admissible

A. ISSUE ONE: IS THE SEARCH GOVERNED BY THE 14TH?
The determination under 14th requires 4 questions: (1) Was the search a government agent? (2) Was the area protected? (3) Did the government agent physically intrude or (b) violate and individuals reasonable expectation of privacy (4) Standing to challenge the gov?

A. Government Agent?  2 kinds: 1) Public paid police 2) Private citizens at gov’s direction of police 3) Private security guards only if deputized w/ power to arrest 4) Public school administrators

B. Area protected by 14th?  14th expressly protects individuals from unreasonable searches of theier: 1) Persons 2) Houses 3) Papers 4) Effects  The protects includes curtilage for domestic use 123 | P a g e

Standing  Key is persons privacy was invaded not of a third party  Standing: 1) Own premises always 2) Reside: always 3) Overnight guest: liekely 4) Solely for business: no standing 5) Own the personal property: only the area 6) Passenger’s in cars no reasonable expectation of privacy NY can challenge if passengers and attribute possession to them B. Society realizes as reasonable  Device is presumed unreasonable if not public use (thermo) Blood and chemical tests:  Alcohol test: NY penal law that anyone driving a motor vehicle is deemed to have been given consent to blood or chemical test D. ISSUE TWO: WARRANT 4 key questions are: (1) Neutral and detached magistrate? 124 | P a g e . Unprotected areas Patty Achieved a Glorious Victory Over Her Opponents 1) Paint scrapings on car 2) Account records held by bank 3) Air Sapce if can be seen in public air space 4) Garbage 5) Voice 6) Odors 7) Handwriting 8) Open fields key is where you expose to thirs parties less expectation of privacy C. Was there an intrusion?  2 ways to have an intrusion 1) Physical intrusion on a constitutionally protected area to obtain information or 2) Violated a reasonable expectation of privacy i. An actual and subjective expectation of privacy and ii.

. warrant “living room and all bed rooms for a stolen tv: o Cannot check kitchen 125 | P a g e . Probable cause and particularity? 1) Probable cause  Proof of a “fair probability” that contraband or evidence of a crime will be found o Hearsay is admissible o Informants tip: may rely even if annonamous. Neutral and detached Magistrate?  Ceases to be neutral is biased if unduly favor of prosecution B. Does good faith save the warrant?  Good faith overcomes defected warrant except 4 below  NY good faith does NOT save warrant 1) Egregious: no reasonable police believes there is probable cause 2) Defected in practicality …not reasonable 3) Falsehoods: from recklessness 4) Biased magistrate D.g.(2) Supported by probable cause and practicality? (3) If not was the a good faith reliance (only MBE) (4) Properly executed? A. The items to be seized no fishing expedition C. The place to be searched and b.majistrate: need common sense practical determination in totality of the circumstances NY Anguilar-Spinelli test: 1) The informants basis of knowledge 2) Reliability or veracity 2)Practicality  The search warrant must state: a. Properly executed  2 parts 1) comply 2) knock and announce 1) Police are only permitted to search the area and limitation in the warrant: o E.

Dangerous c. Voluntary and intelligent (need not tell Δ he could refuse) b. ISSUE THREE WARRANT EXCEPTIONS Mnemonic “ESCAPEST” 1) Exigent circumstances  Evidence will disappear  Hot pursuit of felon  Emergency aid 2) Search incident to arrest’  Arrest  Justification: safety and preserve evidence  Contemporaneous to arrest. Scope what reasonable believed consent c. Shared premises: co-tenant can consent. time/place  Geographic scope: wing span and immediate control o NY containers: only if believed to be armed  Automobiles searched incident to custodial arrest o Interior cabin but not trunk o Secured v unsecured  Once secured can only search vehicle if believes evidence for the crime committed. Lawful access to the place 126 | P a g e .o Cannot check a backpack because to small hide a tv there 2) Knock and announce Unless: a. arrested and secured for driving w/o license cant search car b/c no evidence will be found NY: once outside car can’t search inside of car. discrpency goes to Δ 4) Automobile  Probable cause to believe contraband or evidence  Justification: vehicle travels  Where: entire where believe evidence would be found 5) Plain view  3 requirements a. inhibit investigation C. 3) Consent a. Futile b.g. Apparent authority: if cop reasonable believed TP had authority to consent d.  E.

drunk driving check point ok-for safety  Drug check point at crime areas: not ok b/c for purpose of evidence 8) Terry stop and frisk point is for officer safety  Defined: bried seizure for purpose of investigating a crime (a) “seized” o Reasonable person would not feel free to leave or not answer a question o Factors:  Did cop have weapon?  Tone and demeanor of cop  Told had consent to leave  Pursuit and seizure: o MBE: pursuit is not seizure until submits to police o NY: pursuit = seizure  Traffic stops o Driver and passenger are seized.b. o May order out of car o Dog sniffs only if prolong unreasonably o (b) Terry Frisk  Frisk of outer clothing is cop believes to be armed  What can be seized? o Weapon o Contraband= only without any manipulation NY only weapon (c) Car frisk  Only passenger cabin or where weapon can be found (d) Protective sweeps 127 | P a g e .g. must be for special need.. Criminality of the item must be immediate apparent 6) Inventory 7) Special needs  Random drung checkin o Railroad employees o Custom agents o Public school children involved in extra curricular  May not search for the sole purpose of finding evidence.  E. To the item c.

Inventory 7. Terry stop and frisk D. SILA Justification Search for weapons and Searchable area Wing span of the defendant Inside of car but not trunk 3.(e) Evidentiary standard:  Reasonable suspicion o Must articulate criminal activity o Must be objective o Must suggest that armed and dangerous Warrant exceptions Not an “unreasonable search and seizures” ESCAPIST Exception 1. Consent 4. deliberate or grossly negligent 4) Officer’s reasonable mistake 128 | P a g e . to item and the criminality is readily apparent Protection of officers safety to search for weapons Cant manipulate only touch Only what’s sen during the emergency of chase Search for weapons of evidence of the underlying crime arrested for One defendant is secure then cant check the automobile Must be voluntary 5. ISSUE FOUR: EXTENT OF INADMISSIBILITY? A. Automobile Because of the fleeting nature Where probable cause evidence of contraband will be found Only if lawful access to place. Special needs 8. Exigent circumstance 2.inadmissible B. Federal Exclusionary rule: violation of federal statutory….. Plain view 6. 4th amendment limits on the exclusionary rule: 1) Only for case-in-chief may be used in cross to impeach 2) Knock and announce violation does not cause suppression 3) Police error: only if reckless.

therefore: i. Direct evidence b.5) Fruit of poisonous tree a. MIRANDA B. 5. Rule only voluntary confessions 2. Need: 1) 2) 3) 4) WIRETAPPING Suspected person Time Crime Conversation no protection on friend wearing a tap III. Under NY penal law an officer may make an arrest without a warrant if he has probable cause to believe that a misdemeanor or felony has been committed by the defendant IV. LAW OF ARREST A. 5th Amendment: protects against compelling self-incrimination Fourth: Sixth: Right to counsel Fourteenth: DP. Rule: 5th protects against compelled self-incrimination 129 | P a g e . Derivative evidence c. 3. Independent source. CONFESSIONS 1. 4. FOURTEENTH AMENDMENT VOLUTARINESS 1. arrest without a warrant 1. Attenuation II. B. Need causal link . then breaks causal link ii.only Voluntariness NY: Constitutional protections: A. Inevitable discovery (Iowa murdered girl case) iii. Test for voluntariness a. 2.

MBE 1) Judicial proceeding begin B. When required: 1. interrogation C. NY RULES 1) Cant be convicted on Δ confession alone need additional prof that the crime was committed 130 | P a g e . SIXTH AMENDMENT RIGHT TO COUNSEL A. and police engange in “activity overwhelimg to a layperson” and The defendant requests counsel (2) Arraignment (3) Filing accusatory instraments (4) Any significant judicial activity 2) No right to counsel: (1) Investigatory lineups e (2) Exception: (i) police know Δ is represented by counsel on another charge or (ii) Δ asks for counsel D.C. NY indelible rights 1) Starts when: (1) The defendant is custody. in custody and there is 2.

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A. criminal or civil? Which stage in the proceeding? What purpose. MBE: never allowed 2. NY allowed in limited case: product liability cases for the sole purpose of showing feasibility B. RELEVANCY 1. Relevant = any tendency to make a material fact more probable or less probable that would be the case without the evidence A. substantive or impeachment? Is it relevant (usually is) I.EVIDENCE 3 key areas: 1) Character evidence 2) Impeachment 3) Hearsay Approach 4 steps: 1) 2) 3) 4) What court. CHARACTER EVIDENCE   Defined: refers to a person’s general propensity or disposition Potential purposes: 1) essential element of a case (only in civil never in criminal. prejudicial  if relevant evidence is prejudicial it will be inadmissible  polygraph tests are considered unduly prejudicial PUBLIC POLICY EXCLUSIONS A. Subsequent remedial measures 1. 2) prove conformity with character. 3) impeach credibility 132 | P a g e . Only relevant evidence is admissible 2.

Option 1: On cross they can ask the character witness about specific [bad] acts of the defendant (but they must except his answer and no extrinsic evidence ii. May introduce evidence of prostitution convictions w/i 3 years ii. Defendant may introduce v’s bad character  NY cant bring charchter evidence of violence to prove v was first agresson b. MBE i. Bring good character witness about victim ii. Rape-sexual misconduct: rape shield law only with specific acts and only for 2 purposes: a. Homicide victim: defense to prove self-defense iv. Bring bad character witness that Δ possesses the same bad character triat c. Prosecution Once Δ opens the door the prosecution has 2 options: i. Civil cases General rule no character evidence If character evidence is in then all 3 methods 1)specific acts. Prosecution can bring good character evidence B. Would violate DP a. In NY option 3: prosecution also may rebut that defendant was convicted of any crime that reflects the trait at issue 3. Only about opinion and reputation not specific acts NY only reputation not opinion 2. d. NY: i.A. Criminal defendant has a special privilege to open the door and bring character evidence to prove innocents of the alleged crime a. 2) reputation. Criminal cases 1. 3) opinion 6 exceptions: 1) Civil fraud: to prove 133 | P a g e . Option 2: they can also bring their own character witness testifying with reputation and opinion about the bad reputation of the criminal Δ iii. To show the semen was s/o else’s iii. To show consent ii. Victim a. Once defendant opens the door the prosecution has 2 options i.

3) NY 4) Dead Man Act. a. NY adopts Dead Man act A. Civil cases only. General rule: can’t testify with personal knowledge about a transaction or communication with a deceased offered against deceased. DEFENDANTS OTHER CRIMES OF BAD ACTS FOR NOT-CHARACTER PURPOSES General rule: not admissible for chase-in-chief admissible as substantive evidence for the MIMIC purpose Exception MIMIC 1) Motive 2) Intent 3) Lake of Mistake or Accident 4) Identity  NY you need clear and convincing evidence to prove identity 5) Common plan or scheme  court still weighs the probative value Prove MIMIC WITH: 1) Conviction or 2) Evidence that proves the crime occurred II. (iii)communication. (iv) appreciation of Oath obligation 2) FRE: personal knowledge. Competency 1) Qualifications: (i)perceptions. TESTIMONIAL 134 | P a g e .2) 3) 4) 5) 6) Defamation because character is an essential element of the Negligent hiring: because character is an essential element of the Child custody: because character is an essential element of the loss of consortium B. (ii)memory. WITNESSES A.

Convicted felony iii. MBE i. ANY TYPE OF CRIME no balancing test ii.B. 1) 2) 3) 4) 5) Methods prior inconstant statement bias sensory deficiencies bad reputation or opinion regarding truthfulness criminal convictions a. Any crime where false statement is element ii. NY i. IMPEACHMENT A. Criminal defendant then use balancing test 6) bad acts that reflect truthfulness 7) contradictions Methods of Impeachment Method 1) prior inconstant statement Even use hearsay Foundation Cross ask Extent of Admissibility Only for impeachment not for substantive evidence extrinsic evidence but must give the witness opportunity to explain MBE Substantive evidence = under oath in a prior procedure with opportunity to NY only impeachment Substantive evidence 2) bias 3) sensory deficiencies 4) bad reputation or opinion 135 | P a g e Don’t need to confront Cross or extrinsic Cross or extrinsic . w/i 10 years b.

the witness does not remember on the stand ii. DOCUMENTARY EVIDENCE  Authentication o Pictures: authenticated by a person who recognizes the event you do not need the photographer 136 | P a g e . the writing in accurate 2) counsel may read the notes to the jury but can’t admit it 3) if admissible opposing party can admit it into evidence B. Criminal: need 3) the states is affirmatively damaging WRITING RECOLLECTION A. if witness doesn’t remember you can give her a writing with the foundation of: 1) foundation: i. NY i. made while events fresh in her mind v. Exception if prior inconstant statement was 1) mad in writing and signed or 2) made in oral testimony under oath iii. Impeaching own Witness: 1. writing was made by the witness or by her direction iv.regarding truthfulness 5) criminal convictions 6) bad acts that reflect truthfulness 7) contradiction Types of crimes: Felony convictions Any crime relating to truthfulness Only w/i 10 years Cross No extrinsic evidence Cross No extrinsic evidence Not necessary NY all bad acts ony on cross Extrinsic evidence only to show bias NY all bad acts even no coonvictions if reflect on truthfulness no collateral contradictions B. witness had personal knowledge of the events in the writing iii. Cant impeach own witness ii. MBE: always impeach own witness 2.

only during while still married c. spousal privilege a. confidential communication between spouses a. “out of court statement” B. HEARSAY EXCLUSION Hearsay exclusion (meaning not part of definition of hearsay) A. attorney-client B. Circumstantial evidence to showing speakiers state of mind C.III. PRIVILEGES A. (B) offered for the truth of matter asserted. Witnesses prior statement of identification 2. privilege only held by testifying spouse  NY does not recognize spousal privilege  2. can be raised by either spouse b. Spousal privilege (2 types) 1. Prior Statements of Trial Witness 1. Prior inconsistent statement 137 | P a g e . rule: may not compel spouse to testify about anything against defendant spouse b. communication must be confidential - - IV. HEARSAY Definition of Hearsay: (A) out of court statement. The show effect on the listener 6. applies even after divorce c. Not “offered for the truth of matter asserted” 4. physician-patient privilege C. Verbal act / legally operative words 5.

3. Prior consistent statement in rebuttal D. Party admission

HEARSAY EXCEPTIONS:
List: (1) Forfeiture by wrongdoing (2) Former Testimony  If non-party and offered for substantive evidence you need: i. Under oath ii. Opportunity to develop statement (cross, direct, ..) (not a grand jury iii. The party offered against was a party at the prior proceeding iv. Same subject matter v. Declarant is unavailable (3) Statement against interest Party admission (hearsay exclusion in MBE) (4) Dying declaration (5) Exciting utterance (6) Presence sense impression (7) Presence state of mind (8) Declaration of intent to do s/t in future (9) Present physical condition (even statement to layperson) (10) Statement made for purposes of medical treatment (11) Business records (12) Public records Grounds for unavailability (a) Privilege (b) Absence jurisdiction (c) Illness/death (d) Lack of memory (e) Refuses to testify  NY  Located 100+ Miles from court house  Declarant is a physician Hearsay exclusions

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Hearsay Exceptions Exception Forfeiture by wrong doing Do you need unavailability? Unavailable Elements Δ’s conduct designed to avoid testimony Notes Burden: MBE: perpond. NY: clear & c Former Testimony Unavailable (a)Former proceeding, Deposition (not grand jury) (b)opportunity to cross/develop (c)was a party previously (d)issue in both are same (2)statement against interest Unavailable Party or a/o Statements against relates to Pecuniary, property, Penal - Time when statement made - Personal knowledge req. - Only unavailable (1)Belief of impeding death Criminal case: Need corroboration Exception’s exceptions

Dying declaration

Unavailable

NY: homicide only

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(because dead) (2)Concerning the reason of death Criminal homicide only Excited utterance Present sense impression Present state of mind unavailability immaterial unavailability immaterial unavailability immaterial Civil all cases While declarant still under stress of excitement.. While event is occurring or immediately after Contemporaneous Statement of State of mind, Feeling, Emptions To do s/t in future

NY need corroborating facts

Declaration of intent

MBE: unavailability immaterial NY Unavailable unavailability immaterial NY unavailable if layperson

NY Need corroboration of relationship

Present physical condition

About current physical condition

Statement for medical treatment

Statement made to a/o Concerning: Present symptoms Past symptoms General cause of condition Purpose to get medical treatment

NY Not available to doc for purposes of litigation

Does not include the identification or nature of allegation (unless domestic/child abuse where identification is part of treatment) does not include statement of doc

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to patient Business records 1)a/ type records for bus 2)regular course 3)regularly keeps theses records 4) made time of 5)info from employees or Info from statement part of another hearsay exception Note: admissibility hearing even in presence of jury Fact findings resulting from investigation authorized by law Pursuant to duty Activities of agency don’t need the “regular requirement” On direct if expert is present For impeaching expert testimony in cross. Then admitted as substantive evidence Foundation: (i)personal

Public records

NY: Not well developed so use business records rule

Excludes police docs prepared for prosecution

Learned Treatises

n/a

Past recollection recorded 141 | P a g e

unavailability immaterial

Documents: i. Grand jury ii. Business records VI. Blind DNA test iii. Forensic lab if not targeting an specific individual ii. JUDICIAL NOTICE A. Subject matte i. Something available in the genral community 2. Police reports prepared for investigation d. Non-testimonial i i. Documents not testimonial i. Police assisting in ongoing emergency c. Statements in response to police investigation to prove past events of crime b. Independent analysis and only generally states others’ findings iv. Are “testimonial” i. Criminal 1.knowledge (ii)fresh in mind (iii)accurate (iv)written by w (v)w doesn’t remember V. SIXTH AMENDMENT Sixth Amendment gives a criminal defendant right to cross examine witness Rule: may not use hearsay if: (3) Testimonial (4) Declarant is unavailable (5) No opportunity to cross a. Not Conclusive evidence: If judge takes judicial notice jury may still chose not to follow it 142 | P a g e .

END of MBE Start NY only 143 | P a g e .

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Trusts 6. No fault insurance 14. Commercial Paper 12. Domestic Relations 4. Secured Transaction 13. Corporations 5. Workers compensation 146 | P a g e . PR 7. Agency 11. Conflicts of law 10. Partnerships 8. Federal jurisdiction 9.NY Specific Table 1. NY Practice 2. Wills 3.

SUBJECT MATTER JURISDICTION A.NY1 PRACTICE CPLR   CPLR=Civil Practice Law and Rules Most common tested areas 1) SOL 2) Service of Process 3) Personal jurisdiction 4) Matrimonial jurisdiction 5) Motion to Dismiss and Summary Judgment 6) Contribution and third parties 7) Provisional remedies 8) ADR See on your own o Verification of pleadings o Bill of particulars o Default judgment o Neglect to prosecute o Discovery o Appeals o Judgments  I. Federal courts have exclusive jurisdiction (e. Exception to Supreme Courts general jurisdiction 1. Supreme Court  Need jurisdiction over the subject matter or original subject matter jurisdiction  NY Supreme court has general jurisdiction o Supreme became most important o Unlimited jurisdiction over 1) Monetary claims 2) Equitable claims 3) Residency of parties 4) Place where cause of action arose  Forum non convenience o There still will be subject matter jurisdiction but court has discretion. to dismiss on ground of FNC B. Claims against the State of New York 147 | P a g e .g. bankruptcy) 2. upon motion.

All other courts  County Courts: max 25k  NY Civil Courts  Justice Courts: max 3k E. public holiday then next day B. or summons with notice o Note: exclude the date wich event occurred. Medical Malpractice  SOL: 2 ½ years  Accrual: date of the malpractice o generally we don’t care when Π discovered the injury.  Exceptions A) continuous treatment by the physician  Must be treating the same medical condition that gave rise to the malpractice B) Forign object rule: if doc forgot a foreign object in Π then:  2 ½ years fro opporation or  1 year from date of discovery. 2013 o If last day is Sat. Sun.g. CPLR Article 78 proceedings 3. day is Jan 1. Supreme Court’s Exclusive subject matter jurisdiction: 1. May sue the county in Supreme Court C..  note: family cort does not have jurisdiction on this 2. Declatory judgment D.g. General  Affirmative defense raised by Δ  SOL begins to run when COA accrues ( usually when injury first occurs)  COA must be commenced no later than the last day prescribed o Commencement = filing process  Filing process = summons and complaint. Appeals Suprme court  Appellate division  Court of Appeals II. STATUTE OF LIMITATIONS (SOL) A.o Note: state sued in NY Court of Claims o Only when Δ is the state. Matrimonial action (e. annulment divorce…. E. or should have discovered 148 | P a g e . 2014 not December 31. 2011 with 3 year sol. event happened Jan 1.

  

Whichever is longer Foreign object = s/t doc not intent on leaving there Foreign object is not chemical, prosthetic, fixation device

C. Other Professional Malpractice  Other Professionals = learned profession e.g. Lawyers, accountants, engineers, architects. Meaning you need school  SOL: exclusive 3 years  Accrual: service is complete o Regardless of discovery or when actual harm happened o Architect: completion of the building o Bodily injury  3 years from injury  3 years is both tort or breach of k (which is normally 4 years) Special rules for building against architects and engineers:   If bodily injury then 3 years from injury If action is brought more than 10 years after building eas complete then: 1) Π must serve a notice of claim on the architect or engineer at least 90 days before the suit 2) Π may obtain a pre-action discovery from potential Δ’s during the period 3) After suit is commenced, if Δ moves for summary judgment burden will shift to the Π to make an immediate evidentiary showing that there is a “substantial basis”……

D. Municipal Tort liability a. SOL: 1 year 90 days b. Accrual: date of accident c. Notice of Claim, a separate prerequisite you must serve a notice of claim on the municipality within 90 days i. No notice = dismissal on grounds failure to state a cause fof action ii. after service Π must wait an additional 30 days to commence the action iii. may ask court for additional time for notice of claim of the 1 year 90 day did not expire E. Product Liability a. Negligence: 3 years from injury b. Strict liability: 3 years from injury 149 | P a g e

c. Breach of warranty: 4 years from delivery (b/c SOG) d. Indemnity and contribution: 6 years from actual payment of the judgment e. Toxic substance: i. Toxic substance = inherently harmful e.g. asbestos ii. 3 years from discovery of injury or should have discovered iii. Does not apply to medical malpractice same 2 ½ years

F. General Toll and Extensions 1) If Δ is no in NY when COA accrues, SOL begins to run only when Δ returns to NYU a. Exception if Π had basis of jurisdiction so that process could have been served on Δ outside of NY b. Note: Rarely entitled to toll 2) Π Infancy or Insanity a. Π may sue through a legal representative b. When disability ends longer of either: i. Usual SOL or ii. 3 years from the end of the disability 1. E.g. in breach of k may rather take the 4 years than 3 c. Outside limit of 10 years for commencement of action when: 1. Infancy: Medical practice no later than 10 years 2. Insanity always has a 10 year limit d.

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NY2 AGENCY AND 3 PARTNERSHIP
I. AGENCY
A. Liability of Principal to Third Parties for Torts of an Agent B. Liability of P to T for k’s entered into by A C. Duties A has to P 3 Main Issues dealing with Agency

AGENCY
A. P’s Tort liability for actions of A Respondnant Superior or Vicarious liability Rule 2 part test (1) a principal-agency relationship exists (2) committed within scope of the relationship Relationship A,B,C test test P-A relationship requires a. Assent b. Benefit, A’s conduct benefits P c. Control, P has the right to control A by power to supervise manor/method The same test of ABC goes on: i. Subagent and ii. Borrowed agent Independent k Independent contractors: General rule: no P-A relationship  Reason is P usually has no control on IC General Rule not vicarious liable for IC’s Tort Exceptions: a. Hired for Ultra hazardous activity b. Estoppel, if P’s holds out IC as an agent and third party relies to his detriment Scope of Principal Agent relationship: 1) Kind (was it part of job description?) 2) On the job (did the tort occur on the job?) a. Detour= minor departure considered inside scope 151 | P a g e

Scope of P-A

b. Frolic = major departure and independent journey, outside scope 3) Intend to benefit P (was A’s actions intended to benefit P?) Intentional General rule: intentional tort outside scope of employment tort Exceptions: 1) P authorized the intentional tort 2) Natural incident to carrying out P’s directive 3) Motivated by desire to serve the P Common example: club bouncer or repo man B. Liability of Contracts entered into by A Rule  Key is authorization Principal is liable for contracts entered into by its agent if the P authorized the agent to enter into the k. (ii) Actual Express authority (iii) Actual implied authority (iv) Apparent (v) Ratification 1) Actual express  Can be oral and private but narrowly construed o Exception: interest in land that last more than 1 year must be written (SOF) Revocation:  Act of either P or A  Death of P  Incapacity terminated o Exception durable power of attorney will not terminate upon incapacity but will terminate on death 2) Actual implied Includes acts that are: a. Necessity to accomplish express authority b. Custom c. Prior dealings between P and A where P acquiesces to A;s Below no real authority but created with subsequent action 3) Apparent Authority 2 part test (i) P cloaked agent with appearance of authority and (ii) Third party relied to detriment

Authority

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Self-dealing b.4) Ratification Grant authority after k entered into only if (i) P has knowledge of all material facts and (ii) P accepts benefits (iii) But P cannot alter the terms C. Usurping P’s opportunity c. Secret profits Remedies for (1) Any losses breach of duty (2) Disgorging profits II. Partners will be liable if represent to third party that a GP exist and 153 | P a g e Liabilities . Formalities  No formalities or filing just act like partners  Key is profit sharing Definition: a general partnership is an association of 2 or more persons carrying a business as co-owners for a business for profit  Profit sharing is prima facia evidence a partnership exists Agent principals apply. Duties Agent owes P Duties (1) care (2) Obedience (3) Loyalty. PARTNERSHIP Partnership 1. General Partnership Formation a. which includes a. each p considered agent to partnership 1) Liable for tort of copartner (personally fully) 2) Liable for contracts of copartner(personally fully) 3) Personally liable for all debts of the partnership and for: (i) Incoming partners’ liability for pre-existing debts but o Limited to partnership property (not personally) (ii) Dissociating partners liability for subsequent debts (iii) Until (a)death (but estate liable until P’s get notice of death) or (b) notice of withdrawal given to all known or potential creditors  Estoppel: 2.

illiquid property b. capital contributions by partners 4. profits surplus if any Real termination is after dissolution Grounds for dissolution: Dissolution Termination 154 | P a g e . period between dissolution and termination Partners liability 1. until notice to creditors Priority of distribution 1. Share of profits and surplus = personal property liquid and liquidity (transfer to others) c. new business. Self-dealing b. Secret profits Remedies only in equity 2) Action for accounting Partnership a. dissolution = beginning of end. Usurp c. old business 2. Winding up Dividing profits and losses 1) Absent and agreement partners share equally 2) absent and agreement losses shared like profits  testable: one partners gives millions a second manages third does nothing. Share in management = GP illiquid (may not transfer management rights Ask whose money was used to purchase the property Management Absent an agreement each partner has equal vote Regardless of how much capital and … Salary Absent and agreement partners get no salary Exception: 3. default rules equal a. inside creditors 3. outside creditor 2. no agreement. created when any partners withdraws b. Specific partnership assets = owned by GP.Rights between partners T relies to detriment GP’s are fiduciaries to one another and therefore: Duty of 1) Loyalty a. still share equal absent and agreement  first look at agreement. real end is called termination c. winding up.

Acts of Partners: (i) per agreement. (iii) bankruptcy. (iv) breach of agreement. (ii) incompetence.s LP: has not control and only liable for contributions All members have For professionals only limited liability Only liable for contributions Note: can sue individually Control: by Must also have limited life and members Limited liquidity Limited liability RLLP LLC Register with state Articles of organization Publication requirement 155 | P a g e . (iv) 3. (ii) partnership at will. (iii) incapadabilty. (iii) mutual assent. Decree of court in equity: (i) unprofitable. Other partnerships Formation GP Limited partner Act as partners Profit sharing File LP cer with state and names of GP Register with state as RLLP State profession Liability and Others: control Equal liability Equal control of all partners GP liability and control for LP. (ii) unlawful. (iv) expulsion of partner 2.1. Operation of Law: (i) death.

Organization of Corporation Issuance of Stock Directors and Officers Shareholders Fundamental corporate changes Controlling Shareholders I. s/t the NY bar exam even screws up a.” NY calls it “Certificate” 2. VI. ORGANIZATION OF NEW YORK CORPORATION (2) Pre-incorporation k’s (3) Consequences of incorporation Most important issues: A. Execute the certificate 2. IV. III. Deliver the certificate to the department of state 3.NY4 CORPORATIONS The governing NY statutory law is the Business Corporate Law. Hold the organization meeting o You only need one incorporator o Only natural persons can incorporate not other corporations 2) Paper: certificate of Incorporation 1. FORMATION REQUIREMENTS Key is    People: incorporator Papers: certificate of incorporation Acts: 1) People: incorporators Incorporators do 3 things: 1. BCL 6 Issues to look out for: I. purpose of certificate: 156 | P a g e . II. V. Note other state call in the “articles of incorporation.

outstanding Must state in the certificate: a) Authorizes stock b) Number of shares per class c) Information on par value. 7. preferences. and limitation of each class d) Information on any series (series = sub class) of preferred shares 1. issued. 5.  Ultra vires act is when BOD acts out side purpose  Rules today: (i) ultra vires k are valid not void (ii) SH can seek an injunction (iii) the responsible directors are liable for ultra vires losses Capital structure o Types of stock see glossary about: authorized. status qua is unlimited duration (unlike LLC’s) corporate purpose statement is required. 6. contract between the corporation and SH ii. 3.’ ‘incorporated’ or ‘limited’ in the name Address Agent for service of process Service  Corporate designated agent for process is the new York secretary of state. 4.i. Info included in the Certificate Corporate name  Must include either ‘corporation. 2. 3) Acts 1. contract between the corporation and New York State b. rights. Process o Incorporator signs o Acknowledges before notary o Delivery to NY secretary of state o Pay fee o the department files the certificate  De Jure Corporation: When the secretary files the certificate there is conclusive evidence of valid formation 157 | P a g e .  You may also designate an agent name and address of the incorporator duration: no need.

New York law govern the internal affairs.2. Charity: no statutory ceiling 4. BOD. DE FACTO CORPORATION / CORP BY ESTOPPEL 1. Governing law  Once a corporation is formed in NY. EFFECTS OF FORMATION 1. campaign contribution rule under ___ b. Limited liability  Only corporation is liable  Limited liability to SH. Political: only up to 5k per candidate or organization Note: not a BCL rule. Even if the corp does no business in New York 2. Officers C. Contributions a. De facto  If promoters failed to create a de jure corporation. the next option is de facto corporation  Must show: (1) there is a relevant incorporation statute (BCL) (2) good faith and colorable attempt to comply with it. Corporation by estoppel 158 | P a g e . officers 3. Own entity  Once a corporation is formed it is considered its own entity separate from the shareholders. directors. and (3) the business is currently running as a corporation  if applicable wil treat entitly as a corp except for action against the state  most BSL statutes abolished it  only time case law implies it will apply is the NY Secretary screwed up and failed to file the certificate 2. Organization meeting  Incorporators hold an organization meeting  What happens: 1) Adopt bylaws 2) Elect the initial director 3) Then the board takes over B.

act as a corp then estopped from denying… C. PRE-INCORPORATION CONTRACTS MOST TESTED in this issue  1) Promoter: ( see glossary for definition) will be liable  Unless novation (novation in k law: where parties sign off for third party to take up the k. see above)  If no novation possibly both corporation and the promoter are liable  Or unless k states no liability after incorporation  If no incorporation then P will be liable 2) Corporation  If corporation adopts the k it will automatically be liable  Novation then only corporation is liable  Adopts: o 1) express adoption by BOD o 2) implied adoption: if the corporation knowingly accepts benefit of the k 159 | P a g e .o Abolished in NY o The theory was. BYLAWS 1. General  Technically you don’t need by laws  Conflict with certificate: o The certificate wins over the bylaws b/c certificate is k with the state  By laws are not filed with the state  Out siders are not bound by the bylaws internal only  By laws adopted by the incorporators at the organization meeting  SH can amend or repeal or adopt new bylaws  BOD: can only do the same if granted power: o Power granted in the certificate o SH grant permission o Even if BOD amend SH have last say and can over power… D.

Info from its out-of-state incorporation iii. a. Regular course of INTRAstate business c. ISSUANCE OF STOCK  Most tested areas in this section (1) pre-emptive rights (2) form. “doing business i. secret   only liable if secret – if corporation is aware of the profits no liability D. ITSELF  Note we are dealing with the promoters dealing with the actual corporation Key is there must be both (1) secret and(2) profit  if secret profit then liable for an accounting for profit – i. penalties and interest II. “qualify” corp must: i. File with NY department of State ii.e. is simply a corporation incorporation out-side of NY (even New Jersey) ii. FOREIGN CORPORATION  RULE: foreign corporations doing business in NY must qualify. Domestic corp: is corp incorporated in NY b. Effects of not qualifying foreign corporation may not sue in NY until it qualifies and pays fees. Pay fees “privilege of doing business in NY” v. Proof of standing with home state iv. “Foreign” i. Designate NY secretary of state as agent for service of process d. taxes. give it to corp: a. Foreign corp. rules on profit 1) sale to corporation on property acquired before becoming propter: o test is: profits = price paid by the corp – FMV (not the amount the promoter paid 2) sales to corporation on property acquired after becoming the promoter: o test profits = price corp paid – price promoter actually paid (not FMV b.of consideration 160 | P a g e .E. SECRET PROFITS DEALING WITH CO.

the payment of which is not secured by corporate assets o Bonds: hold debt security. Can only revoke if subscription provides or all subscribers agree.(3) treasury stock    Issuance of stock = corporation sells its own stock o Issuance raises capital. signed offer to buy stock from a corporation.  Revoking a pre-incorporation subscription: a. buyer are equity holders Debenture: a loan. Form of consideration  Five permitted forms: (1) Money (2) Service already performed (3) – (4) Binding obligation to pay money or property in the future (5) Binding obligation to perform future services for an agreed value   Applies even if the corporation has not been formed yet “water” any issuance of stock for anything but above 5 is treated as “water” 2. SUBSCRIPTION Defined: a subscription is a written. Par 161 | P a g e . CONSIDERATION FOR STOCKS testable 1. Amount of Consideration a. Can’t revoke because corporation relies on the money to form Post-incorporation subscription o Revocable until accepted o Must treat all members of class equally corp accepts the subscription and subscriber defaults: 1) if paid less than half but failed to pay rest w/i 30 days  corp keeps money and cancels shares 2) if paid more than half  corp must try to sell and return any access minus corps expenses   B. creditor All issues in this section only apply to issuance A. Generally irrevocable for 3 months b.

DIRECTORS AND OFFICERS 1. Pre-empted rights = rights of SH to maintain percentage of ownership a. By BOD if SH allow c. How are they set: i. Types: 162 | P a g e . Number of directors one or more (yes can even be one) b. SH at annual meeting d.     Par means a minimum issuance price (can’t sell for less than the par value) No par: no minimum can sell for any amount Treasury stock = stock previously issued and required by the corporation Acquiring property with par value stock: valid only if the property is worth the par value o BOD decision is conclusive on value o As long as no fraud Watered stock o Defined: When stock is traded for less than par value o Consequences:  BOD is liable  Purchaser with knowledge is also liable. Election i. In the bylaws ii. New issuance and ii. Only applies for issuance of new stock within 2 years of formation iv. considered to have constructive notice  Third party only liable with knowledge (BOD and purchaser are still on the hook) C. First at incorporators then ii. Statutory requirements a. Only available where there is i. -only exist if the certificate says so III. PRE-EMPTED RIGHTS very tested 1. For money does not apply if new issuance is in exchange for services/property iii. By SH act (see later) iii.

Filled by BOD  Without cause: SH g. Unanimous written consent ii. Without cause  only SH and only if certificate /bylaws allow o If without cause then may be a breach of claim outside of BCL against corporation f. How the BOD acts: Individual  The individual directors are not agents of the corporation  Only agents when acting as a group  2 ways to make a valid act i. Regular meeting: not notice requirement if time and place of meetings are set in bylaws ii. Special meeting: must state time and place but need not state purpose  Effect of lack of waiver makes special meeting void unless: o Waives notice defect in 1)writing or o 2)attending the meeting without objection h. Proxy BOD have a non-delegable fiduciary duty  BOD may not vote by proxy or by agreement  SH can vote by proxy/agreement 163 | P a g e . Filling vacancy  Cause. BOD only if granted the power in bylaws or certificate iii.  Classified: (a/k/a staggered board) different classes of Board members with different terms. Elect different classes each year. Meeting o Individual acts are void unless ratified  Meeting can take place anywhere Notice i. SH remove with cause ii. Standard: vote each member at SH meeting for one year term e. Removal i.

only in certificate NOT IN BYLAWS (c) Decreasing quorum i. and skill that an ordinary prudent person would exercise under similar circumstances Nonfeasance (fail to act)  Usually difficult for liability because no causation Misfeasance Apply business judgment rule (BJL) 164 | P a g e . DUTY OF CARE Duty of care standard: A director must discharge his duties in good faith and with the degree of diligence. only in certificate NOT IN BYLAWS (b) Supermajority i. Quorum of meeting 1. ALWAYS need majority of members present to pas Board member manage Committee:  Committed may not do: (1) Cant Set directors compensation (2) Can’t fill board vacancy (3) Cant Submit fundamental change to SH (4) Cant Amend by lays  May submit recommendation abaout above E. Passing resolution= majority of members present o E. care. and 3 votes for a passing resolution. Need majority of entire board 2. Certificate of bylaws but never less than half (d) Decreasing requirement of majority for passing resolution i. (a) Increasing quorum requirement i.i. certificate requires 9 members so you need 5 members for a valid meeting.g. may never be changed.

Compensation  determined by the BOD themselves  No waste. Interest Director Transaction  Defined: any deal between director and corporation  Interested director transaction will be set aside unless: 1) The deal was fair and reasonable or 2) Material facts were disclosed and approved by i. improper loans of corporate funds B. SH action ii. BJL: means court will not second guess the business decision of the directors if it was made in good faith. must be reasonable and good faith C. BOD w/o counting vote of interested director iii. liability a. on all directors even if not present or dissents 165 | P a g e . was reasonable informed and had rational basis A director is not a guarantor of success only required to act with prudence F. Unanimous vote of disinterested BOD in cases where there is not enough disinterested BOD to act. fairness. DUTY OF LOYALTY Duty of loyalty standard: a director must act in good faith with conscientiousness. corporate opportunity  duty of loyalty prohibits usurp a corporate opportunity  usurp: may not take an opportunity unless tells the board and waits for the board to reject it  corporate opportunity = s/t the corporation needs or has an interest or tangible exectation in or that is logicaly related to its business G.  BJR does not apply to duty of loyalty when there is a conflict of interest A. improper distributions (see later) C. morality and honesty that the law requires of fiduciaries. OTHER BASIS FOR DIRECTORS LIABILITY A. competing ventures  no competing with corporation  liability: constructive trust which means make director account for profits D. (Note: interested directors can count toward quorum but cannot vote) B.

Permissive  Court discretion and must show: o Good faith o Courts determines best interest or corporation o But limited to:  Settlement amount  Expenses  Attorney fees 166 | P a g e . dissent in writing by: 1. Good faith reliance: may rely on (1) a fellow BOD.b. employees who believes to be reliable or (2) accountant …. no oral dissent c. OFFICERS    Officers have same duty as directors Officers are agents of corp o only have powers the are authorized o Cross reference with agency law o Implied power of president to sue on behalf corporation BOD selects the officers I. in writing to corp secretary at the meeting 3. in writing dissent in corporate records ii. officers. registered letter to corp secretary promptly iii. BOD can sue but does NOT get reimbursed for collection C. in the minutes 2.(3) committee H. REIMBURSEMENT (INDEMNIFICATION) OF DIRECTORS AND OFFICERS A. avoid liability dissenting BOD must i. Of-right  Of right if wins  BOD or officer has a right to o Attoneys fees o Court cost o Fines o Judgment  If she wins the case and corporation refuses to pay her. Prohibited:  If BOD will be held liable then reimbursement of court cost or indemnification is prohibited  There must be an actual holding of liability to prohibit reinburcment B.

no personal liability 167 | P a g e . Closed held  Defined: 1) few shareholders. Certificate or bylaws can provide indemnification for board liability  Exception: no indemnification for BAD FAITH. SH do not manage the board does B. NOT attorney fees to sue the corporation for reimbursement  Corp can advance litigation cost but if not entitled to reimbursement must return D.C. dileberate. Fiduciary duties IN CLOSE CORP TO sh  Controlling SH have an utmost duty of care not to oppress and use personal power’s at the expense of the minority shareholders. o Give the minority a remedy for behavior that defeats their reasonable expectation for investing D. SHAREHOLDERS  Most important section Most importation in this section: 1) 2) 3) 4) 5) PCV Derivative suit Liabilities of distribution Inspection rights SH/BOD voting agreement A. wrogfull profits IV. Professional Corporation P. SHAREHOLDER MANAGEMENT A. dishonest.  Similar to business corp. but need to form as PC  Only licensed professionals as SH (but may hire nonprofessional employyes)  Malpractice: only for their own not partners  K: only corp is liable. 2) not publicly traded note most exam q are about close corporation  You can have shareholder management in closed corp. if: 1) Unanimous approval of all incorporators of SH 2) Conspicuously noted on the front and back of all shares 3) All subsequent SH have notice 4) Shares are not listed on an exchange or regular quoted over-the-counter C.

Need to show abuse and unfairness. Use of corp. Alter ego alone is not enough for pcv ii. Fairness dictates to hold them liable i. If parent creates a subsidiary for purposes of shielding liability. SH must abuse the privilege of incorporation 2. director. Complete dominion and control 2. and officer is licencec to practice the profession B. Wages i. funds for illegality note it’s a very high stand for PCV c. employees note: special NY rule C. Usurp: SH can sue board members on behalf of corp as a derivative suit for BOD usurping corp opportunities. Alter ego i. PCV parent corporation i. To prevent fraud ii. To perpetrate a fraud or injustice on Π 3. SH DERIVATIVE SUITS a. Derivative suit the SH sues on behalf of the corporation. Certification: with state and added requirement: list each SH. 168 | P a g e . will be liable if showing of totally dominating subsidiary (alter ego standard) ii. b. b. iii. Which generally: 1.’s claim. is liable A. for the corp. SH LIABILITY  No personal liability. Requirements for piercing 1. (same standard as regular) fairness requires PCV d. PCV a. General fact pattern is undercapitalization Note: undercapitalization alone is not enough to PCV need showing of (1)complete domination and (2) fraud or injustice Note: PCV more common in tort e. Can only pierce in close corp. corp. in a close corporation the ten largest SH are personally liable for wages and benefits for the corp.

Motion to dismiss is based on finding of independent directors or special committee that the suit is not in the corporations best interest ii. Once SH sues and loses no other SH can bring the same suit f. Stock is worth over 50k 4) Demand on directors that corporation sue a. Also possibly liable to corp if loses Exception: if corp is dominated by wrong doeers and they would benefit the SH can petition to court to direct recovery to SH e. gets recovery) g. Requirements for bringing a derivative suit 1) Stock ownership when claim arose 2) Adequate represent the interest of the corporation and shareholders 3) Bond (ny crazy rule) it some cases required to post bond for damages in case she loses a. When SH wins the CORPORATION GETS THE RECOVERY i. Demand is waived if would be futile: i. Bond is waived if SH owns 5%+ or b. Settlement only can settle on court approval h.c. It’s a direct suit for SH own profits d. Court will look at 1) independence of investigation and 2) sufficiency of investigation iii. BOD derivative suit i. Only in NY a BOD CAN sue ANOTHER BOD to compel: 1) Accounting for violation of duty 2) Misappropriation of corp assets 169 | P a g e . But note: suing the corp for unpaid dividends is NOT a derivative suit. If SH wins/loses may possibly be entitled to recover cost of litigation but come from judgment ii. Motion to dismiss derivative i. Egregious conduct on its face 5) Pleading with particularity need to give all the detailes more than a regular complaint 6) Must join the corporation as defendant (as Δ even though corp. Futile if majority of board is interested or under control of interested ii. Board unreasonable failed to inform itself iii.

Copy sent to corporation 3. D. General is revocable even if says irrevocable on its face b. b. The corporation may not vote. set no fewer than 10 and no more than 60 days before the meeting Note: need not own the stock at the time to vote if you were record owner at record date and sold it. Treasury stock does not have a vote. Holder has an some kind of interest in the share (e. ii. ii. Directed to secretary of corporation 4. Record date = is a voter eligibility cut-off. Record owner = the person shown as the owner in the corporate records. General rule: the record owner as of record date has the right to vote i. BOD may not. Exception: proxy is irrevocable if: i. the executor can vote even though not…. Exceptions: i. SH may vote proxy. c. PROXY i. Who votes: a. in writing stating irrevocable on proxy and ii. VOTING TRUST i. Death of SH. Authorizing another to vote shares 5. c) death but only if notice of death is received before vote iv. Irrevocable proxy: a.ii. Writing 2. Requirements: 1. Signed by record SH or agent 3. b) attending the meeting and voting. SH VOTING A. Written trust agreement controlling how shares are voted 2. ii. Does NOT need to meet the 6 derivative suit recquirment’s but sues in BOD own name and recovery to corp. Transfer legal title of shares to voting trust 4. Only valid for 11 months iii. Revoking proxy: a) by writing before meeting. stock option interest) d. Defined: 1. Original shareholders receive voting trust certification and retain all sh rights 170 | P a g e .g.

No trust.5. Quorum –general need majority of outstanding shares. Contents: time/place iii. Where do SH vote? a. focus is on shares not shareholders  Quorum can be altered in bylaws but never less than 1/3  can never reduce quorum to less than majority voting 171 | P a g e . Must state the purpose of meeting may only act on issues of purpose nothing else and meeting Note: can call a special meeting to remove a BOD not an officer iv. Types of SH meeting 1. Written consent from ALL holders of voting rights or 2. Irrevocable if states so 4. Must give notice to every SH entitled to vote written notice 10-60 days before ii. 10 year maximum (but can extend at the end) e. Voting agreement 1. iii. Annual: i. Writing and signed 2. Only 2 ways SH may make a valid act 1. plurality: the highest vote getter for each seat of the board wins even w/o a maj. Called only by 1)board of 2) a/o mentioning by certificate/bylaws b. Method of Voting a. Can get court order if fail to hold annual meeting 2. But not specifically enforceable 3. b/c no voting agreements for director B. Notice requirement i. Fail to give note action taken at meeting is void unlessed waived C. elect directors ii. Meeting (special. Special a. shares satay with SH distinguish: BOD not voting agreements Note: no agreement can have in it a requirement to vote or act a certain way if becoming directors. annual) b.

(gives minority representation e. 2) Cumulative: each shareholder has a certain amount of votes based on his shares to vote for all canditates. 0 0 0 100 100 100 B loses No representation A= 101 shares B= 100 shares 172 | P a g e . Compare strait and cumulative voting A’s candidates X. Y.g. 2 types: 1) Regular/ Non-cumulative (forgot name) : each SH votes his share and vote on each BOD individuals.   Supermajority or 2/3: can change the requirement to require supermajority (90%) but only in the certificate not the bylaws actual voting: you need a majority of shares actually voting not enough to have majority of those voting meaning absentees can kill the vote (unike BOD vote) quorum is never lost if people leave (unlike BOD vote) Voting on BOD a.Z B’s candidates: LMN Voting on 3 X Y Z L M N Winner (determined with plurality Top vote getters X-101 y-101 z-101 0 0 0 X.Z All A.Y.

bylaws or agreement ii. But only valid if there are not an undo restriction on alienability iii. Closed corporation may require to sell shares back to corporation after death v. Conspicuously written on face of share and 2. SH INSPECTION RIGHTS 1) List of Minutes and records of SH: 173 | P a g e . TRANSFER OF STOCK BY A SH A. If certificate is silent than regular not cumulative voting c.Cumulative Votes X Y Z L M N XY A = 303 X-101 y-101 Z-101 L-300 M-0 Z-0 L Guarantees some minority representation B = 300 b. Stock transfer restrictions i. Consideration: May sell for less than par values that only a restriction on the corporation B. May restrict if stated in certificate. Right of first refusal: valid if reasonable iv. The TP had actual knowledge F. Formula 100/x+1 E. Restriction enforceable against TP if: 1.

(iii) interim statement of… a. a. Note: not clear “proper purpose” or which documents Note: BOD ALWAYS HAS A RIGHT TO ALL DOCS unfettered G. demand written request. first as preferred.g. CL right: All SH have the right to inspect records at a reasonable time/place. they collect a second time equal share to common stock B. 2 day notice. Funds used for distribution 1) Surplus: collect from surplus Surplus = assets – liability – “stated capital” Stated capital never be used for distribution Stated capital = par value of stock issued the rest is surplus e. officers. Preferred: paid first.000 shares @ $2 par stock for $50. $20. written demand for minutes and b. Dividends a. Easy to get.000 is stated capital $30. may provide by mail 4) Common law right a. corp may not ask for affidavit 3) List of business info: (i) annual balance sheet. Preferred cumulative: preferred plus entitled to dividends for all the years BOD didn’t distribute d.000 is surpluss -if no par BOD can allocate any but not all to surpluss 174 | P a g e . DISTRIBUTION 3 types:    Dividends Payment to repurchase shares Redeem BOD declares when distribution are given.a. Failure to give affidavit is grounds for denial 2) List of current directors. Any shareholder can demand. Common stock: regular stock entitled to get dividends b. Any SH can demand on 5 days notice. issues 10. pay preferred if anyleft over common get c. A. Preferred participating: get twice. (ii) profits and losses. But only for proper purpose b. Affidavit Demand But: Corp can demand sh to show in affidavit that its interest are only in the corporation and it did not try to sell SH list in the past 5 years i.000.

C. Improper distribution     Corp may not make distribution if it is insolvent or will become insolvent because of it. a good faith reliance rules apply to relieve BOD liability D. Insolvent = corp unable to to pay its debts on ordinary course of business Director are personally liable for unlawful distributions SH if knew o Recovery: goes to the corporation in a derivative suit o Note: BOD. FUNDAMENTAL CORP CHANGES A. Redemption  Set in certificate and must be done properly with in each class V. BJR. CHARACTERISTICS Where fundamental you need:   BOD and SH approval Filing with state A. SH rights of appraisal  Defined: right for SH to force corporation to buy back its shares for fair value  Triggered by: 1) Some amendments to the certification 2) Consolidation 3) Corporate mergers into another corporation 4) Corporations transfers substantial assets 5) Shares acquired in share exchange  Exceptions: o No rights of appraisal in publicly traded corp on NASDAQ b/c not need just sell them publicly o ROA is Specifically need for close corporations where only the corp can purchase it  Required actions: 3 steps 1) Before SH vote written objections and intent to demand payment 2) Vote against or abstain from the change 175 | P a g e .

TRANSFER OF ALL OF SUBSTANTIAL ASSETS   Key is transfer of assets not in ordinary course of business (e. no fundamental change to buy assets 176 | P a g e . AMENDMENTS TO CERTIFICATE OF INCORPORATION   Minor change can be made by board Approval o Board o Majority of SH entitled to vote  Entitled to vote means Approval of supermajority o Then you need 2/3 entitled to vote Once approved must deliver certificate of amendment to Department of State NOTE dissenting SH still have the right of appraisal. consolidation  Successor liability: The surviving company succeeds to all rights and liablies of the constituent D.    C. MERGERS OR CONSOLIDATION steps o Each corp adopts a merger plan o SH approve in each o But not SH required if parent owns 90%.3) After vote make a written demand  Payment: fair value if cant agree go to court o Court does not make a minority discount B.g. real estate developing corp of course sells of its assets) Approval o Selling: Need approval of majority of shares entitled to vote o Buying corp: does not need any approval. Rights of appraisal o Deliver certificate of merger to state o dissenting SH have right of appraisal o But dissenting SH of surviving corporation generally do NOT have right of appraisal o Short-form mergers have right of appraisal Effect of merger...

Management illegal oppressive or fraudulent acts toward … b. Effects of dissolution o Wind up  Gather assets  Convert to cash  Pay creditors  Distribute remaining to SH. Management can be BOD or majority SH ii.) whose shares on not traded on a securities market on 2 grounds a. CONTROLLING SH  RULE: outside –closed corp SH have no fiduciary duties to each other 177 | P a g e . stating corp has insufficient assets to discharge liability or dissolution is beneficial to SH 2) One-half of SH entitled to vote may petition is management can get along with each other and manage corp 3) Any SH if SH can’t elect BOD for 2 annual meeting 4) 20% or more of voting shares (close corp. diverting or looting assets i. DISSOLUTION Voluntary:   Need majority of shareholders entitled to vote. pro rata   VI.   Rights of appraisal o SH of selling compay o Buying corp no rights Filing o No filing requirement Liability o Generally no liability b/c both corps remain E. Note: court will deny dissolution if there is an alternative such as corp buy out Avoid dissolution: o Within 90 days of petition by the pertitioners stock at fair value…. Do not need BOD Involuntary dissolution  May be requested by: 1) BOD resolution or maj SH entitled to vote. Management is wasteful.

Duty owed to SH iii. Minority SH dealt fairly iii. INSIDE TRADING a. Market trading on inside information: i.A. CONTROLLING SHAREHOLDERS   Owes a duty to minority sh. Who can sue: SH whom director/officer deals with. Tainted by self dealing ii. Ligitmate business purpose C. Test: those a reasonable investor would find important in making an investment decision ii. may not dominate corp for individual advantage at the expense of minority Sale of controlling share o Controlling sh may keep profits from selling the controlling position at a premium o Liability if o 1) sells to looters o 2)de facto sells corporate assets o 3) sells seat on the board B. Damage: corp can sue to recover profits b. Nondisclosure of special facts i.price paid 178 | P a g e . Damages = value of stock reasonable time after public disclosure . FREEZOUTS   Freezeout = merger soley to sqeeze out minority SH Court will look at  Fair price  Fair course of dealing  Ligitmate corporate purpose  Factors i.

” 2..VII. “the general rules is. Outstanding stock: is the stock the corporation has already sold and not reaquired e. Issued stock: the number of shares the corp actually sells d. Authorized stock: mak number of shares the corp can sell c. CORPORATIONS GLOSSARY b. “in the instant facts” 4. An exception to the rule 3. Promoter = person who actin gon behalf of the corporation not yet formed ESSAY TIPS Buzz Words Issue Rule Analysis 1. “because” 179 | P a g e .

180 | P a g e .

Takes instrument for value 2. Good faith 3. Payee: beneficiary of the order C) Elements of negotiability: 1.NY5 SECURED TRANSACTION /NY6 COMMERCIAL PAPER I. payee B) Draft (check) 1. Unconditional 3. Types of Negotiable Instruments A) Promissory note: 1. Writing and signed 2. Parties: i. HIDC D) Holder is E) HIDC 1. Pay a certain sum 5. Maker ii. Parties i. Promise or order 4. Dully executed IV. takes free all personal defenses subject only to real defenses I. Drawer: makes the order ii. II. Drawee (bank) iii. Payable to bearer to order II. SECURED TRANSACTION COMMERCIAL PAPER Article 3 of the UCC The Rule: negotiable instrument is dully negotiated to HIDC. Without notice of any real defenses 181 | P a g e . Payable on demand or a certain time 6. Theories of liability III.

VI.V. Forgery Duties and liabilities of parties 182 | P a g e . Discharge known to HIDC viii. Incapacity to k iii. Duress v. Infancy ii. Surtetyship ix. Material alteration x. Fraud in the factum vi. Illegality iv. Discharge in insolvency proceeding vii. What defenses does HIDC take free of? a. Free of all personal defenses b. Subject to real defenses: i.

NY7 PROFESSIONAL RESPONSIBILITY dfdf 183 | P a g e .

Tax judgment 2.NY8 CONFLICTS OF LAW I. Married persons not based on any gender B. Res judicata 2. If Multiple homes  principal home 184 | P a g e . tax. Test (1) jurisdiction at foreign forum. Extrinsic fraud. Extrinsic Rendering court made a mistake of law (should have raised at trial) D. E.g. Domicile operation of law 1. Penal judgment (“offense against the public) 2. Comity: voluntary discretion. Effects of recognition of rendering court 1. Physical presenace and 2. Contrary to public policy (should have raised at trial) 3. DOMICILE A. RECOGNIZING FOREIGN JUDGMENTS FULL FAITH AND CREDITS A. Enforcement of the judgment: if FFC effect then must be enforced Foreign Countries 1. Real Defenses 1. (this is s/t that could not have been raised at first trial. bribed the judge) C. Judgment on the merits 2. FFC requirements 1. alimony/child support. (2) fair procedures 2. Child based on Father 2. Mutuality E. Equitable defense. judgment obtained by fraud. Intent to be domiciled. Bad defenses 1. Domicile of choice. Uniform Foreign Money-judgments recognition act: must recognize money judgment. Incompetant: last domicile of father 3. Does not include: penal. 3. Final judgment B. 2 requirements: 1. Proper jurisdiction in the rendering court 3.

2. Even very short time with requisite permanent intetn ii. Insurance k related: place the insurance policy was entered into C. Torts 1. Even with intent must actualy physicaly reach there. Liability: general NY law 3.000 + reasonable relation then NY law 4. May only have ONE domicile II. CHOICE OF LAW NY APPROACH A. Notes: i. Property 1. Apply law that most resembles its own law SPECIFIC APPLICATIONS A. Real property: situs 2. Rules governing conduct: where tort occurred 4. UCC: if reasonable basis to 2 states then the express provisions governs. Contracts 1. 3.. True conflict (both states have a legitimate interest) then own state law if has legitimate interest 3. Impact of UCC: D. Disinterested forum: (no interest in applying its own law) and forum non convenience is not available then i. Start with Interest analysis 2. NY obligation law: 250. Family Law 185 | P a g e . B. Make its own judgment or ii.4. No reasonable basis iii. Loss distributes: 5. Personal property: situs of property 3. The Rule: interest analysis: start with presumption apply own law considerations 1. False of real conflict. Contrary to public policy ii. Express Choice of law: given full recognitions. Inheritance E. exceptions: i. iii. No true consent 2.

186 | P a g e .

) (iii.) (ii. NY no fault insurance can collect if accident out of state drunk drivers drag racers fleeing felons (car thieves)     D. hence no fault B. When can you go to court despite collecting no fault? a. more than basic economic harm 187 | P a g e . Who is entitled to collect No fault? Example Joe is driving      1)Owner of policy 2)Any passenger of the car 3)Any pedestrian hit by the car This essentially means that each passenger of the car collects from the car’s insurance Makes no difference if there was negligence. what can you collect?   medical Lost wages o Caped at 2k month (24. Who is bared from no fault? (i.000/year) o Only continues for 3 years.) C. if you have damages more than the coverage b.NY9 NO FAULT INSURANCE (mini subject)    NY only Look for it in essay No fault is only for personal injury no property damage A. o Only up to 80% of wages (if earn less than 2k/m) Miscellaneous $25 a day (very little) No pain and suffering Can’t collect more than the policy limit NY no fault policy is portable.

   i. 90 day disability even if he brings a suit he can still claim from the no fault insurance he may also want to bring it for pain and suffering You can only sue if you have a party to sue. If there is injury but hit a tree. loss of fetus v. significant disfigurement iv. 188 | P a g e . If it’s over 50k in a year then he is entitled to bring a negligence suit c. dismemberment (losing a limb) iii. medical 4. or hit a party that was not negligent. Add 25/day for misc. permanent consequential limitation of a limb or an organ vii. so calculate 3. Mathematics determining if the injuries exceed 50k. meet the threshold but no one to sue. serious injury list: i. permanent loss of organ (kidney) vi. death ii. 80% earning (if he makes more than 5.

so just made up rules and applied it. e. Story.NY10 WORKERS COMPENSATION Very small area. for a fixed amount of time. employer is liable to employee through insurance. This will bar pain and suffering and punitive. o Employee precluded from suing coworker. employee drunk o 2)employee intentional tried to injure himself or others o 3) if injured during a voluntary off duty athletic activity o Exclusions does not include (still in scope of employment) 189 | P a g e . regardless of fault to employer.g. The rule:  Statutory insurance exclusive remedy for covered employee who sustains a job related area o Key aspects. Only NY  Prof. Not independent contractors o Employee v independent gets into agency law see then 3 specific exclusions o 1)teachers o 2)part time household employees o 3)clergy o So their remedy is traditional litigation not the insurance (purpose so that the institutions purchase insurance) What is covered?   Only covered injury which is generally is scope of employment on premises Exclusions o 1)employee causes his own injury. o It is exclusive as employee cannot bring a negligence claim against employer.  Coworker negligently injures you. had never learned workers comp. ever. Got a q. employee gets insurance but can’t sue coworker or employee  Exception: if coworker worked outside scope of employment Who is covered?   Only employees. You get credit for applyin fake rules.

employee tried to still from client but on the job stil included Horse play.g.  Illegal activity  E. Still gets workers comp 190 | P a g e .

not subject to future determination 4) Trustee: a) Inter vivos anyone b) Testamentary then not 1) under 18. Requirements for Trusts II Types of Trusts III Modification and Termination IV Trust Administration V Liability of Trustee VI RAP and Suspension Rule I. REQUIREMENTS FOR TRUSTS A) Express Trusts a. 3) convicted felons and 4) incapable because of drunkenness or dishonesty c) Non-resident alien can’t be trustee unless (1) related to decedent or (2) resident of NY 5) Beneficiaries 191 | P a g e . corpus. 8 requirements 1) Settlor: creator makes the trust 2) Delivery of legal title 3) Property (res.NY11 NY TRUSTS Topics: I. settlor must actually own not expectancy  Must be identified property. 2) judicially incompetent. principal to a 4) Trustee who holds legal tile for the benefit of a 5) Beneficiary with 6) Intent to create a trust 7) Lawful purpose 8) In a validly executed document Note no consideration required 1) Settlor = over 18 and capacity to make k 2) Delivery if titled asset then must be formally transferred to trustee 3) Property /res.

a) b) c) Must be defined and ascertainable If ambiguous then becomes a resulting trust Exceptions: “family” or “next of kin” okay 6) Intent to: a) Create and enforceable obligation (not mere precatory language) b) Trustee must be given duties. if not duties then called passive which is not a trust 7) Lawful purpose: not for (1) commission of crime. Name trustee as beneficiary. Settlors Estate can be beneficiary but there needs to be at least another beneficiary e. But limiting marriage to particular religion or race valid. 192 | P a g e . Trust can be changed during lifetime of settlor b) Key requirementtrust must be in existence or concurrent when the will is executed c) Pour over can go to a trust that the settlor did not make d) Pour-gift valid even if the trust is unfunded 2. Pour over is where you have a testamentary gift to an existing trust a) Avoids wills formalities. Settlor may be an income beneficiary for life d. Only requirement: settlor can’t be the sole trustee and sole beneficiary. Life insurance proceeds a) You can have insurance proceeds payable to a trust. Settlor can retain power to amend or terminate B. (3) against public policy a) Restriction on marriage is against public policy. (2) destruction of property. Pour-Over Gift 1. TYPES OF TRUSTS A. Revocable inter-vivos trust a. You can create an unfunded revocable insurance trust. b. Settlor may be a trustee c. 8) Trust execution a) Writing b) Signed by settlor AND c) Notarized or signed by 2 witnesses II.

g.b) If testamentary then in the k must state “the trustee named in my will as the life insurance beneficiary” c) Can do the same with saving and pension plans C. Avoids guardian proceeding b. It qualifies for the 13k per done annual exception 2. Creditors to the depositor always reach the Totten Trust balance…. E. then survivorship language can be set aside. E. Depositor makes deposits during life time. Uniform Transfers to minors Act UTMA 1. 3. C. 3 benefits of UTMA a. Gist under the UTMA made to a custodian and must specify make under the NY UTMA 3. The depositor may change the beneficiary but it must be made in the same way as revocation 5. beneficiary has no interest until depositors death. 2. Avoids trust c. D. Revocation: a) Withdraw all money b) Express revocation during lifetime during life time by making a writing naming the beneficiary and the financial institution and having revocation notarized and delivered to the bank c) Revocation by will but must comply with the above rule d) Death of the beneficiary…… 4. Totten Trust (ripe for testing) 1. If one joint tenant deposits more than the other it is treated as a gift to the other joint tenant. No special words are necessary just deposit. Can be made by will 193 | P a g e . It’s in the depositors name “as trust for” a named beneficiary. It is not a real trust. Called bank trust or poor means trust. The surviving joint tenant takes the whole account without probate. “to John and Jane with right of survivorship” B. Each joint tenant holds one half of the joint account regardless of who deposited. Joint Bank Accounts Not a trust and not a Totten Trust A. where at death he takes all. Challenges: challenger must prove with clear and convincing evidence that a survivorship was never intended and the account was merely opened as convenience to the depositor. a) Note: joint tenant can mess up his share if he takes more than half of the account during the co-tenants lifetime.

Pay left over to him at 19 (21 before 1997) 5. Exceptions: i. for charitable purposes only (health. Enforced by s/o designated in will or by court order ii. 5 exceptions 194 | P a g e . Statutory Spendthrift Rule NY automatically included in all trusts as to income need expressly state not spend thrift As to principal not included unless expressly stated 1. Characteristics: a. Pay to the minor for his needs c. Cemetery trust: classified as charitable trust (no RAP issue) 2. may be perpetual and NOT subject to RAP (like other trusts) 4. Constructive trusts: equitable remedy to prevent unjust enrichment from a wrongdoer 3. Duties of the custodian a. Resulting trust not a trust but equitable remedy a. exception: a trust for the masses is OK 2.4. “Cy Pres” (near as possible) doctrine applies. Purchase Money Resulting Trusts not recognized in NY (unless done promises and clear and convincing evidence. Defined: someone puts property in TP name and TP doesn’t want to gift it back. If stated purpose cannot be fulfilled then court will order as near as possible 5. must be indefinite beneficiaries and they must be a reasonably large group (the opposite of a trust that requires ascertainable group) b. i. Pet trust: last for duration of pets life. Gift generally falls into the residuary estate a. Honorary trust – no human being is beneficiary. Spendthrift provision protects from voluntary and involuntary transfers of trust. specifically to creditors 2. Attorney General represents the trusts – indispensable party and has standing G. Legal title is with the minor 6. NY does not recognize it. Donor appointed as custodian then money stays in his gross tax estate F. Other not Trusts: 1. education. Hold. manage and invest the property (prudent investor standard) b. religion…) 3. H. Charitable trust Not a real trust 1. Spendthrift protection to remainder beneficiaries you need express state it 3.

. Very broad powers to don almost anything e. 2 part Test: (1) intent of the settlor. Then changed by the court 4. does not protect the settlor 5. But NO ONE CAN CONSENT FOR MINORS (gestation not minor) c. sell. Can’t borrow trusts funds (even if fair interest rate and secure) 195 | P a g e . Exceptions to Termination of irrevocable trust: a. 5 prohibitions: absolute rule i.Creditor providing necessities Child support and alimony Federal tax lien Access income beyond support and education (very hard to get to b/c it’s based on B’s lifestyle) v. Appropriate when_____ 2. ii. Borrow money on behalf of the trust c. mortgage. contest. MODIFICATION AND TERMINATION A. Trust cant terminate or amend unless power expressly reserved in the trust 2. ALL Beneficiaries consent b. B. repairs. Can’t buy/sell to himself ii. TRUST ADMINISTRATION A. III. (2) if the specific directions frustrates the primary purpose. Termination 1. court may also authorize an invasion if not enough from the income…. no protection to a revocable trust i. Claftin doctrine = primary purpose of the trust comes before the specific direction in the trust 3. Continue a business under the trust (if he does liable for losses unless court approval) 3) Self-dealing a. Power to exercise without court order or express authorization b. iii. 10% levy under CPLR §5205 to all creditors 4.g. settle… 2) Trustee cannot: a. Engage in self-dealings b. Trustee Powers: 1) NY Fiduciary Powers Act a. Unborn children and next of kin or heirs don’t need to consent IV. iv. lease. Trust Modification 1.

. Exculpatory clause a. Can’t lend money to the corporation (must return interest and security) iv. Remedy: return profit and swallow all losses. signing in his own name mentioning the trust will still create personal liability in the trustee. Cannot be used in testamentary . Needs to be signed by trust 2) Even if personal liable may indemnify to trust if (1) k was w/i powers of the trustee and (2) acting in proper course of administration B. He can get liability insurance and bill the trust 2) Trustee can get reimbursement if (1) acting in trustee powers and (2) trustee was no personally liable C. Don’t look at hindsight…. Can’t profit from self-dealing v. S a. May be used in an inter vivos trust b. Tort 1) Trustee liable personal and for trustee’s employees a. Corporate trustee can’t buy its own stock Absolute rule = no defense of reasonableness or good faith b. must sign on behalf of trust. Trustee investment powers (1) Trustee may manage and invest (2) Uniform Prudent investment Act look at the whole (3) UPIA: Modern portfolio key is maximum total return and entire big picture “custom tailored” investment strategy look at (1) overall trust portfolio and (2)expected total return. May go after TP if related to trustee D. (protects against isolated shitty investments) trustee doesn’t have to justify every single investment rather the whole. Sue to remove trustee 5. May ratify and waive (if very beneficial to trust) 6. 196 | P a g e . Affirmative duty: segregate trusts funds and title in trusts name i. k 1) Depends how trustee signed his name. Surcharge action – sue for any loss 7. V. Third parties a. May always demand an accounting C. Remedies for Breach of fiduciary 4. LIABILITIES OF TRUSTEE A. B. Can’t go after a TP BFP unless actual notice of self-dealing b.iii.

RULES AGAINST PERPETUITIES  RAP = no interest valid if it can vest after LIB + 21 years  RAP ratified statute automatically reduces all age contingencies to 21 years  RAP applies to trusts Rules against suspension act  Rule: void is it suspends the power to alienate for a period longer than lives in being + 21 years  But only when there are NO persons who can TOGETHER transfer title  Specific problems: a) Spend thrift b) Life estate in an unborn person or in an open class that may possible include an unborn person 197 | P a g e .(4) Trustee has adjustment powers VI.

Surviving spouse 1. Grandchildren iv. Parents v. a. Intestacy Glossary  Intestate  Decedent: person dies w/o a will  Distributee: person who inherits  Issue: all lineal descendants  Administration  Administration proceeding  Intestate property  Operation of law  Residuary B. Distribution A. Any other distribute C. applies both by intestate and by will i. 198 | P a g e . Order or priority i. Children iii. b. Siblings vi. INTESTACY EPTL: Estates and Trusts Law SCPA: Surrogates Court Proceeding Act A. NY adopts modified per stirpes: which means you go to the first line alive and divide equal shares there. Children 1. Spouse ii.NY12 WILLS I. Chart on fractions: 2. Note by will: default rule is per capa at each generation unless specifies per stirpes. Per capa at each generation (by representation at each generation) a. Scheme: go to first line that’s alive and divide in equal shares. Then the nect generation of dead children split the whole pot equally. No children = 100% 2. Children = first 50k + 50% D.

Advancements: a. DNA v. considered as if predeceased the decedent and passes… c. Proving it i. Child inherits from birth relationship b. special rule a.E. Separation decree: by spouse that wants to inherit d. a/o can disclaim b. Disqualifications: DISMAL a. writing ii. irrevocable iv.g. Open and notoriously acknowledges G. Adopted by relative. Full inheritance rights b. disclaimer has children and would screw over a predecsed sibling’s child) d. Divorce b. cant screw over other takers by disclaiming (e. Adopted children 1. Nonmarital children a. No advancement unless i. requirements: i. files with surrogate court w/I 9 months 199 | P a g e . Child adopted by spouse of birth parent: then inherits from both adopting parent and birth parent 4. Marriage void e. Abandonment or lack of support by spouse that wants to inherit H. Files and acknowledges iv. affidavit that no consideration in return iii. Father marries mother ii. Disclaimer a. General rule: Adopt from adopted family. New family (unrelated prior): no intestate inheritance rights from birth parents or family. Paternity suit iii. Contemporaneous writing made at the time of the gift and ii. birth family don’t inherit from adopted child 3. and adopted family adopts from adopted child 2. Invalid divorce in NY but in other state c. Unless the decedent was the adopting parent then child inherits under the adoptive relationship F. Signed by donor or done I.

Proponent has the burden 1.e. Interested witness statute a. Defined: witneses sign a sworn statement in the presence of an attorney reciting all the statements they would state at trial b. cant disclaim to get Medicaid or medicare II. Admitted in NY if validly executed under a. Foreign Wills Act 1. 7 point test (1) 18 years old (2) Signed by the T or by T’s direction  If by T’s direction then signor cant be witness and must sign own name also and give address (3) T’s signature at the end (4) T must sign or acknoldge in the present of each withness (5) Publication. You can use it to remind witness of for a hostile witness c. Law of state where executed b. WILLS WILLS FORMATION A. tell the witnesses that this is his will (6) At least 2 attesting witneses  witnesses need not sign in each other’s ot T’s presence  T must acknowledge or sign first (7) Execution ceremony must be completed in 30 days  Starts to run from first W’s signature Codicil requires same formalities B. Not void unless would have taken under intestate law i. In that case take the lesser of intestate share and will D. Defined: appears below the signature line and recites the elements of due execution b. Attestation clause a. Not a substitute for live testimony 2. NY law regardless where 200 | P a g e . Probative value: perma facia evidence of facts presented. Self-proving affidavit a. Burden of proof a. This is a substitute for live testimony C. Rule: will is valid but interested witness is void b.

No Revival of revoked wills 1) You must properly re-execute the revoked will to revive merely revoking a second will does not revive a previous will 201 | P a g e . Changes after execution only with 1) Only 2 ways i. Revocation by implication 1) Convey over the same property in a subsequent will (note: to the extent possible you treat the secnd as a codicil) 2) If wholy inconsistent then revokes original will D. T’s request ii. partial revocation by physical act in NOT recognized in NY A. Revocation by act of another only if: i. Valid revocation: 1) Rule i. Must touch the letters of the will B. Codicil ii.c. Physical act a. T other witnesses present (need 4 people there) E. Exception armed forces until one year of discharge Lawyer Malpractice  No privity to beneficiaries so they cant sue  There is privity to the personal representative (permitted suing lawyer for bad tax estate planning) III. REVOCATION OF WILLS A. Law of the state the T was domiciled E. PHYSICAL ACT AND WRITING B. New properly executed document 2) Words added after executed are disregarded i. Presumptions: will not found presumed revoked F. Express revocation: “I hereby revoke my old will” C. Subsequent testamentary act ii. Holographic will are not recognized in NY a. REVIVAL A. T present iii.

If others got nothing. 4) annulment. separation decree also voids other non-testamentary gift. Marriage does not affect the validity of a will B. Divorce has no effect on the validity of a will (it only affects the disposition to the spouse) C. Does not apply if the child received under another settlement 1) Settlement includes: life insurance. E. Step 2: take that share and take from the other’s pro rata not equally. divorce. i. The other children got  the after born child gets same as siblings and gift is treated as if a class gift was made. 2) If other children received different amounts  step 1: add the amounts together then divide by all the children (including the after-born). A-1M. 250k. after born child also gets nothing ii. PRETERMITTED CHILDREN (CHILD NOT IN WILL) A. B.g. B. C after born  divide 1.i.25M/3 and 3) No other children when execute  unborn child will take his intestacy share 4) other children’s shares are reduced prorate D. Rule: a parent is not required to leave his children anything. Divorce. Applicable state: EPTL: protects an after born child that are not provided for anyway in settlement or by will C. It will void: i. Voids Totten Trusts D. By codicil and incorporate be reference the original revoked will 2) DRR 3) Lost will statute C. Rule if the T had after born child after execution rule 1) T had other children at execution: i. annulments and Separation decree 1) Rule: final decree after the execution of the will has the effect or revoking all provisions favoring the spouse (gifts and fiduciary appointments) are revoked by operation of law 2) The divorce does not affect the disposition to the children of the divorced spouse 3) If the spouses get remarried then all provisions in favor of the former spouse are restored. Wife (other) must be pregnant at the time of death no sperm bank crap 202 | P a g e . Totton Trust E. Voids life insurance ii. REVOCATION BY OPERATION OF LAW A.

of distributing property. During the 120 hours until he dies he can do whatever he wants. ABATEMENT AND ADEMPTION A. both intestate. Rule for Joint tenants and tenancy in its entirety: 1) One half-pass to each party (b/c normally the whole thing passes and onehalf would normally be impossible. Predeceased legatee is T’s issue or sibling AND ii. so it makes sense to split it and each party’s heirs get half) C. Lapse in Residuary 1) If estate is (a) devised to 2 +.g. Same for A’s takers claiming B’s share. Types of gifts 1) Specific gifts 2) Demonstrative legacy 3) General legacy 4) Residuary disposition 203 | P a g e . Only applies for this purpose only. (c) the anti-lapse does not apply then other residuary beneficiaries take… 2) If part covered by the statue then anti-lapse applies also. E. A.g. According to the URSDA B is deemed to predecease A and B’s taker don’t take from A. A dies and B dies 20 hours later. Rule (Under Revised Uniform Simultaneous Death Act) 1) Clear and convincing evidence that the decedent survived by 120 hours 2) Each is deemed to predeceased the other i.Words of disinheritance are given full effect in partial intestacy IV. Predeceased legatee leaves issue 3) Conditional bequest e. B. B’s takers want to take A’s claiming. A husband and wife. (b) the gift lapses. ANTI-LAPSE STATUTE SIMULTANEOUS DEATH ACT A. A’s property passed to B. Anti-lapse state 1) General rule: predease T gift lapses 2) Anti-lapse statute saves legacy if i. “to A if he survives me” then no anti-lapse 4) Adopted out child named in a will will be covered by anti-lapse B. now they take. CHANGES IN BENEFICIARY AND PROPERTY DURING T’S LIFE A.

ii. 3) Stock split: closely held = specific gift. General: “I give 50k to A” 3. i. Residuary and intestate 2.5) Intestacy: no residuary and no anti-lapse applicable B. Demonstrative (pro rata): “ 4. Public traded = general legacy i. Items that qualify for estate tax marital reduction C. Proceeds received under an executory k that are paid after death 3. Exception pour over wills  Therefore a codicil cannot A. Proceeds from a guardian or conservator sale of specifically bequeathed property the B takes to the extent that the money can be traced. 2) Rule by demonstrative: if no funds in source then turns into a general legacy. V. For ademption purposes like general. Insurance proceeds for lost damaged or destroyed property that are paid after death 2. COMPONENTS OF THE WILL  Do not recognize incorporation by reference  Everything must be dully executed 1. 3 statutory exceptions: 1. Abatement 1) Rule: more gifts/claims against the estate than there are assets to cover then gifts abates 2) Creditors get paid first 3) Order of abatement: 1. Even if there are notes relating to the sale of the specific gift ii. Does not get stock received from dividends. if not in the estate at death the would-be-taker loses. INCORPORATION BY REFERENCE 204 | P a g e . but takes the stock split like a specific. Specific 5. Ademption (failure of gift) 1) Rule: only by specific gifts.

Rule: k to make a will can on be established with express provision of intent to make the will’s promises are intended as a k. (3) statements to attorney who prepared the will ii. MISTAKE B. stocks. CONDITIONAL WILLS 1. (2) statements to third parties. Next. CONTRACt TO MAKE A WILL 1. Probate the breaching T’s new will (even though written as k) (reason being there may be other provisions that are not part of the original will k) ii. Procedure if surviving T breaches contract and devises a different will: i. WILL CONTESTS A. Latent: mistake not evident from looking at the will i. Only time on bar you argue both sides: if conditions only reflects motive  valid even if condition triggers… if real intent based on condition void E.g. Rule: extrinsic evidence same as latent just NO Statements to third parties admissible C. Joint will: a will with 2 parties … 2. Can introduce: (1)facts and circumstance. If extrinsic evidence does not cure the ambiguity then gift lapses 2. Rule: absent evidence presumption T read and understood the will. bonds… need mandated by law VI. So no extrinsic evidence overriding plain meaning. AMBIGUITY 1. Patent: mistake in the four corners of the will i. A. TESTAMENTARY CAPACITY A. Rule T must have capacity to: 205 | P a g e . ACTS OF INDEPENDENT SIGNIFICANT  Rule: a will may  Example: “To A the contents of my yacht”  Exception titled documents e. Conditional will: only valid if x condition is met 2.B. impose a constructive trust in favor of the intended beneficiaries D. 3. Rule: extrinsic evidence admissible.

Construction proceedings ok iv. The will proponents 206 | P a g e . 1. (4) presence of 2 witnesses.g. F. 2. Exceptions: i. Inference of UI: (rebuttable inference) a) Gift to one in confidential relationship AND b) Person was active in preparing the will 4. Safe harbor provisions available in discovery only: a. e. Objections to jurisdiction 3. Infant will not lose if his guardian filled on his behalf iii. NO CONTEST CLAUSE “IN TERROREM” 1. age. Following no sufficient alone to prove: a) Opportunity (alone not enough) b) Susceptibility of T. Request for attesting witnesses c.) Understand the disposition a) Note: less capacity than any other area of law B. Insane delusion C. (2) executor gets statutory commission. Person who prepared the will b. Burden on contestant to prove: a) Influence: The existence of exertion of influence b) Effect: the effect of the influence was to overpower the mind and will of the T c) Causation: the product of the influence in a will would not have happened but for the influence 2. Appointment by drafting attorney a) Only entitled to half the statutory commission unless: b) (Will get full commission if) Written consent signed by T that (1) a/o can be made executor. illness (alone not enough) c) Unequal disposition (alone not enough) 3. (but still no contest that previos will was revoked by physical act) ii. Undue influence 1. 4. 3.Understand the nature of the act Know the nature and approximate value of his property “natural objects of his bounty” (who his family is…. Claims of forgery or revoked by later will. (5) signed by t. NY Rule: given full effect even if contested with probable cause and in good faith 2. (3) attorney will also get legal fees. Bequeath to drafting attorney: automatic inquiry by surrogate court with a challenge (Putman scrutiny) 5.

life estate iv. Net Estate: includes Testamentary substitutes 1. Types of substitutes i. ELECTIVE SHARE A. Takes from beneficiaries under the will and fro testamentary substitutes 3. Non-Tsubs NOT INCLUDED IN THE NET ESTATE: i. US Bonds vii. Life insurance Purpose to protect the surviving spouse from getting screwed 207 | P a g e . Note intestate share is always greater (50k +1/2 v only 1/3) C. Tip: if T had some interest probably in the estate 4. Rule: the elective share includes the probate estate and testamentary substitutes (Tsub) called “augmented estate” aka “elective share estate” 2. Totten Trusts ii. All provision proved with either witnesses or copy VII. Calculation (greater of 50k or 1/3 net estate) – any testamentary or testamentary substitute dispositions = elective share B. Life transfers with strings attached a. Employee pension plan… v. Established that will has not been revoked b. A destroyed will may be admitted to probate if: a.g. Payment 1. no contest not even safe harbors…) G. The named executors 4. ADMITTING DESTROYED WILL TO PROBATE 1. Power of appointments 3. Revocable trusts. Gifts made within 1 year of death a. Prove due execution c. Note: T can provide any terms for no contest has he wishes so long as expressed (e. Excess of 13k and b.d. Survivorship accounts (joint tenancies) iii. The calculation in theory is only applied to the net probate estate 2. Gifts causa mortis (fear of death) vi. If elective share is not satisfied from the probate estate then the SS takes from other taker pro rata. Rule 1.

One ½ pension iii. Rule a SS may take intestate (Children 50k + ½. i. no children 100% or probate estate) or elective share (includes T-subs) 2.e. Exceptions i. Calculation of T-subs 1. No consideration furnished test. herself. (it’s fictional because SS gets title to all as joint T with survivorship rights. Gifts less than 13k or made over 1 year iv. VIII. Rule: full value of the T-sub is included in the elective share estate 2. within limits prescribed by the donor.ii. but NY takes half into the probate estate for calculated the share) iii. Irrevocable transfers made over a year of death D. Pre-marriage irrevocable transfers v. Survivorship accounts between T and SS AFTER marriage a) NY fictional test1/2 of the account is in the estate. Intestate 1. the persons who shall take the donor’s property and the manner in which they take (4) Takers in default: persons who take if the donee fails to correctly exercise the power Characteristic: (1) General Power of appointment: donee can appoint to almost a/o. Survivorship accounts CREATED BEFORE marriage with SS a) now apply the consideration furnished test BUT ONLY up to ½ the account E. creditors. if 1/3 of the augmented estate is greater than the probate estate (which does not including T-subs). POWER OF APPOINTMENT A. Note: she will only want elective share if there are substantial assets in T-subs. or her estate. Definitions: (1) Donor: creator of the appointment (2) Donee: person who’s given the power to use (3) Power of appointment: an authority created in (or reserved) by a donee enabling the donee to designate. Just like owning the property herself 208 | P a g e . Survivorship estates involving third party AFTER marriage a) Consideration furnished test: SS has the burden of proving how much the decedent contributed and that amount goes into the net probate estate ii.

Donee’s creditors can reach the property ii. Is the power itself valid? 3. Suspension rule and Statutory Spendthrift rule apply to Powers of Appointment B. SUSPENSION AND POWER OF APPOINTMENT WTF!!!!!! Rap and Suspension Rule Checklist (4/6/10) 1) identify the interest 2) Determine whether the measuring from date of creation or date of exercise 3) Determine the “Second Look Doctrine” applies 4) give the RAP rule 5) find the LIB and run with it 6) most likely. apply the NY reform statute 7) give the suspension rule 8) Look to see if there is an income interest in an unborn beneficiary and state the income interest is void or 9) Go further by giving the statutory spend thrift rule and the income interest will be void (might be saved with NY reform statute) 10)Don’t forget the remainder interest A. RAP. Is the interest created by the power valid? C. Exclusive: if it may be exercised in favor of some and not others. Identify the type of POAp 2. Nonexclusive: in favor of all the appointees. General Power of Appointment i.(2) Special Power of appointment: (limited power of appointment) donee cant appoint to herself (3) Presently exercisable Power of Appointment: donee can exercise during lifetime (4) Testamentary Power of Appointment: only by will B. Some rules: 209 | P a g e . Donee’s creditors cannot reach the property ii. Rules 1. Approach: 1. Presumed exclusive iii. Special Power of Appointment i. RAP. Failure to exercise the power then passes to donee’s heirs or residuary legatees 2.

.are measured from the date the instrument was created for (1) special POAp and (2) general testamentary POAp 2. Rule: a special or general POAp must be certain to be exercised within LIB + 21yrs.g. does it violate RAP? a. by reform statute? b. Powers to appoint: remainders interest. Spendthrift rule violated the suspension? b. Approach: i. Step 2: is the power itself valid? 1. Rule of thumb: (1) income interest built on prior income interest 2nd usually void b. Does it violate suspension rule? a. Rule to be valid………. Even if invalid can it be saved? a. Also apply the NY reform statute that lowers the age to 21 2. step 2: id the power valid: 1.g. Step 3: are the interest themselves valid? 1. iii. special testamentary POAp) ii. Identify the type of power (e. “second look doctrine” 3. Powers to Appoint: Income interest approach: i. 210 | P a g e . …. If cant be saved then part that is bad is terminated and accelerate to the remainders. Rule: measured from date of the instrument excersising the power NOT the creation 2. Special NY rule “fill in the blanks” rule: we treat donee as donor’s agent 3. rule: the geral presently exercisable POAp must be certain to be acquired within LIB + 21 iii.if 2nd built on a condition of reaching a certain age usually void but saved by reform statute 4. Rule of thumb: income interest built on prior income interest2nd usually invalid 3. step 3: are the interest created by the power valid? 1. general presently power…) note: general presently exercisable POAp are different than special… ii.1. Step 1: identify the type of power: (e. “second look/ Wait and see” doctrine: wait to see and we fill in the blanks looking at the facts in existence at the time the donee exercises the future 4..

Premarital agreement. Freely made.(constitutional) : sue for wrongful death of parent. 2. Exception: consideration for sex. signed) 2. Not unconscionable at time of divorce (e. 1. Creation: (remember this is a k) 1. Must be expressed. PRE-MARRIAGE A. (2)child. Children 1. 1. Standing: (1)mother. Testable area: create prenuptial. concealment of assets) iii. NY now recognizes k’s between cohabitants 2. “Nonmarital marriage”) ii. (e. What is the status of unborn children and children born out-of wedlock. Determining parenthood. B. (term went from bastard to illegitimate child now. Formation i. Fair and reasonable 4. Terminology: a/f/a prenuptial agreements.g. afa antnuptial agreement now: premarital agreement ii. Nonmarital child i. inheritance. There must be consideration for s/t others than sex. leave C.NY13 DOMESTIC RELATIONS Before Marriage A. NY will not create a presumed k between cohabitants. (real k defenses: Any form of duress is grounds for non-enforcement ) 3. …. Contract between Co-habitats 1. (3) state of NY c. SOF (writing. Filiation proceeding (other states: parental proceeding) a. Filing a/t before 21 birthday 211 | P a g e . Rights: today almost every right as child born of marriage. In ___ court b. valid: in consideration for effort and labors of taking care of house will pay 100k for 3 years) 3.g.

Defendants claim of mothers acts of sexual acts with other men must be corroborated iv. Specific Types of Matrimonial Actions  Jurisdiction: Supreme Court  Void v voidable a) Void = marriage never existed. 3)exchange promises. 3) duress. Don’t need any court approval and anyone can move for the declaration 1. b) Does not recognize common law marriage. 6) imprisonment 4 Proceeding: 1) Declaration of nullity. 4) divorce. Paternity by estoppel a man who has erroneously acted as child father and child relied to his detriment the father can be estopped if child relied to his detriment. reason is child is a contract need to be 2. Grounds: (i) bigamy. Clear and convincing evidence ii. Solemn declaration that you are taking on status of husband and wife. 2) incapacity. No special words required. 3) separation. exception: if married as a common law in a common law marriage state then recognized in NY c) NY now recognizes same-sex marriages B. Mother’s acts of sexual acts need not be corroborated iii.d. civil officer administered to admission oath. 212 | P a g e . 2) witness (other than the officiant) (stupid fact: the best man and maid of honor stem from the old custom requiring witnesses from each family). Marriage 1. State certifies. 2) annulment. Grounds: 1) age. B. 5) fraud. (ii) incest b) Voidable = marriage exist until judge grants annulment 1. MARRIAGE: UNDERGOING AND ALTERING A. 3. ship captain). Evidentiary points: i. Requirement a) Ceremony: 3 requirements: 1) officiant (member of clergy. DNA (ordered on request of any party) if excludes the defendant conclusive evidence. If 95% chance that he’s the father the burden falls on father.

lineal relatives one up/down (uncle-niece. (Waivable) a. 4. Must be brought within 3 years from Π’s discovery b. Duress: forced to marry. No sol 3. Waivable: if continue to live as spouse and cohabit. i. Grounds for annulment: 1. e. descendants. Incest: ancestors. Sol: 5 years. Mental incapacity at time of the marriage. Annulment: voidable marriage needs judge to grant termination of marriage. Fraud: involve a failure to disclose of misrepresentation of something vital to the marital marriage. it’s only a “declaration”). No jury trial 5. Waivable by cohabitating. property social status is NOT vital to marriage and NOT grounds for annulment.” one party too young. Declaration of nullity: for void marriages. when one party in the marriage lacked capacity to marriage and the lack of capacity rendered the marriage void. Under 14: never 2. Discretion of the court. ii. d. a. (2) may need collateral issues resolved by the judge (property distribution) 2. Don’t need the proceeding but will do it for (1) notation in the record. 5 years of incurable mental illness a. Only blood: Doesn’t apply if adopted/step. Bigamy (you must be single to marry) b. Since void = no marriage so only need it. Ages: 18: alone. 16: with consent by both parents. Lying about procreation or sex = material. Incurring physical condition that prevents from safe and normal intercourse. Concealment of money. (i) Developmental disability (ii) mental incapacity.1. Procedure by guardian. 14-16: consent and judge. i. Waivable: if cohabitation after becoming lucid/recovering from mental incapacity. “nonage. siblings(whole or half). Note: also a crime 2. auntnephew). 3. Procedure: 3 appointed court appointed physicians b. Grounds to void: a. Lying about religion =material c. Unable to have children and keep that a secret. Legal separation 213 | P a g e .

Must last at least a full year 3. Adultery (same as separation) 4. Conversion divorce: 2 step process. no jury. Facts specific. iii. (ii) without consent of other spouse. Proof must come from a third party witness. religious reasons. degrading. 3 years of consecutive imprisonment during marriage 5. Divorce i. ii.i. not necessary the structure. Failure to support 4. e. Cruelty (same as separation) 2. The underlying separation can either be (i) 214 | P a g e . 4. (iii) SOL: 5 years from discovery. Procedure: judge only. Grounds (6): 1. (ii) recrimination: Π also had misconduct. (both physical and mental) must endanger the spouse and render cohabitation unsafe or improper. 5 Grounds: 1. Abandonment: elements: (i) voluntary leaves marriage. 3 years of imprisonment (same as separation) 5. silent treatment. NY just adopted no fault divorce ii. Court Leaves the marriage intact but permits separation with abandonment. i. (iv)no intent to return(circumstantial evidence). (Mental is broad. Abandonment: a. Cruel and inhuman treatment. one event probably not enough. health insurance. Physical is domestic violence (one event is enough). 3. Mental is practice over period of time. Abandons the marriage. (iv) connivance: similar to entrapment.g. defenses: (i) condonation: voluntary cohabit with knowledge of the offense. Can be permenant of term. the couple first separates and then convert the separation into a divorce. one case no hygiene) 2. spouse lures the spouse to enter in the offense. not just the spouse. Why do it? Tax. (iii) unjustified. stops being physically intimate or refusal to be financially responsible. Adultery: act of sex or deviant sex voluntary performed who is not spouse during the marriage. You can have a constructive abandonment. ii.

i.  Other action 1. signed and acknowledged (notarized). Requirements: i. termination. then must file with court. 6. If you rescind the agreement then ends. such as cohabitation with intent to reconcile or rescind in writing. in writing. b) Calculation: There are 19 factors that the court relies on court may use any other factors that it determines to be just and proper. ECONOMIC ISSUES A. Publish request that spouse return in English language iii. Claim requires that spouse has been missing without tiding for at least 5 years ii. Diligent search ii. 2. Irretrievable breakdown a. Dissolution for Absence i.litigated separation lawsuit or (ii) mutual agreement of the parties called separation agreement and live separately for a year. Automatic Orders i. and 215 | P a g e . Must live in NY for one year or NY was matrimonial domicile  Procedural Note: 1. Must take an oath. Post-Judgment Maintenance a) Showing a need of the applicant. Maintenance (other states alimony) 1. Will not be entered until all collateral issues have been resolved or agreement. not clear if you need a trial or if you can contest. (iii) incur unreasonable C. b. a) Calculation: there is a calculation and yields a presumptive award. Claim that spouse has vanished. (you can’t really get them wrong since you can add others) c) Modification. Temporary maintenance: maintenance for the spouse during the proceedings. Separation agreements: freely made. (ii) disclose financials. As soon as the complaint is filed an order is automatically filed that (i) dispose or encumber property.

the judge will give other assets and let the JD keep the degree) b. Take away driver’s license iv. ) a) Separate property (5 things) 1. Anything acquired during the marriage 3. Valuation: the amount earned over the life of the degree discounted to present value (when it comes to divide. Avoid double counting. assume most appreciation are from participation if any work is involved.d) Arrears: past due. Contempt of court A. pensions. Distribution 2. marital. Any asset owned my spouse prior to the marriage 2. Wage reduction order: require employer to send wages directly iii. stock rights acquired during marriage. Appreciation in value or in exchange of separate property a. may request a modification or annulment for good cause before judgment. e) Termination: terminates by (1) k in separation agreement. But once the past payments become due they cannot be modified. Steps: 1) classify. Stocks… will be separate appreciation b) Marital property 1. inheritance after marriage in S’s sole name (from nonspouse) 3. Bequeath. 4. staying at home = active participation c. Unless the appreciation is due from active participation during the marriage b. 2) divide. assets presumed marital 2. (2) terminates at death (unless by k). gift. you can’t take the appreciation of the degree and take as maintenance 5. Division 216 | P a g e . (3) recipient remarries or cohabits f) Enforcement: ii. 4. Vested intangibles: e. Agreement that spouses agreement to treat as separate 5.g. NY uses Equitable distribution 3. Value of professional license or degree a. Categories (one of 3) (separate. Compensation from personal injuries 4. they become debts.

Mental or developmental impairment v. Custody 1. Procedures: a) Can sever a tie to parents 2. Almost any adult: single. Permanent neglect: child already removed from the home. D. (iii) b. all assets are titled in one spouse’s name court can order one spouse to simply right a lump sum check. Non-married child. Exception: the fault is (i) egregious. Termination of parental rights. Consent is NOT necessary if: lost custody…. and parent has failed to maintain sufficient contact or planning. d) Take consideration of religious beliefs for placements e) Will place in family first 1. Marital child: consent from both parents 2. unmarried cohabitants. Abandonment: 6 months ii.g. after equitable distribution court can appoint a percentage. loss of health insurance ii. Adoption a) Who may adopt i. a) Judicial termination Grounds: i. Child support 217 | P a g e . marital home: need of parent to stay in home to take care of children c. Killing a sibling 3. (ii) shocks the court. Abuse iv. PROVISIONS FOR CHILDREN A. father may not block adoption he may first be willing to take custody before his consent is needed 3. loss of inheritance rights iii..a) b) Separate property is kept separate Marital property is divided by discretion of court equitably a. Considerations: i. split up assets or distributive award d. iii. Not supposed to take marital fault as part of distribution. distributive award: e. b) Anyone may be adopted: c) Consenting persons: 1.

1. Child support orders: 1.4. Such as: 1) process of contacting indigent parent.1.2.6.1.2. Look at health of all parties considered.1. Child Custody 2. Not necessarily in the richer parent. Parent have obligation to support through 21.2.2.1. Cases: after divorce or Nonmarital child after a filiation proceeding 1. Court will probably only get involved if there is a noncustodial parent 1. Parent have new companion. History of domestic violence 2.1. 1.1. Must receive court permission before relocation 2. Must balance: parents have right a DP to raise their children as they see fit but judge can’t bar grandparents. Educational and financial status of both parents.1. No duty to send to college but If child has the ability to go to the college then obligation to support through college if imposed by court looking at financial ability and standard of living.1. Civil contempt proceeding: holding not necessarily DP constitutionally entitled to counsel if there are substantive safeguards in place for indingent pro se parent.5.1.1.3.1.1.1.3. Entitled to ask for modification of (a) last order over 3 years ago. Interference is grounds for contempt of court 2.1. (b) parents income changed up/down.2.5.but parent’s wishes will probably will 2.1.1.1. If joint custody do they have a cooperative relationship and live near each other. Δ. (physical and mental) 2.3.5.3.2. 2. but a consideration to support 2.2. 2) 2. Any criminal activity 2. Enforcements: 1.1.7.2.1. Same as maintenance 1. 1.3.1. Keeping siblings together 2.3. Grandparents must show substantial ….2. Visitation: entitled to a natural right of regular visitation 2.5. Factors: 2. Last continuously until court granted modification 1.1. Best interest of the child standard (BIC) 2. Must show BIC 218 | P a g e . look at the new companion’s character 2.4. 1.3. Non-contingent on payment of child support 2.1. may petition for visitation.1.1.1. Relocation: after custodial parent gets custody 2.4.4.1.2.3.1. Grandparents: 2.

NY will only recognize if really domiciliary of that state b) Comity: foreign country divorce will be recognized in divorce i) Ex parte foreign divorces are invalid 3) Child support order a) Uniform Interstate Family Support Act: Once a support order was granted in a state. This applies 4) Child custody a) Home state. 219 | P a g e .E. (home state= live there at least 6 months) once the home state enters an order that court has exclusive jurisdiction b) Felony to remove a child from the state of NY in violation of a court order. that state has exclusive and continuous jurisdiction so long as parent and one child remains in that in that state. FULL FAITH AND CREDITS 1) Marriage a) Other state marriage i) NY will recognize unless bigamous b) Foreign 2) Divorce a) NY will recognize out-of state divorce i) Has res judicata effect ii) Ex parte If only one spouse petitioned and granted divorce.

Note: distinguish PJ which the minimum contacts test. Rule: Need diversity off Π and ALL Δ’S . if one Δ of multiple Δ is cocitizen and ii. PERSONAL JURISDICTION B. Diversity and Alienage: requirements: 1. Can have 2 citizenships. citizens of different states or b. Requirements i. PJ = power of the parties B. need at least one US citizen c. citizen of a state and alien (non-US citizen) ii.FEDERAL JURISDICTION Overview:  Will almost always be tested with a another area I. Two foreign aliens may not sue in federal court under b. Diversity 2. Must have at least one citizen a. Federal question B. The state or country where incorporated AND b. Amount in controversy 75k 2. Fed courts may only hear 2 cases: 1. alienage/diversity. Unincorporated i. How is it determined? Same as as PJ in NY state court A. Corporations i. US citizen domiciled out of country may NOT iii. Diversity Between a. JURISDICTION A. For Natural Persons: i. All places of ALL THE MEBERS are citizens 220 | P a g e . The state or country of its principle place of business (PPB) c. For SubJ only 2 places for diversity purposes 4. both: a. Domicile = 1) physical presence and 2) intent to remain 3. SUBJECT MATTER JURISDICTION Power of over the case A.

ONCE THE CLAIM IS IN FEDERAL COURT CAN YOU ASSERT ADDITIONAL CLAIMS? A. would it be federal. Minors i. C. get case in fed court on diversity. Well-pleaded rule: does complaint well-pleaded. Once the claim is already in federal court then can move for supplemental jurisdiction to add other claims that do not have subject matter Ju. If the federal law ii. Limitations 1. Amount in controversy 1. Test: i. Can’t be used by Π in a diversity case to overcome lack of diversity i. w/o extraneous material. ii.000. E. Rule: one Π v one Δ: you can join separate and unrelated claims to reach the 75.01. C. Aggregation i. P(NY) v D1 (CA) an D2 (NY). 221 | P a g e . The minors place of citizenship.01 meaning 75k is not enough you need over 75k. Rule: 1. Determining federal question: i. Will always be met if same transaction or occurrence B. The Complaint must show an interest founded substantially on federal law i. 2. not the place of guardian of executor. then add D2 as supplemental. Multiple defendant: no aggregation iii.5. Rule: the claim must arise under federal law. P cant sue D1. Joint tortfeasors: then aggregation 4. Equitable case i. Only the claim not the cost of litigation 2. SUPPLEMENTAL JURISDICTION Important rule: every claim must have Subject Matter Jurisdiction. just stating P’s claim. Must be at least $75.g. Citizen of parties irrelevant ii. same transaction…. is the P enforcing a federal right a. 3. Immaterial the amount in controversy 2. If it D. Federal Question 1.000. must be share “common nucleus of operative facts” with the claim that has SubMJu ii.

Rule: 1. Only one way from state to federal 1. ASSERTED BY PLAINTIFF b. The federal court which embraces the state court D. Timing: 30 days after service of the first paper that make the case removable i. Who can remove: i. Π can NEVER remove ii. then use the federal rule. E. And is against a CITIZEN OF the SAME STATE AS Π D. Why use fed law: supremacy claue of constitution ii. non-diversity claim can be hears in federal court if it meets the “STAO” test UNLESS: a. A case that could have been brought originally in FC under (diversity or FQ) 2. And in a diviersity case c. i. Step one: (easy Erie) if there a federal law on point that that directly contradicts state law. ALL defendant’s served with process must join iii. No removal after one year of filing C.g. Federal court in diversity case the federal court must apply state substantive law B. Fed law on point: FRCP orFRE 222 | P a g e . Place of removal 1. Procedures E. Summary of the rule: a non-federal. (can’t use supplemental jurisdiction to get into fed court thrugh back door) iii. Only Δ. Grounds for removal 1. the time resets and now 3o days from serving Δ2. NO removal if any Δ is citizen of the state court that the case was filed a. If the Π now adds another Δ2. Easy approach 1.ii. 2 Exception: ONLY IN DIVERSITY CASES: i. ERIE DOCTRINE A. as long as valid. B. From service NOT from filing 2. Π may use supplemental to get around amount in controversy 2. REMOVAL A. P(NY) sues D1 (CO) and D2 (FL) in Florida state court  cant remove to federal court since the case filed in D2 state of FL ii.

Rule venue is proper: 1. Residents of Δ 1. 2. If transfer you apply the state law of original court that filed 3. Tolling ruls of SOL d. Methods under the FRCP 223 | P a g e . The law of the state which the service is effective. Conflicts of law 3. Avoid forum shopping II. May also transfer for convienance of the parties i. Outcome determinative? iii. Note: never tested hard Erie ii. Weigh public and privare factors ii. Place where there is PJ over the Δ 2. Methods of service: i. Elements of a claim of defense b. VENUE Venue is once in federal court which district is proper A. Corporations same as PJ 2. Transfer of Venue 1. Permitted by FRCP ii. Balance of interest iv. Where substantial part of the claim arose.domicile C. SERVICE OF PROCESS A. Step two: (easy Erie) if no Federal Law on point: is it an easy one? i. Servers: Any person over 18 that is not the party 2. 3.iii. Mechanics: 1. Person. General rule: 1. List of easy ones: a. B. Interest of justice III. Federal rule valid? If arguable procedural (presumption all FRCP are valid) 2. Method under the State court which it sits iii. Step three (hard as bitch Erie) 3 part test: i. SOL c. Process: refers to summons and complaint. A district where ALL defendants reside or 2. Timing: within 120 days of filing B.

Counter claim (made by Δ against Π in answer) 1. Waive: Π may send in waiver of service docs. Same transaction or occurrence AND b. JOINDER OF PARTIES A. Compulsory (if you don’t use it you lose it) i. Cross claim (made against a co-party) 1. Permissive: a separate claim that does not arise out same transaction or occurrence 3.01k Δ can counter claim in FC even if counter claim less the 75k. Who must be joined?  Necessary parties i. If waiver Π filed. cannot accord complete relief… b. Authorized agent 4. IV. Same transaction of occurrence “T/O” test 224 | P a g e . Balancing test ii. If Δ does not waive then Δ may be liable for cost of process. Subject matter jurisdiction: you need either submj of supj to get int 3. Absentee claims an interest which subjects a party to possibility of multiple obligations ii. B. still need subMJ and SupJ i.i. If necessary court may order joinder if: a. Proper parties: who may be joined: determined by a. Parties 1. Raise at least one common question 2. Substitute service= may serve on the place the Δ usually abodes AND to a person who lives there iii. NOTE: this is the ONLY compulsory 2. Joint tortfeasors are never necessary 4. Third step: wither join or dismiss i. absentee’s interest will harmed if doesn’t join c. Rule: if Δ has a claim against Π that arises out of the same transaction or occurrence Δ must raise the claim in his answer if Δ does not he can NEVER bring the claim again ii. If court dismisses then absentee is called an “indispensable party” Claims by Defendant A. Personal= anywhere the Π is located ii. Next step: can necessary parties be joined: you need PJ and cant mess up diversity 5. w/o absentee. Note: if Π got in with diversity and 75.

CLASS ACTIONS A. Over $500 c. C. Requirements 1. A claim or defense that has at least one common question 4. Permissive intervention i. Cross claims are NEVER compulsory 3. Typicality: representative claim is typical to the class. must be diverse from every claimant b. Prejudice class action (never been tested on any bar exam) 225 | P a g e . “Statute” interpleader: a. Commonality: common q to class 3. the exclusions don’t apply to Δ. If the Δ may indemnify to a TP ii. Absentee of Right: i. Note almost always supJ. Absentee will be harmed if does not intervene 3. Interpleader 1. May be diverse from one other claimant b. Adequacy: the representative will fairly represent the class B. 2 ways to do invoke the same thing: (rule and statute) i. Impleader (third part practice) 1. Absentee may move to join in. Types of class action (3 types) 1. Venue: any district where any claimant reside. Numirality: too numerous to join 2. service of process: ii. Applies: when one is holding property wants to force all potential claiments into a single case to avoid multiple litigations with different results 2. Defendants can join a Third-Party defendant 2. since cross claim usually Δ. G. 2. Intervention 1. Requirements: i. Timing: 14 days of serving answer D. “Rule” interpleader: (treated like a regular diversity case) a. Note supplemental jurisdiction must be F. Service of process: nation wide d. and 4. MULTIPLE JOINDER SITUATIONS E. at least over 75k c.2.

Try that issue first 3. Diversity i. Peremptory : 3 strikes for no reason: a. D. AND POST TRIAL A.g.g. G. 2. E. Renewed Judgment as a Matter of Law 1. But constitutionally may not be based on race or gender 5. 226 | P a g e . only diversity between the class representative and all Δ ii. Injunction or declaratory judgment (not money) sought because the class members were treated alike.C. They can opt out b. Must demand a jury trial i. Timing: end of all evidence B. E. Standard: same as JMOL. Rep sends out the notice Bound by judgment 1. Jury trial 1. employment discrimination 3. And that a class action Court approval: court must certify the class Notice requirement for Damages Class (3 only) a. Entitled to juries at law NOT 2. F. only in federal court 4. Mass Torts i. Voir dire process i. They will be bound by the judgment if they do not opt out c. In class 3 those that did not opt out after notice Subject matter jurisdiction 1. They can enter a separate agreement ii. The jury facts underlying the law claim but not the equity claim. If both law and equity: i. JUDGMENTS. There are common questions over individual questions b. Federal question –in 2. TRIAL. Note: no Seventh Amendment right in STATE court. The rep must have a claim that exceeds 75k Class Action Fairness Act V. Requirements: a. Damages class action (most testable) must show: e. In 1 and 2 always bound 2. Standard: no reasonable person can disagree ii. Strike for cause: Entitled to unlimited stikes ii. Motion for Judgment as a matter of Law (fka directed verdict) i.

Demand for judgment 2. PLEADINGS A. Respond to allegation of the ii. Granting a new trial is less drastic then granting 3. 6. Statement of subject matter ii. Improper venue 4. Fraud. Must have already moved for a JMOL before the verdict C.2. Lack of PJ 3. Failure to join an indispensable party 3. Insufficient process 5. showing ent iii. Grounds: 4. Jury reached verdict. Short and plain statement of claim. Must at least put other side on notice…. mistake. court enteres verdict. Must move no later that 28 days from judgment 3. Failure to state a claim which relief can be granted 7. 3. Motion for New Trial 1. Answer (a pleading) i.7 can be raised throughout trial 5. If defendant does not plead 2. Defendant timing to respond FRCP RULE 12 1. Notice Pleadings 1. Timing: after jury returns verdict.3. Service of process 6. special damage: require plead facts with specificity 227 | P a g e . Raise affirmative defenses 2.4. Note: less than 28 days from entering VI. Lack of subject matter J 2. Motion (are not pleadings): asking court to make Π… i. will waive it 4. 1 (subject matter) never raised. 7 FRCP 12(b) motions 1. ever B. Recent SC: plead facts supporting a plausible claim 4. Complaint contains i. 2.

try to remember area on the page Passing grade o 70% on the MBE almost guaranteed to pass (you can get as low as 90) o No set o 212-935-0069 home phone number - 228 | P a g e .GENERAL BAR INFO  Crimes: o Memories the middle degree o It “Majority law” not common law Last 2 weeks o Study your notes.