MEE MEMORIZATION

1) CRIM PRO- EVIDENCE

Miranda

 At issue is whether ………… is the type of communication protected by the privilege

against self-incrimination.
 Miranda protections apply only to testimonial or compelled communicative evidence
by a suspect who is in custody and under interrogation.
 To be testimonial, the communication must relate to a factual assertion or disclose
information.
 The obligation for the police to honor the invocation of the Miranda right to counsel
terminates 14 days after the suspect is released from custody. 
 Under the Miranda doctrine, statements from a witness after custody and
interrogation will not be admissible unless there has been a knowing and voluntary
waiver of the Miranda Rights
 Custody can only be established if a reasonable person under similar circumstances
would believe she was in custody.
 Custody is defined the declarant being put into a situation where a reasonable person
would not believe that they are free to leave.
 Interrogation requires questioning with the purpose to elicit facts that will be used in a
trial later on.
 If there is custodial interrogation, the person must be told that they have the right to
remain silent and the right to an attorney.
 However, for both such rights after they have been given, the person must invoke both
rights. If a statement is made in violation of Miranda the exclusionary rule is applied,
whereby the statement cannot be introduced against the defendant.
 However, there are numerous exceptions to the Miranda rule, including the public
safety exceptions. If the police ask a person a question, when that person is subject to
custodial interrogation, but the purpose of that question is to deal with an on-going
emergency, the fact that the person was not given Miranda will not result in an
exclusion of their testimony.
 There is an additional exception to the hearsay rule known as the statement by party
opponent. Under such exception, a statement made by a party to the litigation can be
offered into evidence by the opposing party as exclusion to the hearsay rule.

6th Amendment—Right to Counsel

• Automatically applies at all critical stages of prosecution after formal proceedings begin

• Formal proceedings—indictment or formal charge

Exam Tip: Critical stages include: post-charge in person line-ups and questioning by a
government informant (even if the defendant is not aware).

 Offense specific—does not prevent the police from questioning the defendant about
other crimes that have not been formally charged
 Waiver—must be knowing and voluntary

Line-Ups under the Due Process Clause

• Must not be conducted in a manner that is impermissibly suggestive or provides a substantial

likelihood of misidentification: If the defendant is the only male and the other people in the
lineup are female, this is impermissibly suggestive.

4th Amendment

• Prohibits unreasonable searches and seizures

Government Conduct : Must show some government or police Agency action

o Does not protect against priva teactors

Standing

o Defendant must have a reasonable expectation of privacy as to the places or items that seized

Exam Tip: A typical Crim Pro question will start with a seizure of a person, and then a search
will occur. A good answer will walk through each government action chronologically.

EVIDENCE ------ Always start with

 The issue is whether the …………… is relevant and admissible under a hearsay exception
or as non-hearsay.

As a rule, evidence must be relevant to be admissible, and all relevant evidence is admissible
unless excluded by a specific rule, law, or constitutional provision. 
Evidence is relevant if: (i) it has any tendency to make a fact more or less probable, and (ii) the
fact is of consequence in determining the action.  Here,…… is relevant because it has a tendency
to make ………

The court may exclude relevant evidence if its probative value is substantially outweighed by a
danger of one or more of the following: unfair prejudice, confusing the issues, misleading the
jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

 Hearsay is an out-of-court statement that is offered to prove the truth of the matter
asserted.  Hearsay evidence is generally inadmissible unless it falls within an
exception or exclusion.

……………explain why this statement in the case is a hear say statement

Here, …………….. is hearsay because it is an assertion made outside of court and is being used to
prove the truth of the matter asserted

Thus, the witness’s statement is inadmissible hearsay unless it falls within an exception.

Under the ……….. exception, a statement…………………………………….. is not excluded as hearsay

Alternatively, statements offered to prove something other than the truth of the matter
asserted are not hearsay.  A statement offered to show the effect on the person who heard it
or to show the person’s state of mind is not hearsay

The Confrontation Clause

 requires that, to admit a testimonial hearsay statement against a criminal defendant
the declarant must be unavailable,
 and the defendant must have had a prior opportunity to cross-examine the declarant.
  In determining whether a statement is testimonial, an objective analysis of the
circumstances, rather than the subjective purpose of the participants, is key. 
 A statement that has the primary purpose of ascertaining past criminal conduct is
testimonial while a statement with the primary purpose of enabling police to provide
assistance to meet an ongoing emergency is not testimonial.

CAUSATION (requirement for torts and criminal law) *******

D’s conduct must be both the cause in fact and the proximate cause of the crime
committed.
• 1. Cause in fact : but-for D’s conduct, the result would not have occurred
• 2. Proximate cause: the actual result is the natural and probable consequence
of D’s conduct, even if did not occur exactly as expected.

To commit a crime it is required to have

1) Actus Reus (Act or failure to act)
perform a voluntarily, physical act, body movement or failure to act (failure to act
standards are same with the duty in torts)
2) Mens rea (mental element) (specific or general intent or malice)
– no mens rea required for strict liability
Purpose: they meant to do it.
Knowing: they had knowledge of what actions they were doing.
Reckless: they were aware of the risks and ignored them.
Negligence: they SHOULD have been aware of the risks and ignored them.

Malice crimes require the defendant to act with disregard for a substantial and
unjustifiable risk. - MEMORIZE

2- CORPORATIONS

 In order to form a corporation, articles of incorporation must be filed with the state.
The articles must include certain basic information, including the number of shares the
corporation is authorized to issue. Unless a delayed date is specified in the articles, the
corporate existence begins when the articles are filed.

 When all of the statutory requirements for incorporation have been satisfied, a de jure
corporation is created.
  Consequently, the corporation, rather than persons associated with the corporation, is
liable for activities undertaken by the corporation.

 However, when a corporation has not been created, the entity may be treated as a
general partnership.

 A partnership is an association of two or more persons to carry on a for-profit

business as co-owners. In a general partnership, each partner is jointly and severally
liable for all partnership obligations.

 When a person makes an unsuccessful effort to comply with the incorporation

requirements, that person may be able to escape personal liability under either the de
facto corporation doctrine or the corporation by estoppel doctrine. Under either
doctrine, the owner must make a good-faith effort to comply with the incorporation
requirements and must operate the business as a corporation without knowing that the
requirements have not been met.

 If the owner has done so, then the business entity is treated as a de facto corporation,
and the owner, as a de facto shareholder, is not personally liable for obligations incurred
in the purported corporation’s name.

 Alternatively, under corporation by estoppel, a person who deals with an entity as if it

were a corporation is estopped from denying its existence and is thereby prevented
from seeking the personal liability of the business owner. This doctrine is limited to
contractual agreements

- BUSINESS JUDGEMENT RULE

Business judgment rule—in the absence of fraud, illegality,or self-dealing, courts will not disturb a good-
faith business decision

The business judgment rule is a rebuttable presumption that a director reasonably believed
that his actions were in the best interests of the corporation.

Duty of care
1. Act with the care that a person in a like position would reasonably believe appropriate
under similar circumstances. Special skills are expected to be used

2. Business judgment rule—in the absence of fraud, illegality, or self-dealing, courts will
not disturb a good-faith business decision

3. A director or officer is entitled to rely on the expertise of officers and other employees,
outside experts, and committees

Duty of loyalty

1. May not receive an unfair benefit to the detriment of the corporation without effective
disclosure and ratification

2. Self-dealing transactions—in which the director, officer, or their relative receives a

substantial benefit directly from the corporation (e.g. salary)

3. Corporate opportunity doctrine—usurping or stealing

A self-interested transaction may be upheld if it is disclosed and ratified by a majority of
disinterested shareholders or directors (shifts the burden)

4. If the director/officer can demonstrate that the transaction was fair, then they will
win

Veil piercing
a. Shareholders are not personally liable for the debts of a corporation but only
liable for the amount invested in a corporation, except a court may “pierce the
veil” of limited liability to avoid fraud or unfairness
b. Three factors
i. (1) Alter ego—the investor or shareholder has failed to observe any
corporate formalities between the person and the corporation (treated
the company just like itself);
ii. (2) Undercapitalization—failure to maintain funds sufficient to cover
foreseeable liabilities;
iii. (3) Fraud—the parties engaged in fraud or fraud-like behavior
c. Courts more likely to pierce the veil in
 i. Tort, rather than contact cases

Suits etc, themis mee cok iyi

 A shareholder may bring a direct or a derivative action against the corporation in which
the shareholder owns stock. 

 In a direct action, the shareholder is vindicating his own rights and is not required to
make a demand on the board of directors before proceeding with the litigation. 

 By contrast, in a derivative action, a shareholder brings suit on behalf of the

corporation and is typically based on a breach of fiduciary duties by the board of
directors. 

 To bring a derivative action, the shareholder must have standing and must make a
written demand upon the board of directors.   To have standing, the shareholder must
have been a shareholder at the time of the wrong and at the time the action was filed,
and continue to be a shareholder throughout the litigation. 

 The shareholder is required to make a written demand upon the board of directors
unless the demand would be futile.  Not all jurisdictions recognize the futility exception,
however.  In states that do not recognize the futility exception, demand must be made
upon the board in all cases.

Improper dissolution

When members agree to voluntarily dissolve an entity, the entity must wind up its affairs and
liquidate its business. Only after the entity’s debts and obligations to creditors have been
paid may the members receive a portion of the liquidated value of the LLC. Those responsible
for winding up can be liable for improper distributions.

 Shareholders have the power to amend a corporation’s bylaws under state law.  A
corporation’s bylaws for the management of the corporation’s business or regulation of
its affairs are enforceable, so long as the bylaws do not conflict with state law or the
articles of incorporation

 The board of directors can also amend the bylaws unless the articles of incorporation or
a vote by the shareholders limits this power. Shareholder-approved bylaws can amend
 or repeal existing bylaw provisions, regardless of whether the bylaw was initially
approved by the shareholders or the board of directors. However, a shareholder-
approved bylaw dealing with director nominations may not limit the board’s power to
amend, add, or repeal to ensure an orderly process. Thus, if shareholders approve a
bylaw amendment that limits further board changes, the board could only amend or
add to the bylaw to safeguard the voting process; it could not repeal the shareholder-
approved bylaw.

If a parent corporation causes its subsidiary to participate in a business transaction that prefers
the parent at the expense of the subsidiary, it can involve self-dealing and a breach of loyalty.  A
parent corporation that engages in a conflict-of-interest transaction with its own corporation,
also known as “self-dealing,” has violated the duty of loyalty unless the transaction is protected
under the safe-harbor rule.

The business judgment rule does not apply in a conflict-of-interest transaction.  

There are three safe harbors by which a conflict-of-interest transaction may enjoy protection:
(i) disclosure of all material facts to, and approval by a majority of, the board of directors
without a conflicting interest;
(ii) disclosure of all material facts to, and approval by a majority of, the votes entitled to be
cast by the shareholders without a conflicting interest; and
(iii) fairness of the transaction to the corporation at the time of commencement. 
The fairness test looks at the substance and procedure of the transaction.

With regard to a parent corporation engaged in self-dealing, the main concern under the
fairness test is whether the benefit is comparable to what might have been obtained in an
arm’s length transaction.  Procedural fairness is generally not at issue unless there has been a
change in control.
CIVIL PROCEDURE

PJ JURISDICTION QUESTION

Always ask 2 questions?

1- Has the basis for exercising pj over an out of state D been authorized by statute or rule
by a court?
2- Is the particular basis for exercising personal jurisdiction permitted by the due process
clause of the US constitution?

• • Due process requires minimum contacts between the D and the forum state
such that is consistent with traditional notions of fair play and subjective justice to sue the
D here.
• • In assessing minimum contacts, court looks for purposeful availment by the
D.
• • Those contacts must be a result of D’s own purposeful actions.

PRECLUSION QUESTION
(claim preclusion and issue preclusion)

Ask two questions in order!!

1) is the claim in the second suit precluded by the prior adjudication? (if yes, inquiry
ends)
2) if not, are there any issues in the second suit precluded by the prior adjudication?

A) Claim Preclusion(Res Judiciata):

1) A final judgement on the merits in the first suit

2) 2nd suit must be in the between the same parties
3) 2nd suit must involve the same claim or cause of action

** a successor in interest steps into the shoes of the original party and is treated for
preclusion purposes, as the same party
Ex: assignor- assignee
Decedent – executor of the estate
Executor- persons who claim under the will

Class action: each member is considered to have had their opportunity in court EVEN if
not a named representative.

B) Issue Preclusion (Collateral Estoppel)

1) same issue of fact must arise in two law suits
2) that issue must have been actually and necessarily decided in the 1 st suit and
3) the party to be precluded must have been a party to the first suit

The Constitution generally protects against wrongful conduct by the government, not
private parties.  A private person’s conduct must constitute state action in order for these
protections to apply.  State action is found when a private person carries on activities that
are traditionally performed exclusively by the state, such as running primary elections or
governing a “company town.”

The First Amendment is applicable to the states through the Fourteenth Amendment and
protects the freedom of speech as well as the freedom not to speak. 

Protected speech can include written, oral, and visual communication, as well as
activities such as picketing and leafleting. 
The government’s ability to regulate speech depends on the forum in which the speech
takes place. 
A traditional public forum is one that is historically associated with expression, such as
sidewalks, streets, and parks.
In a traditional public forum, the government may only regulate speech if the restrictions:
(i) are content-neutral as to both subject matter and viewpoint,
(ii) are narrowly tailored to serve a significant governmental interest, and
(iii) leave open ample alternative channels for communication. 

Additional restrictions, such as an absolute prohibition of a particular type of expression,

will be upheld only if narrowly drawn to accomplish a compelling governmental interest.
Torts

1.Always start with this

A prima facie case for any intentional tort, including those not involving personal injury, must
include proof of an act, intent, and causation. 

2. Whenever there is a negligence question

always Write this:

In a negligence action, a plaintiff must show that the defendant owed a duty to the plaintiff,
that the defendant breached that duty, that the defendant caused the plaintiff’s injuries, and
that damages exist. The plaintiff must establish all four elements of negligence by a
preponderance of the evidence.

In general, a duty of care is owed to all foreseeable persons who may foreseeably be injured by
the defendant’s failure to act as a reasonable person of ordinary prudence under the
circumstances. A breach of duty occurs when the defendant departs from the required
standard of care, such as failure to act as a reasonable person, an unexcused violation of a
statute, or, if there is no direct evidence, through res ipsa loquitur.

3.DUTY

In general, a duty of care is owed to all foreseeable persons who may foreseeably be injured by
the defendant’s failure to act as a reasonable person of ordinary prudence under the
circumstances. Generally, there is no duty to act affirmatively, even if the failure to act appears
to be unreasonable.

1. Foreseeability of Harm
While the foreseeability of harm alone does not create a duty, most courts emphasize the
foreseeability of harm to the plaintiff when evaluating the existence of a duty. The
foreseeability of the type of harm is also relevant to proximate cause. See § IV.E.3. Proximate
Cause (Legal Cause), infra.
2. Foreseeability of the Plaintiff
a. Cardozo (majority) view
The majority rule is that a duty of care is owed to the plaintiff only if she is a member of the
class of persons who might be foreseeably harmed (sometimes called “foreseeable plaintiffs”)
as a result of the defendant’s negligent conduct. According to Judge Cardozo’s majority opinion
in Palsgraf v. Long Island R. R. Co., 162 N.E. 99 (N.Y. 1928), the defendant is liable only to
plaintiffs who are within the zone of foreseeable harm.
b. Andrews (minority) view
The minority view (and the Restatement approach), articulated in Judge Andrews’s minority
opinion in Palsgraf, states that if the defendant can foresee harm to anyone as a result of his
negligence, then a duty is owed to everyone (foreseeable or not) harmed as a result of his
breach. The issue of whether the plaintiff is foreseeable is reserved for proximate cause. See §
IV.E.3. Proximate Cause, infra. Restatement (Third) of Torts: Liability for Physical and Emotional
Harm §29 cmt. n (2010).

4. Res Ipsa Loquitur

Under the doctrine of res ipsa loquitur, the trier of fact may infer the existence of the
defendant’s negligent conduct in the absence of direct evidence of such negligence. Res ipsa
is circumstantial evidence of negligence that does not change the standard of care.
EXAM NOTE: Res ipsa loquitur does not apply if there is direct evidence of the cause of the
injury.
a. Traditional requirements
Under the traditional standard for res ipsa loquitur, still used in many jurisdictions, the plaintiff
must prove that:
i) The accident was of a kind that ordinarily does not occur in the absence of negligence;
ii) It was caused by an agent or instrumentality within the exclusive control of the defendant;
and
iii) It was not due to any action on the part of the plaintiff.
In establishing that the accident was of a kind that ordinarily does not occur in the absence of
negligence, the plaintiff need not conclusively exclude all other possible explanations. It is
enough that the facts proved reasonably permit the conclusion that negligence is the more
probable explanation. Restatement (Second) of Torts § 328D.
b. Modern trends
Even under the traditional requirements, courts often generously interpret the “exclusive
control” requirement.
Example: The defendant hires an independent contractor to clean and maintain his store
premises. The plaintiff is injured when she slips on a floor negligently left wet by an
independent contractor. Courts will find that the duty to maintain the premises open to the
public is a non-delegable duty, such that the defendant continued to be in “exclusive control.”
Therefore, res ipsa loquitur can be used to find that the defendant breached a duty of
reasonable care.
1) Medical malpractice
In medical malpractice cases when several physicians, nurses, and other medical personnel
have access to the plaintiff during surgery, a small number of jurisdictions apply res ipsa
loquitur, finding that each defendant has breached a duty of care unless he can exonerate
himself. In the absence of such exonerating evidence, the courts hold all defendants jointly and
severally liable. See, e.g., Ybarra v. Spangard, 25 Cal. 2d 486 (1944).

CONTRACTS

 The Parole Evidence Rule (“PER”) prevents the introduction of prior extrinsic evidence
that contradicts the terms of the written contract. In order for the PER to apply, there
must be a determination as to whether the parties’ writing is “integrated,” meaning that
the parties intended it to be their final agreement.

If the writing completely expresses all of the terms of the parties’ agreement, then it is a
total integration, and the parties cannot introduce any extrinsic evidence (oral or
written) of prior or contemporaneous understandings or negotiations. On the other
hand, if the writing sets forth the parties’ agreement about some terms, but not all
terms, then it is a partial integration.

The parties are then permitted to introduce supplementary extrinsic evidence of other
terms as long as the evidence is consistent with the writing. Under the common law, a
court was permitted to look only to the writing itself (within the “four corners” of the
document) for evidence of intent. If the written contract appeared to be detailed, then
a court would likely conclude that it was totally integrated. A merger clause is strong
evidence of complete integration.

WILLS

 At common law, the validity of a will is determined under the law of the state where the
testator was domiciled at the time of his death.
  Under common law, if a beneficiary died before the testator, the gift failed and went to
the residue unless the will provided for an alternate disposition. Almost all states have
enacted anti-lapse statutes providing for alternate disposition of lapsed bequests.
Under most statutes, if the gift was made to a relation of the testator within a specific
statutory degree, and the relation predeceased the testator but left issue, then the issue
succeeds to the gift, unless the will expressly states the contrary.

 An omitted child statute does not apply if: (i) it appears that the omission of the child
was intentional; (ii) the testator had other children at the time the will was executed
and left substantially all of his estate to the other parent of the pretermitted child; or
(iii) the testator provided for the child outside of the will and intended this to be in lieu
of a provision in the will.

Revocation:
 A will may be revoked wholly or partially in three ways: by subsequent writings, by
physical destruction of the will, or by operation of law. Physical destruction may take
the form of burning any portion of the will or canceling, tearing, obliterating, or
destroying a material portion of the will with the intent to revoke it. Both the act and a
simultaneous intent to revoke must be proven to yield a valid revocation

PARTNERSHIP

Always start with:

 A general partnership is an association of two or more persons to carry on a for-profit
business as co-owners.
 It is not necessary that such persons have the specific intent to form a partnership. The
only agreement necessary to create a partnership is the agreement to conduct a for-
profit business as co-owners. This agreement may even be implied by the conduct of
the parties when they have not entered into a written or oral agreement.

A partner’s authority
 A partner is an agent of the partnership for its business purposes, and the scope of a
partner’s authority is governed by the principles of agency law.
If the partnership agreement is silent on the scope of the agent-partner’s authority, a
partner has the actual authority to commit the partnership to usual and customary
matters, unless the partner has reason to know that other partners might disagree.
 On the other hand, each partner has equal rights in the management and conduct of
the partnership’s business. If there is a decision as to a matter outside the ordinary
course of the partnership’s business, the decision requires the consent of all partners.

Dissociation
 A partner’s notice to the partnership of the partner’s express will to withdraw can
trigger a partner’s dissociation from the partnership. A partner has the power to
dissociate from the partnership at any time, even if the dissociation is wrongful. The
notice of the partner’s wish to withdraw can be, but is not required to be, in writing.
However, if there is a formal partnership agreement, it may provide that any notice of
withdrawal be in writing. When the partnership is at will and the dissociation breaches
no express provision in the partnership agreement, the dissociation is rightful, and the
dissociating partner has no obligation to the other partners.

 When a partnership is not dissolved, the dissociating partner is entitled to have her
interest purchased for a buyout price equal to that partner’s interest in the value of the
partnership. If the withdrawing partner makes a written demand for payment, the
partnership must pay in cash the amount it estimates to be the buyout price, including
accrued interest, within 120 days of the written demand.