Actual Authority
Created by principal's manifestations TO THE AGENT. Express (stated directly) or implied (reasonably necessary to carry out express authority, or customary in the role).
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Agent's Authority to Bind Principal
Apparent Authority
Created by principal's manifestations TO THE THIRD PARTY. Third party reasonably believes agent is authorized. Principal bound even if no actual authority exists.
Partner's Authority and Partnership Liability
Partner as Agent
Each partner is an agent of the partnership, and an act in the ordinary course of partnership business binds the partnership, unless the partner had no authority and the third party knew or had notice.
Joint and Several Liability
All partners are jointly and severally liable for partnership obligations, so a creditor may sue any one partner for the entire partnership debt.
Director's Duty of Loyalty / Self-Dealing
Duty of Loyalty
A director owes the corporation a duty of loyalty, requiring good-faith action in the corporation's best interests, which is implicated whenever the director has a conflicting personal interest in a transaction.
Safe Harbor for Conflicting Interest Transactions
A conflicting interest transaction is not voidable if the director fully discloses the material facts and interest, and a majority of disinterested directors approves the transaction.
Member's Fiduciary Duty of Loyalty
Duty of Loyalty
In a member-managed LLC, each member owes the LLC a duty of loyalty, including refraining from self-dealing, competing with the LLC, and usurping LLC opportunities.
LLC Opportunity Doctrine
A member may not take a business opportunity that is (1) in the LLC's line of business, (2) of interest/advantage to the LLC, (3) the LLC could pursue. Must first offer to the LLC.
Piercing the LLC Veil
Piercing the Veil Standard
Courts disregard the entity when member (1) used it as alter ego (commingling, undercapitalization, ignoring formalities), AND (2) maintaining the fiction would sanction fraud or injustice.
Alter Ego Factors
(1) Commingling personal and entity funds, (2) undercapitalization, (3) failure to observe formalities (meetings, records), (4) using entity as personal piggy bank.
Derivative vs. Direct Claims and Demand Requirement
Derivative Claim
Member/shareholder sues on behalf of the entity to redress harm to the entity itself. Recovery goes to the entity, not the suing member personally.
Direct Claim
A direct claim is brought by a member in their own name to redress harm suffered individually, with recovery going to the member.
Demand Requirement/Futility
Derivative suit: must first demand the board/members bring suit. Demand excused (futility) if the wrongdoer controls the entity or the board is interested in the transaction.
Partnership Formation
Partnership Definition
Association of 2+ persons carrying on as co-owners of a business for profit. No formalities required. Sharing profits creates a presumption of partnership.
Profit Sharing Presumption
Profit sharing = prima facie evidence of partnership. Not partnership evidence if profits received as: (1) wages, (2) debt repayment, (3) rent, (4) annuity, (5) sale of goodwill.
No Formalities Required
A partnership may form without a written agreement or state filing; only co-ownership of a business for profit is required.
Rights Among Partners / Profit Sharing
Equal Profit Sharing
Default rule: each partner gets an equal share of profits regardless of capital contributed. A different split requires agreement.
Capital Contributions and Profits
Unequal capital contributions do not change the default: profits and losses are split equally among partners unless they agree otherwise.
Partnership Dissolution, Winding Up, and Partner Authority
Dissolution of Partnership at Will
Partnership at will dissolves upon any partner giving express notice of withdrawal. No breach - just notice. The partnership must then wind up affairs.
Partner Authority During Winding Up
After dissolution, partner authority is limited to winding up: (1) completing existing obligations, (2) liquidating assets. Cannot enter new business or bind the partnership to new deals.
Lingering Apparent Authority
A dissolved partnership may be bound by a partner's post-dissolution act if the third party had no notice of the dissolution and the act would have bound the partnership before dissolution.
Vicarious Liability / Respondeat Superior
Respondeat Superior
Under respondeat superior, an employer is vicariously liable for an employee's torts committed within the scope of employment.
Scope of Employment (Frolic vs. Detour)
Detour (minor deviation) = still within scope, employer liable. Frolic (major departure for personal purposes) = outside scope, employer NOT liable.
Liability for Intentional Torts
An employer is generally not liable for an employee's intentional torts unless the use of force is authorized or inherent friction in the job makes the tort foreseeable.
Agent's Authority and Undisclosed Principal
Undisclosed Principal's Liability
An undisclosed principal is bound by contracts its agent enters with actual authority, even though the third party was unaware of the principal's existence.
Agent's Liability on Contract
An agent who contracts on behalf of an undisclosed principal is personally liable on the contract as if the agent were a party.
Third Party's Election of Remedies
Undisclosed principal: upon discovery, third party may elect to hold EITHER the principal or the agent liable, but not both (must choose one).
Agent's Fiduciary Duties
Duty of Loyalty
An agent owes the principal a fiduciary duty of loyalty, requiring the agent to act solely for the principal's benefit in all matters connected to the agency.
Prohibition on Secret Profits
An agent may not acquire a material benefit or secret profit from a third party in connection with an agency transaction without the principal's knowledge and consent.
Remedies for Breach of Loyalty
If an agent obtains a secret profit, the principal may recover it through disgorgement, requiring the agent to turn over all benefits received in breach of the duty of loyalty.
Defective Incorporation and Promoter Liability
Promoter Liability
Under the MBCA, persons who act on behalf of a corporation knowing there was no valid incorporation are jointly and severally liable for all resulting obligations.
De Facto Corporation
A de facto corporation exists when there was a good-faith, colorable attempt to comply with the incorporation statute and the business exercised corporate privileges, potentially shielding founders from personal liability.
Corporation by Estoppel
A party who deals with a business as though it were a corporation may be estopped from later denying its corporate status to hold the principals personally liable.
Shareholder Voting and Director Removal
Cumulative Voting
Cumulative voting allows a shareholder to multiply their votes by the number of directors being elected and concentrate all votes on one candidate, enabling minority shareholders to elect at least one director.
Removal of Director Elected Cumulatively
Cumulative voting protection: under MBCA, a director elected through cumulative voting may not be removed if the votes cast against removal would be sufficient to elect that director.
Director's Duty of Care and Business Judgment Rule
Duty of Care
Directors must act in good faith, with the care an ordinarily prudent person in a like position would exercise, and in a manner reasonably believed to be in the corporation's best interests.
Business Judgment Rule (BJR)
The business judgment rule is a rebuttable presumption that directors acted on an informed basis, in good faith, and in the honest belief their decision was in the corporation's best interests.
Rebutting the BJR
The BJR is rebutted by showing directors were grossly negligent in informing themselves before acting, or that they failed to exercise honest judgment.
Promoter Liability for Pre-Incorporation Contracts
Promoter's Personal Liability
Personally liable (jointly and severally) for ALL obligations incurred before incorporation. Released only by novation after corp is formed.
Corporate Adoption
A corporation becomes liable on a pre-incorporation contract through express board resolution or implied adoption by knowingly accepting the contract's benefits.
Novation Requirement for Promoter Release
A promoter is personally liable on pre-incorporation contracts. Released only by novation (requires agreement of promoter, corporation, AND the third party).
Merger and Dissenting Shareholder Rights
Appraisal Rights Trigger
Shareholders who dissent from a merger or other fundamental corporate change are entitled to demand the corporation pay them the fair value of their shares.
Perfection of Appraisal Rights
(1) give written notice before shareholder vote, (2) do not vote in favor, (3) timely demand payment after approval.
Exclusivity of Appraisal Remedy
Under the MBCA, appraisal is the dissenting shareholder's exclusive remedy unless the merger is unlawful or fraudulent.
Legality of Dividends and Director Liability
Corporate Solvency Tests for Distributions
Cannot distribute if (1) corporation cannot pay debts as they come due (equity insolvency test), OR (2) total liabilities exceed total assets (balance sheet test).
Surplus Calculation
Distribution limits: surplus = net assets minus stated capital. Directors must ensure distribution violates neither (1) balance sheet test (assets > liabilities), nor (2) equity insolvency test.
Director Liability for Unlawful Distributions
Directors who vote for or assent to an unlawful distribution are jointly and severally liable to the corporation for the excess amount distributed beyond what was lawful.
Enforceability of Share Transfer Restriction
Validity of Restrictions
Restrictions on share transfers are permissible and enforceable if they are reasonable and do not constitute an absolute prohibition on alienation.
Consent Restraint
Board-consent restriction on share transfers is generally valid and enforceable against shareholders who have notice (in the articles, bylaws, or a shareholders' agreement).
Notice of Restriction
A transfer restriction is enforceable against a transferee only if it is conspicuously noted on the share certificate or the holder has actual knowledge of it.
Shareholder Oppression and Deadlock
Shareholder Oppression
Conduct that defeats the reasonable expectations of a minority shareholder, typically: (1) employment, (2) role in management, (3) return on investment.
Deadlock
Director deadlock exists when a divided board cannot take action, and shareholder deadlock exists when shareholders cannot elect directors, threatening the corporation's operation.
Judicial Dissolution
(1) director deadlock causing irreparable injury, (2) illegal acts by those in control, (3) oppression of minority, (4) fraudulent conduct.
Buyout as Alternative Remedy
As an alternative to dissolution, a court may order the corporation or majority shareholders to purchase the aggrieved shareholder's shares at fair value.
Officer Authority and Ratification
Actual Authority
Created by principal's manifestations TO THE AGENT. Express (stated directly) or implied (reasonably necessary to carry out express authority, or customary in the role).
Apparent Authority
Created by principal's manifestations TO THE THIRD PARTY. Third party reasonably believes agent is authorized. Principal bound even if no actual authority exists.
Ratification
A corporation becomes bound by an unauthorized agent act if the board, with knowledge of material facts, subsequently approves the act or accepts its benefits.
Member's Authority to Bind LLC
Actual Authority
A member has actual authority to bind the LLC only to the extent provided in the operating agreement or authorized by member consent.
Apparent Authority
In a member-managed LLC, each member is an agent for ordinary course business, binding the LLC unless the member lacked authority and the third party knew or had notice of that limitation.
Member's Fiduciary Duties
Duty of Care
A member owes the LLC a duty of care to refrain from grossly negligent or reckless conduct, intentional misconduct, or a knowing violation of law.
Operating Agreement Effect on Duties
An operating agreement may not eliminate the duty of care but may specify standards measuring performance, provided the modification is not manifestly unreasonable.
Duty of Loyalty
A member owes the LLC a duty of loyalty, including accounting for benefits received, refraining from adverse dealings, and refraining from competing with the LLC.
Member Dissociation and LLC Dissolution
Events Causing Dissolution
(1) event specified in operating agreement, (2) consent of all members, (3) 90 days with no remaining members, (4) judicial decree.
Power to Dissociate
A member has the power to dissociate at any time, rightfully or wrongfully, by giving express notice of withdrawal to the LLC.
Effect of Dissociation
Does NOT dissolve the entity. Instead, LLC must buy out the dissociated member's distributional interest at fair value as of the dissociation date.
Limited Partner Liability
Limited Partner Liability Shield
A limited partner is generally not personally liable for the obligations of the limited partnership solely by virtue of their status as a limited partner.
Control Rule Exception
A limited partner who participates in control of the business may be personally liable to third parties who reasonably believed, based on that conduct, the limited partner was a general partner.
Safe Harbors
Consulting with or advising the GP does not constitute "participation in control." LP retains limited liability despite advisory role.
Piercing the Corporate Veil
PCV General Standard
Piercing the corporate veil: shareholder personally liable if (1) abused the corporate privilege (alter ego/commingling), AND (2) maintaining the fiction would be inequitable or sanction fraud.
PCV Factors
(1) commingling personal and corporate assets, (2) failure to observe corporate formalities (meetings, records), (3) undercapitalization.
Shareholder Derivative Suits and SLCs
Demand Requirement
In a derivative suit, a shareholder must first make a written demand on the board of directors to take the desired action before filing suit.
SLC Standard of Review
Court defers to dismissal recommendation if (1) committee was independent, (2) acted in good faith, (3) conducted reasonable investigation.
Civil Procedure
General Jurisdiction
General Jurisdiction — At Home Test
D can be sued for anything. Only where D is "at home." Individuals: domicile. Corporations: (1) state of incorporation + (2) principal place of business.
Specific Jurisdiction — Minimum Contacts
Minimum Contacts
Defendant must have purposefully availed themselves of forum state benefits such that being sued there is reasonably foreseeable. Unilateral acts of plaintiff don't count.
Purposeful Availment
The defendant must have purposefully availed itself of the privilege of conducting activities in the forum state, invoking the benefits and protections of its laws.
Claim Arises From Contacts
The plaintiff's claim must arise out of or relate to the defendant's contacts with the forum state.
Removal to Federal Court
Diversity Jurisdiction (28 USC § 1332)
(1) complete diversity (no P and D share citizenship), (2) amount in controversy exceeds $75,000. Individuals: domicile. Corps: incorporation + principal place of business.
Removal (28 USC § 1441)
A defendant may remove a civil action from state court to federal district court if the federal court would have had original jurisdiction over the action.
Forum-Defendant Rule
Forum-Defendant Rule (28 USC § 1441(b)(2))
In diversity cases, removal is barred if any properly joined and served defendant is a citizen of the state where the action was brought.
Preclusion Source of Law for State Judgment
State Judgment Preclusion Source
A federal court must give a prior state-court judgment the same preclusive effect it would receive under the law of the state that rendered it.
Preclusion Choice of Law
The preclusive effect of a prior judgment is governed by the substantive law of the rendering court's jurisdiction, not the forum where the second suit is filed.
Claim Preclusion (Res Judicata)
Claim Preclusion Elements
Claim preclusion (res judicata) bars a second suit when: (1) there was a valid, final judgment on the merits, (2) between the same parties or their privies, and (3) involving the same claim or cause of action.
Same Claim (Transactional Test)
Under the transactional test, 'same claim' encompasses all claims arising from a common nucleus of facts, including all theories of recovery the plaintiff could have raised in the first action.
Issue Preclusion (Collateral Estoppel)
Issue Preclusion Elements
Issue preclusion (collateral estoppel) bars relitigation when: (1) the issue is identical to one in the prior action, (2) the issue was actually litigated and decided, (3) there was a valid final judgment, and (4) the determination was essential to that judgment.
Essential to the Judgment
The court could not have reached its decision without resolving that issue. Alternative or gratuitous findings do NOT preclude.
Federal Question Jurisdiction
Arising Under Jurisdiction
Federal question jurisdiction (28 USC §1331): federal courts hear civil actions arising under the Constitution, federal laws, or treaties. Must appear on the face of the complaint.
Well-Pleaded Complaint Rule
Federal question jurisdiction exists only when the federal issue appears on the face of the plaintiff's well-pleaded complaint, not in an anticipated defense.
Diversity Jurisdiction
Complete Diversity Requirement
Complete diversity: No plaintiff may share state citizenship with any defendant. Even one overlap destroys diversity jurisdiction. Citizenship: individuals = domicile; corps = incorporation + PPB.
Corporate Citizenship
Corporate citizenship (diversity): citizen of (1) every state of incorporation, AND (2) the state of its principal place of business (nerve center = where high-level officers direct activities).
Individual Citizenship (Domicile)
An individual's citizenship is their domicile, requiring physical presence in a state plus the intent to remain there indefinitely.
Amount in Controversy
The amount in controversy must exceed $75,000, exclusive of interest and costs.
Supplemental Jurisdiction
Common Nucleus of Operative Fact
A federal court may exercise supplemental jurisdiction over state-law claims that share a common nucleus of operative fact with an anchor claim over which the court has original jurisdiction.
§ 1367(b) Exception Inapplicable
§1367(b) restriction: limits supplemental jurisdiction ONLY in diversity-only cases. Does not apply when there is an independent federal question basis for jurisdiction.
Discretionary Decline
Court may decline supplemental jurisdiction (§1367(c)) if: (1) novel/complex state-law issue, (2) state claim substantially predominates, (3) all federal claims dismissed, (4) other compelling reasons.
Proper Venue
Residency Venue (1391(b)(1))
Venue is proper in any district where any defendant resides, if all defendants reside in the same state.
Transactional Venue (1391(b)(2))
Venue is proper in a district where a substantial part of the events or omissions giving rise to the claim occurred.
Corporate Residence (1391(c)(2))
An entity defendant resides for venue purposes in any district where it is subject to personal jurisdiction with respect to the action.
Transfer of Venue and Forum Non Conveniens
Transfer for Convenience (§ 1404(a))
Transfer of venue for convenience: court may transfer to any district where case might have been brought. Factors: convenience of parties and witnesses, access to evidence, interest of justice.
Forum Non Conveniens
Forum non conveniens: dismiss if (1) adequate alternative forum exists (abroad), AND (2) public + private interest factors strongly favor litigation there.
Public and Private Interest Factors
Forum non conveniens factors: Private = (1) access to evidence, (2) witness availability, (3) practical problems. Public = (1) court congestion, (2) local interest, (3) familiarity with applicable law.
Preliminary Injunction
Four-Factor Test for Preliminary Injunction
To obtain a preliminary injunction, the movant must establish: (1) likelihood of success on the merits, (2) likelihood of irreparable harm absent relief, (3) that the balance of equities favors the movant, and (4) that an injunction serves the public interest.
Irreparable Harm
Irreparable harm means injury that cannot be adequately compensated by money damages after trial, requiring a showing that harm is likely and cannot be remedied at law.
Bond Requirement (FRCP 65(c))
FRCP 65(c) requires the movant to give security in an amount the court deems proper to pay any costs or damages if a party is wrongfully enjoined.
Pleading Standards & 12(b)(6) Motion
Rule 8(a)(2)
FRCP 8(a)(2) requires a complaint to contain a short and plain statement of the claim showing that the pleader is entitled to relief.
Plausibility Standard
To survive a 12(b)(6) motion, a complaint must contain sufficient factual matter, accepted as true, to state a claim plausible on its face. Legal conclusions and threadbare recitals of elements are not presumed true.
Relation Back of Amended Pleading
Same Transaction or Occurrence
Under FRCP 15(c)(1)(B), an amendment relates back when the claim asserted arose out of the same conduct, transaction, or occurrence set forth in the original pleading.
Changing a Party (Rule 15(c)(1)(C))
An amendment adding a party relates back only if: (1) it arises from the same transaction, (2) the new party received notice within the Rule 4(m) period, and (3) the new party knew or should have known the action would have been brought against it but for a mistake concerning the proper party's identity.
Heightened Pleading for Fraud
Rule 9(b) Particularity
FRCP 9(b) requires that in alleging fraud or mistake, a party must state with particularity the circumstances constituting the fraud or mistake.
Elements of Particularity
Fraud particularity requires pleading the who, what, when, where, and how of the alleged fraudulent conduct.
Pleading Intent
Under FRCP 9(b), malice, intent, knowledge, and other conditions of a person's mind may be alleged generally.
Required Joinder of Parties
FRCP 19(a) Required 'Necessary' Party
Under FRCP 19(a), a party must be joined if feasible if: (1) complete relief cannot be accorded without them, (2) their absence may impair their ability to protect their own interest, or (3) their absence would expose an existing party to a substantial risk of inconsistent obligations.
FRCP 19(b) 'Indispensable' Party
(1) prejudice to parties/absentee, (2) can relief be shaped to lessen prejudice, (3) adequacy of judgment without them, (4) P has alternative forum.
Intervention
FRCP 24(a) Intervention as of Right
(1) timely motion, (2) interest in the transaction, (3) disposition may impair that interest, (4) existing parties do not adequately represent it.
FRCP 24(b) Permissive Intervention
Under FRCP 24(b), a court may permit intervention when the movant's claim or defense shares a common question of law or fact with the main action, provided intervention will not unduly delay or prejudice the adjudication.
Class Action Certification
FRCP 23(a) Prerequisites
FRCP 23(a) requires all four prerequisites for class certification: numerosity (joinder impracticable), commonality (common questions of law or fact), typicality (representative claims typical of the class), and adequacy (representative will fairly protect class interests).
FRCP 23(b)(3) Requirements
A FRCP 23(b)(3) damages class requires that common questions of law or fact predominate over individual questions, and that a class action is superior to other available methods for fair and efficient adjudication.
Work Product Doctrine
Work Product Definition
Under FRCP 26(b)(3), work product protection covers documents and tangible things prepared in anticipation of litigation or for trial by or for a party or its representative.
Ordinary Work Product
Ordinary (fact) work product is discoverable only upon a showing of substantial need for the materials and inability to obtain their substantial equivalent without undue hardship.
Opinion Work Product
Attorney's mental impressions, conclusions, opinions, and legal theories receive near-absolute protection. Discoverable only in extraordinary circumstances.
E-Discovery Proportionality and Burden
Scope of Discovery - Relevance
Under FRCP 26(b)(1), parties may obtain discovery of any nonprivileged matter relevant to any party's claim or defense and proportional to the needs of the case.
Scope of Discovery - Proportionality
Weigh (1) importance of issues, (2) amount in controversy, (3) parties' resources, (4) importance of discovery to resolve case, (5) burden vs. likely benefit.
Cost-Shifting for ESI
When electronically stored information is not reasonably accessible (undue burden/cost), court may order production with costs shifted to requesting party.
Sanctions for Failure to Preserve ESI
Duty to Preserve Evidence
Litigation hold: duty to preserve relevant ESI/documents arises when litigation is reasonably anticipated. Failure to implement after notice of suit = spoliation sanctions.
FRCP 37(e) Predicate
FRCP 37(e) sanctions require: (1) ESI that should have been preserved was lost, (2) the party failed to take reasonable steps to preserve it, and (3) the lost ESI cannot be restored or replaced through additional discovery.
FRCP 37(e)(1) Sanctions
Under FRCP 37(e)(1), if the loss of ESI prejudices another party, the court may order measures no greater than necessary to cure the prejudice.
FRCP 37(e)(2) Sanctions
Under FRCP 37(e)(2), if the party acted with intent to deprive another of the ESI, the court may presume the information was unfavorable, give an adverse inference instruction, or impose dismissal or default judgment.
Summary Judgment
Summary Judgment Standard
Under FRCP 56, summary judgment is proper when the movant shows there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.
Movant's Burden
The movant bears the initial burden of production, which may be met by pointing out the absence of evidence to support an essential element of the nonmovant's case.
Non-movant's Burden
Once the movant meets its burden, the nonmovant must go beyond pleadings and produce admissible evidence showing a genuine dispute of material fact exists.
Right to a Jury Trial
Seventh Amendment
The Seventh Amendment preserves the right to a jury trial in suits at common law where the value in controversy exceeds twenty dollars, as that right existed at common law in 1791.
Legal vs. Equitable Distinction
Seventh Amendment jury right: attaches to legal claims (money damages) but NOT equitable claims (injunctions, specific performance, accounting).
Mixed Legal and Equitable Claims
When legal and equitable claims share common issues, the jury must first decide the factual issues underlying the legal claims, and the judge is bound by those findings on the equitable claims.
Post-Trial Motions (JMOL and New Trial)
JMOL Standard (Rule 50)
Under FRCP 50, judgment as a matter of law is appropriate when a reasonable jury would not have a legally sufficient evidentiary basis to find for the nonmoving party on a claim.
Prerequisite for Renewed JMOL
A renewed JMOL motion under FRCP 50(b) is available only if the party made a JMOL motion under FRCP 50(a) at the close of evidence before submission to the jury.
New Trial Standard (Rule 59)
Granted for (1) verdict against the great weight of evidence, (2) prejudicial legal error, (3) any other reason recognized at common law.
Rule 11 Sanctions
Attorney Certification
FRCP 11(b): by presenting a pleading, attorney certifies (1) it is not for an improper purpose, (2) legal contentions are warranted, (3) factual contentions have evidentiary support after reasonable inquiry.
Safe Harbor Provision
Under FRCP 11(c)(2), a sanctions motion must first be served on the opposing party, who then has 21 days to withdraw or correct the challenged paper before the motion may be filed with the court.
Purpose of Sanctions
Rule 11 sanctions are limited to what is sufficient to deter repetition of the conduct and may be nonmonetary or monetary, including attorney's fees.
Post-Trial Motions (Rule 59 & 60)
Rule 59 Timing
Motion for new trial (FRCP 59): must be filed within 28 days of judgment. This deadline is mandatory and cannot be extended.
Newly Discovered Evidence Standard
For newly discovered evidence motions under Rules 59 and 60(b)(2), the movant must show: (1) the evidence was discovered after trial, (2) the movant exercised due diligence before trial, and (3) the evidence is material and would likely produce a different outcome.
Rule 60(b) Timing
Under FRCP 60(b)(2), a motion for relief from judgment based on newly discovered evidence must be made within one year of the entry of the judgment or order.
Appealability of Interlocutory Order
Final Judgment Rule
Courts of appeals have jurisdiction only over final decisions of district courts that end litigation on the merits, leaving nothing for the court to do but execute the judgment.
Interlocutory Appeal of Injunctions
Interlocutory appeal exception for injunctions: courts of appeals have jurisdiction over interlocutory orders granting, refusing, continuing, modifying, or dissolving injunctions.
Merger Doctrine
Interlocutory orders merge into the final judgment. A party need not appeal interlocutory orders separately - they are reviewable on appeal from final judgment.
Constitutional Law
State Action Doctrine
State Action Requirement
Constitutional rights restrict only government actors, not private parties. A state-funded public university qualifies as a state actor.
First Amendment — Content-Based Restriction
Content-Based Restriction / Strict Scrutiny
A content-based speech restriction is presumptively unconstitutional and must survive strict scrutiny: the government must prove the law serves a compelling interest and is narrowly tailored to achieve that end.
Overbreadth Doctrine
A law is unconstitutionally overbroad when it prohibits a substantial amount of protected speech, not just unprotected speech, thereby chilling constitutionally protected expression.
Vagueness Doctrine
A law is void for vagueness if it fails to provide a person of ordinary intelligence fair notice of prohibited conduct and grants officials unbridled discretion to enforce it arbitrarily.
Procedural Due Process
Protected Interest
Procedural due process trigger: government deprives someone of a protected (1) liberty interest (freedom from restraint, fundamental rights), or (2) property interest (entitlement, not mere expectation).
What Process Is Due
The amount of process due is determined by balancing three factors: (1) the private interest at stake, (2) the risk of erroneous deprivation and the value of additional safeguards, and (3) the government's interest.
Substantive Due Process
Substantive Due Process
Bars arbitrary government action regardless of procedure. Fundamental rights = strict scrutiny. Non-fundamental = rational basis. "Shocks the conscience" for executive action.
Equal Protection Clause
Tiers of Scrutiny
The Equal Protection Clause applies three tiers of scrutiny: strict scrutiny for suspect classes such as race, intermediate scrutiny for quasi-suspect classes such as gender, and rational basis review for all other classifications.
Discriminatory Intent vs. Disparate Impact
Equal Protection and facially neutral laws: heightened scrutiny only if P proves discriminatory PURPOSE or intent behind the law. Disparate impact alone is not enough.
Rational Basis Review
Law must be (1) rationally related to (2) a legitimate government interest. Very deferential. Burden on challenger. Conceivable basis is enough.
Dormant Commerce Clause
Discrimination Against Interstate Commerce
A state law that facially discriminates against out-of-state commerce, or is discriminatory in purpose or effect, is virtually per se invalid; the state must show a legitimate local purpose that cannot be served by any reasonable nondiscriminatory alternative.
Pike Balancing Test
A non-discriminatory state law that only incidentally burdens interstate commerce is upheld unless the burden on interstate commerce is clearly excessive in relation to the putative local benefits.
Market Participant Exception
The Dormant Commerce Clause does not restrict state action when the state itself participates in the market as a buyer or seller, rather than acting as a regulator of private transactions.
Takings Clause
Takings Clause Rule
The Fifth Amendment, incorporated against the states through the Fourteenth Amendment, prohibits the taking of private property for public use without just compensation.
Per Se Physical Taking
Any permanent physical occupation of private property authorized by the government is a per se taking requiring just compensation, regardless of the size of the intrusion or the public interest served.
Regulatory Taking (Penn Central)
A regulation may constitute a taking even without physical occupation; courts apply the Penn Central balancing test, weighing (1) the economic impact on the owner, (2) interference with investment-backed expectations, and (3) the character of the government action.
Commerce Clause Power
Categories of Commerce Power
Under the Commerce Clause, Congress may regulate (1) the channels of interstate commerce, (2) the instrumentalities of and persons and things in interstate commerce, and (3) activities that have a substantial effect on interstate commerce.
Aggregation Principle
Congress may regulate a purely local activity under the substantial-effects prong if that activity, viewed in the aggregate across the nation, substantially affects interstate commerce.
Limits on Commerce Power
Commerce Clause limit (Lopez): substantial-effects prong limited to economic/commercial activity. Congress cannot regulate non-economic conduct (guns near schools, violence against women) under Commerce power alone.
Spending Power
Dole Factors for Conditional Spending
Spending power conditions: (1) general welfare, (2) unambiguous conditions, (3) related to federal interest, (4) not independently unconstitutional, (5) not coercive.
Coercion Limitation
A federal spending condition is unconstitutionally coercive when it crosses the line from pressure into compulsion, leaving states no real choice but to comply, effectively commandeering the state legislature.
Supremacy Clause and Preemption
Supremacy Clause
Supremacy Clause: federal law is the supreme law of the land. Any state law that conflicts with valid federal law is preempted and void.
Express Preemption
Express preemption occurs when Congress explicitly states in a federal statute that it supersedes state or local law in a defined area.
Implied Conflict Preemption
Conflict preemption applies when it is physically impossible to comply with both federal and state law, or when state law stands as an obstacle to the full accomplishment of federal objectives.
Section A: Content-Based Sign Ban
Content-Based Regulation
A speech regulation is content-based if it applies because of the topic discussed or the viewpoint or message expressed, and such regulations are presumptively unconstitutional subject to strict scrutiny.
Strict Scrutiny
Law must be (1) necessary to achieve (2) a compelling government interest, (3) narrowly tailored (least restrictive means). Burden on government. Applies: race, national origin, fundamental rights.
Section B: Permit Scheme as Prior Restraint
Prior Restraint
Government prevents speech before it occurs (permits, injunctions, licensing). Bears a HEAVY presumption against constitutionality. Rarely upheld.
Valid Permit Scheme Requirements
Must have (1) narrow, objective, definite standards, (2) no unbridled discretion in the decision-maker, (3) prompt judicial review if denied.
Section C: Vagueness and Overbreadth
Vagueness Doctrine
A law is void for vagueness if a person of ordinary intelligence must guess at its meaning, it fails to provide fair notice of what conduct is prohibited, or it permits arbitrary and discriminatory enforcement.
Overbreadth Doctrine
A law is unconstitutionally overbroad if it regulates substantially more protected speech than necessary to serve a legitimate government purpose, thereby chilling constitutionally protected expression.
Free Exercise Clause
Neutral Law of General Applicability
Free Exercise Clause: a neutral, generally applicable law that incidentally burdens religion needs only rational basis review. Not strict scrutiny.
Non-Neutral or Non-Generally Applicable Laws
A law that is not neutral or not generally applicable because it targets or singles out religious practice for disfavored treatment must survive strict scrutiny.
Establishment Clause
Neutrality in Funding Programs
The Establishment Clause is not violated when a government benefit program provides funding to a broad class of recipients on a neutral, secular basis, even if some beneficiaries are religious organizations.
Historical Practices and Understandings Test
The modern Establishment Clause test asks whether the government action aligns with historical practices and understandings of the Clause and is not coercive toward religion.
Lemon Test (Obsolete)
Establishment Clause: the old three-part test (secular purpose, primary secular effect, no excessive entanglement) is ABANDONED. Current test: historical practice and tradition + coercion analysis.
Freedom of Expressive Association
Right of Expressive Association
Right to associate for political, social, economic, religious, and cultural purposes. Government infringement requires compelling interest + narrow tailoring.
Significant Burden on Expression
Forced inclusion of an unwanted member or leader violates expressive association rights if that person's presence would significantly impair the group's ability to advocate its viewpoints.
Unconstitutional Conditions
Government cannot condition a public benefit (university admission, tax exemption) on the waiver of a constitutional right.
Presidential Power and the Executive Order
Take Care Clause
President must faithfully execute federal laws. Cannot suspend or rewrite statutes. Limits executive power to act without congressional authorization.
Youngstown Framework (Jackson's Concurrence)
(1) Maximum power = Congress authorized it. (2) Twilight zone = Congress silent. (3) Lowest ebb = Congress prohibited it (must show exclusive presidential power).
Congressional Power and the Legislative Veto
Bicameralism and Presentment
Legislation requires: (1) bicameralism (pass both House and Senate), (2) presentment (President signs or Congress overrides veto). No legislative vetoes or one-house actions.
Legislative Veto Unconstitutionality
Under INS v. Chadha, any congressional action with the purpose and effect of altering legal rights outside the legislature must satisfy both bicameralism and presentment. A legislative veto that bypasses presentment is unconstitutional.
Presidential Compliance with Subpoena
Congressional Investigatory Power
Congress has broad inherent power to investigate any matter on which it may legislate, including the power to issue compulsory subpoenas for documents and testimony.
Presidential Immunity
The President enjoys absolute immunity from civil damages liability for official acts, but does not have absolute immunity from compulsory legal process such as a subpoena for documents.
Executive Privilege
Executive privilege is a qualified, not absolute, privilege protecting confidential presidential communications. It must be balanced against competing needs and yields when it would obstruct a legitimate government function such as criminal prosecution or congressional oversight.
Taxpayer Standing
General Rule Against Taxpayer Standing
As a general rule, a taxpayer's interest in how the government spends tax revenue is too generalized and diffuse to constitute an injury in fact, and thus does not confer Article III standing.
Flast v. Cohen Exception
A taxpayer has standing to challenge a federal spending measure on Establishment Clause grounds by showing (1) a logical link between taxpayer status and the legislative enactment, and (2) a nexus between that status and the constitutional infringement alleged.
Mootness
Mootness Doctrine
Case becomes moot when events after filing eliminate P's injury. No live controversy = no jurisdiction. Exceptions: (1) capable of repetition yet evading review, (2) voluntary cessation by D.
Capable of Repetition, Yet Evading Review Exception
A case is not moot under the capable-of-repetition exception if (1) the challenged conduct is too short in duration to be fully litigated before it ceases, and (2) there is a reasonable expectation the same complaining party will face the same action again.
Political Question Doctrine
Political Question Doctrine
The political question doctrine bars federal courts from adjudicating constitutional issues textually committed to the unreviewable discretion of the political branches or for which judicially manageable standards are lacking.
Baker v. Carr Factors
A political question is identified primarily by (1) a textually demonstrable constitutional commitment of the issue to a coordinate political department, or (2) a lack of judicially discoverable and manageable standards for resolving it.
Privileges and Immunities Clause
P&I Discrimination Prohibition
Privileges & Immunities (Art. IV): States cannot discriminate against out-of-state citizens regarding fundamental rights (especially earning a livelihood). Does not protect corporations or aliens.
P&I Justification Test
State discrimination survives only if (1) substantial reason for different treatment, AND (2) discrimination closely related to achieving that reason.
Contracts Clause
Substantial Impairment
The Contracts Clause prohibits states from enacting laws that retroactively and substantially impair existing contractual obligations. The threshold inquiry is whether the law substantially impairs a contractual relationship.
Public Contract Impairment Test
When a state substantially impairs a public contract to which the state itself is a party, the impairment receives heightened scrutiny and is upheld only if it is reasonable and necessary to serve a significant and legitimate public purpose.
Eleventh Amendment Sovereign Immunity
General Rule of Sovereign Immunity
The Eleventh Amendment bars suits by private parties against a state in federal court for monetary damages or equitable relief unless the state has consented to suit.
Exceptions to Sovereign Immunity
Eleventh Amendment immunity has three exceptions: state waiver, valid congressional abrogation under Fourteenth Amendment Section 5, and the Ex parte Young doctrine permitting suits against state officials for prospective injunctive relief to end ongoing federal law violations.
Thirteenth Amendment Enforcement Power
Congressional Enforcement Power
Section 2 of the Thirteenth Amendment gives Congress broad power to enforce the abolition of slavery and involuntary servitude through appropriate legislation targeting their badges and incidents.
Regulation of Private Conduct
Thirteenth Amendment: unlike the 14th Amendment, has NO state-action requirement. Congress can use it to prohibit purely private racial discrimination.
Badges and Incidents of Slavery
Congress has broad power to determine rationally what constitutes a badge or incident of slavery and to enact legislation eliminating such conditions, even if they involve only private conduct.
Fourteenth Amendment Section 5 Power
State-Action Doctrine
14th Amendment reaches ONLY state action - not private conduct. Congress's §5 enforcement power cannot remedy purely private discrimination without a nexus to government conduct.
Congruence and Proportionality Test
Section 5 legislation is valid only if there is congruence and proportionality between the identified pattern of unconstitutional state conduct and the remedial means Congress adopts.
Tenth Amendment and Anti-Commandeering
Anti-Commandeering Principle
The Tenth Amendment's anti-commandeering principle prohibits Congress from compelling states to enact, administer, or enforce a federal regulatory program using state resources.
Commandeering of State Executive Officials
Anti-commandeering: Congress cannot compel state or local officials to administer or enforce federal law. States may volunteer (cooperative federalism), but cannot be conscripted.
Contracts
Contract Formation
Offer
(1) present intent to contract, (2) communication to an identified offeree, (3) terms definite enough to allow a remedy.
Acceptance
(1) assent to the offer's terms, (2) in a manner the offer invites or requires, (3) before the offer lapses or is revoked.
Consideration
Each party must suffer a legal detriment or confer a legal benefit on the other.
Statute of Frauds
SOF $500 Threshold
UCC Statute of Frauds (2-201): A contract for goods at $500+ is unenforceable unless there is (1) a writing indicating a contract, (2) signed by the party to be charged.
SOF Satisfaction
The writing must be signed by the party against whom enforcement is sought, and must indicate a contract for sale and specify the quantity of goods.
Anticipatory Repudiation / Breach
Anticipatory Repudiation
Anticipatory repudiation occurs when a party makes an unequivocal statement, before performance is due, that it will not perform its contractual obligations.
Effect of Repudiation
Upon anticipatory repudiation, the aggrieved party may: (1) treat the contract as totally breached and sue immediately, (2) suspend own performance and await retraction, (3) resort to any remedy for breach.
Buyer's Remedies
Cover (UCC 2-712)
Buyer may purchase substitute goods in good faith and recover: cover price minus contract price, plus incidental/consequential damages.
Incidental Damages (UCC 2-715(1))
Incidental damages include commercially reasonable charges, expenses, or commissions incurred in effecting cover or otherwise resulting from the breach.
Consequential Damages (UCC 2-715(2))
Recoverable only if (1) foreseeable at the time of contracting, and (2) not preventable by reasonable mitigation.
Deposit Recovery
Upon a seller's breach, the buyer is entitled to recover any deposit or down payment already paid, to avoid unjust enrichment of the breaching seller.
Conditions and Waiver
Express Condition
An event that must occur before a duty to perform arises. Must be strictly satisfied (not substantial performance). Language: "if," "on condition that," "provided that."
Effect of Non-Occurrence
When an express condition fails: the duty it triggered never arises. The non-occurrence excuses the conditional party from performing. Contrast: breach creates a cause of action.
Waiver of Condition
A party may waive a condition to its own duty by express words or by conduct that is inconsistent with requiring the condition's occurrence, such as continuing to perform despite the condition's failure.
Commercial Impracticability
UCC Article 2
UCC Article 2 governs contracts for the sale of goods, including manufactured goods like widgets, and provides the applicable impracticability doctrine at UCC 2-615.
Commercial Impracticability Rule
Under UCC 2-615, a seller's performance is excused if it has been made impracticable by the occurrence of a contingency whose non-occurrence was a basic assumption on which the contract was made.
Foreseeability Limitation
Impracticability is unavailable if the supervening event was foreseeable, because a foreseeable risk is one the promisor implicitly assumed when entering the fixed-price contract.
Mere Cost Increase
Even a dramatic price increase is usually insufficient. Must be so extreme it alters the essential nature of performance (e.g., 10x cost might qualify, 2x won't).
Promissory Estoppel
Elements of Promissory Estoppel
Promissory estoppel requires: (1) a clear promise, (2) which the promisor should reasonably expect to induce reliance, (3) which does induce actual reliance, and (4) injustice can only be avoided by enforcement.
Modification without Consideration
Common law = new consideration required. UCC = no consideration needed, just good faith. Both: if within the SOF, the modification itself must satisfy the SOF.
Promissory Estoppel Remedy
The remedy for promissory estoppel may be limited as justice requires, often to reliance damages rather than full expectation damages.
Contract Modification and Consideration
UCC § 2-209(1)
No consideration needed (just good faith). Contrast common law: consideration required. Both: if within SOF, modification itself must satisfy SOF.
Good Faith Requirement
A modification under the UCC must meet the test of good faith, meaning it cannot be extorted by a party who threatens breach to coerce a higher price from a dependent buyer.
Common Law Pre-Existing Duty Rule
At common law, a promise to perform a pre-existing legal duty is not valid consideration for a modification, though this rule does not apply to sales of goods under the UCC.
No-Oral-Modification Clause and Waiver
UCC § 2-209(2)
Under UCC 2-209(2), a signed agreement requiring written modification cannot be modified or rescinded orally, giving NOM clauses legal effect.
UCC § 2-209(4)
Under UCC 2-209(4), an attempted oral modification that fails to satisfy a NOM clause may nonetheless operate as a waiver of the clause for the conduct already undertaken.
UCC § 2-209(5)
Under UCC 2-209(5), a waiver affecting future executory performance may be retracted by reasonable notice, unless retraction would be unjust given material reliance on the waiver.
Contract Formation - Indefiniteness
UCC Formation
Under UCC 2-204, a contract for sale of goods does not fail for indefiniteness if the parties intended to contract and there is a reasonably certain basis for giving an appropriate remedy.
Quantity Term
UCC: quantity is the ONE essential term courts cannot supply. Missing quantity = no contract. Exception: output contracts and requirements contracts (good faith + not unreasonably disproportionate).
Agreement to Agree
An agreement to agree on a material term in the future is generally unenforceable for indefiniteness, because no court can determine what the parties would have agreed upon.
Contractual Capacity of a Minor
Minor's Power to Disaffirm
A contract made by a minor is voidable at the minor's election, and may be disaffirmed before reaching the age of majority or within a reasonable time thereafter.
Ratification
Upon reaching the age of majority, a person may ratify a minor's contract by express affirmance, by conduct inconsistent with avoidance, or by failing to disaffirm within a reasonable time.
Liability for Necessaries
A minor who disaffirms a contract for necessaries remains liable in quasi-contract for the reasonable value of goods or services actually received and used.
Duress
Duress Definition
A contract is voidable for duress if a party's assent was induced by an improper threat that left the victim no reasonable alternative but to agree.
Improper Threat
Involves (1) a crime, (2) a tort, (3) bad-faith breach of good faith and fair dealing, or (4) threats to expose embarrassing information for unfair advantage.
Mutual Mistake
Mutual Mistake Elements
Mutual mistake allows avoidance when: (1) both parties share a mistaken belief about a basic assumption at contract formation, (2) the mistake has a material effect on the agreed exchange, and (3) the adversely affected party did not bear the risk of the mistake.
Allocation of Risk
A party bears the risk of a mistake if the risk is allocated by agreement, or the party knew it had limited knowledge but treated that limited knowledge as sufficient at the time of contracting.
Fraudulent Misrepresentation
Elements of Fraudulent Misrepresentation
A fraudulent misrepresentation is a false assertion of fact made knowingly or without belief in its truth, intended to induce the other party's assent, upon which that party justifiably relies.
Justifiable Reliance and Remedy
A contract is voidable by the recipient if assent was induced by a fraudulent or material misrepresentation on which the recipient justifiably relied, allowing the victim to rescind and recover restitution.
Illegality and Public Policy
Restraint of Trade
A covenant that limits competition is a restraint of trade, unenforceable on public policy grounds if it imposes a restraint greater than necessary to protect a legitimate interest.
Reasonableness of Restraint
Courts evaluate the reasonableness of a restraint by weighing its duration, geographic scope, and activity restricted against the legitimate protectable interest it purports to serve.
Severability
A court may sever an unenforceable clause from an otherwise valid contract if the unenforceable portion is not an essential part of the agreed exchange and enforcing the rest serves justice.
Unconscionability
Procedural Unconscionability
Absence of meaningful choice. Shown by: (1) unequal bargaining power, (2) oppressive fine print, (3) high-pressure tactics, (4) no opportunity to understand terms.
Substantive Unconscionability
The terms themselves are so unreasonably one-sided that they shock the conscience. Must combine with procedural unconscionability.
Remedy for Unconscionability
(1) refuse to enforce the entire contract, (2) enforce without the unconscionable clause, (3) limit the clause to avoid unconscionable result.
Parol Evidence Rule
Parol Evidence Rule General Statement
Under UCC 2-202, a final written agreement may not be contradicted by evidence of any prior agreement or contemporaneous oral agreement, though it may be explained or supplemented by consistent additional terms.
Integration (Complete vs. Partial)
A completely integrated writing bars both contradiction and supplementation by extrinsic evidence, while a partially integrated writing bars contradiction but permits consistent additional terms.
Merger Clause
Merger/integration clause ("this is the full and final agreement"): strong evidence of complete integration, barring all extrinsic terms - contradictory and consistent.
Exception for Ambiguity
Extrinsic evidence is always admissible to explain or resolve an ambiguous term in the contract, even in a fully integrated agreement, because interpretation is not contradiction.
Contract Interpretation of Ambiguous Term
Ambiguity
A contract term is ambiguous if it is reasonably susceptible to more than one meaning, creating a need for extrinsic evidence to determine the parties' intent.
UCC Hierarchy of Interpretation
(1) express terms (control), (2) course of performance, (3) course of dealing, (4) trade usage.
Implied Warranty of Fitness for a Particular Purpose
IWOFPP Elements
An implied warranty of fitness for a particular purpose arises when: (1) the seller has reason to know the buyer's particular purpose, (2) the seller knows the buyer is relying on the seller's skill or judgment, and (3) the buyer does in fact rely on that judgment.
Disclaimer of IWOFPP
Disclaiming fitness warranty: must be (1) in writing AND (2) conspicuous. Disclaiming merchantability alone does NOT automatically disclaim fitness for particular purpose.
UCC Performance: Perfect Tender and Right to Cure
Perfect Tender Rule
If goods or delivery fail to conform in any respect, buyer may (1) reject the whole, (2) accept the whole, (3) accept any commercial unit(s) and reject the rest.
Seller's Right to Cure
Under UCC 2-508, when a buyer rejects a nonconforming tender and the contract time for performance has not expired, the seller may seasonably notify the buyer and make a conforming delivery within the contract time.
UCC Risk of Loss
Shipment Contract Risk of Loss
Risk of loss passes when seller delivers goods to carrier. Buyer bears transit risk.
Destination Contract Risk of Loss
Risk of loss passes only when goods are tendered at the named destination. Seller bears transit risk.
Seller's Duties in Shipment Contract
(1) make a reasonable carrier contract, (2) deliver goods to the carrier, (3) promptly notify the buyer.
UCC Warranties
Express Warranty
Created by (1) affirmation of fact or promise, (2) description of goods, or (3) sample/model - that becomes part of the basis of the bargain. No magic words needed.
Implied Warranty of Merchantability
Merchant seller warrants goods are fit for ordinary purposes. Arises automatically - no need to ask for it.
Implied Warranty of Fitness for a Particular Purpose
Under UCC 2-315, an implied warranty of fitness arises when the seller has reason to know the buyer's particular purpose and that the buyer relies on the seller's skill or judgment to select suitable goods.
Liquidated and Consequential Damages
Liquidated Damages Enforceability
A liquidated damages clause is enforceable if: (1) the amount is a reasonable forecast of actual harm at the time of contracting, and (2) the harm from breach would be difficult to estimate.
Consequential Damages (Foreseeability)
Consequential damages are recoverable only if they were a foreseeable result of breach at the time of contracting, meaning the breaching party had reason to know of the special circumstances that would cause the loss.
Certainty of Damages
Damages must be proven with reasonable certainty. Speculative or uncertain lost profits are not recoverable. New businesses face a higher burden (new business rule).
Specific Performance
Inadequacy of Legal Remedy
Specific performance is an equitable remedy granted only when the legal remedy of money damages is inadequate to fully compensate the non-breaching party.
Uniqueness of Subject Matter
Specific performance: money damages inadequate when subject matter is unique (land, rare goods, heirlooms). No adequate substitute available on the market.
Injunction and Equitable Defenses
Negative Injunction
While courts refuse specific performance of personal services contracts, they may grant a negative injunction preventing a party from performing for a competitor when the services are unique or extraordinary.
Unclean Hands Defense
A party seeking equitable relief must come to court with clean hands, meaning it must not have engaged in inequitable conduct relating to the same transaction.
Third-Party Beneficiary Rights
Intended Beneficiary
(1) contracting parties intended to benefit the third party (not incidental), AND (2) rights have vested (by reliance, assent, or lawsuit).
Vesting of Rights
An intended beneficiary's rights vest when the beneficiary materially changes position in justifiable reliance on the promise, manifests assent to it, or brings suit to enforce it.
Modification After Vesting
Once a third-party beneficiary's rights vest, the original contracting parties cannot modify or discharge the duty to the beneficiary without the beneficiary's consent.
Assignment of Rights and Delegation of Duties
Assignment of Rights
Contractual rights are generally freely assignable unless (1) the contract prohibits it, (2) assignment would materially change the obligor's duty or risk, or (3) the right is personal in nature.
Delegation of Duties
Duties are generally delegable unless (1) the contract prohibits it, (2) the obligee has a substantial interest in personal performance, or (3) the duty requires special skill/judgment. Delegator remains liable.
Delegator's Liability
Delegation does not release the delegator. If the delegate fails to perform, the original obligor remains liable to the obligee for breach.
Modification and Pre-Existing Duty Rule
Pre-Existing Duty Rule
Under the pre-existing duty rule, a promise to perform an obligation already owed under a contract is not valid consideration, so a promise to pay a bonus for resuming that very same duty lacks consideration.
Consideration for Modification
A modification to a common-law contract requires fresh consideration from both sides. If the party seeking more compensation undertakes a genuinely new or different obligation, that new obligation may supply consideration.
Criminal Law Procedure
Warrantless Vehicle Search
Automobile Exception
Automobile exception: Police may search a vehicle without a warrant if they have probable cause to believe it contains contraband or evidence. No warrant needed because vehicles are mobile and have reduced privacy expectation.
Probable Cause
Probable cause: A fair probability (under totality of circumstances) that contraband or evidence will be found in a particular place (search) or that a person committed a crime (arrest).
Scope of Search
Vehicle search scope (Ross): Extends to any area of the vehicle, including closed containers, where the object sought could reasonably be found.
Custodial Interrogation and Miranda Rights
Custodial Interrogation
Miranda: Fifth Amendment requires warnings before custodial interrogation. Custody = reasonable person would not feel free to leave. Interrogation = words/actions reasonably likely to elicit incriminating response.
Invocation of Right to Counsel
Invoking right to counsel: request must be unambiguous and unequivocal ("I want a lawyer"). Ambiguous references ("maybe I should get a lawyer") do NOT trigger Edwards protection.
Exclusionary Rule
Exclusionary Rule
Exclusionary rule: evidence obtained in violation of the Fourth, Fifth, or Sixth Amendment is inadmissible at trial. Primary remedy for unconstitutional searches and seizures. Extends to derivative evidence under the fruit of the poisonous tree doctrine.
Fruit of the Poisonous Tree
Fruit of the poisonous tree: evidence derived from an illegal search/seizure is also inadmissible. Exceptions: (1) independent source, (2) inevitable discovery, (3) attenuation of taint.
Fox's Homicide Liability (First-Degree Murder & Voluntary Manslaughter)
Premeditation and Deliberation
First-degree murder: willful, deliberate, and premeditated killing. Premeditation = defendant reflected on the decision to kill, even if only briefly (no minimum time).
Adequate Provocation
Voluntary manslaughter requires: (1) an intentional killing, (2) committed in the heat of passion, (3) upon adequate provocation that would cause a reasonable person to lose self-control, (4) without a cooling-off period.
No Cooling-Off Period
Provocation is negated if a reasonable person would have had sufficient time to cool between the provocative act and the killing. Provocation is also weakened where the defendant was the initial aggressor committing a violent felony.
Badger's Liability for Felony Murder
Felony Murder Rule
The felony murder rule imposes murder liability on all participants in an inherently dangerous felony (BARRK: Burglary, Arson, Rape, Robbery, Kidnapping) when a killing occurs during its commission, regardless of intent to kill.
In Furtherance of Felony
Killing must occur during the commission of AND in furtherance of the felony. Applies from start of felony through escape to a place of temporary safety.
Badger's Liability via Conspiracy (Pinkerton Rule)
Conspiracy Formation
Conspiracy requires: (1) an agreement between two or more persons, (2) intent to enter the agreement, (3) intent to achieve the unlawful objective, and (4) in most jurisdictions, an overt act in furtherance of the conspiracy.
Pinkerton Liability
Under the Pinkerton doctrine, a co-conspirator is vicariously liable for all crimes committed by fellow conspirators if those crimes were committed in furtherance of the conspiracy and were a natural and probable (foreseeable) consequence of the conspiratorial agreement.
Fourth Amendment - Warrant Validity & Good Faith
Particularity Requirement
The Fourth Amendment requires that a warrant particularly describe the place to be searched and the persons or things to be seized. A warrant with a wrong address fails the particularity requirement as to the actual place searched.
Good-Faith Exception
Evidence is admissible when officers act in objectively reasonable reliance on a facially valid warrant later found defective. Does NOT apply if: (1) warrant was bare-bones, (2) obtained by fraud, or (3) facially deficient.
Fourth Amendment - Plain View Doctrine
Plain View Doctrine Elements
Plain view doctrine: police may seize contraband without a warrant if: (1) officers are lawfully present at the location, (2) they have lawful right of access to the item, and (3) its incriminating character is immediately apparent.
Sixth Amendment - Right to Counsel
Attachment of Right to Counsel
Sixth Amendment right to counsel attaches at initiation of formal adversarial proceedings: (1) indictment, (2) arraignment, (3) preliminary hearing, (4) formal charge. Offense-specific.
Offense-Specific Nature
Attaches only to the charged offense. Does NOT extend to uncharged crimes, even if factually related.
Deliberate Elicitation
Once the Sixth Amendment right to counsel has attached, the government may not deliberately elicit incriminating statements from a represented defendant without counsel present or a valid waiver of that right.
Solicitation and Conspiracy
Solicitation
Inciting, counseling, or commanding another to commit a crime, with specific intent they complete it. Merges into conspiracy if the person agrees. Merges into the target crime if completed.
Conspiracy
Conspiracy requires: (1) an agreement between two or more persons, (2) intent to enter the agreement, (3) intent to achieve the unlawful objective, and (4) in most jurisdictions, an overt act in furtherance of the conspiracy.
Merger Doctrine
Solicitation merges into conspiracy once the solicited party agrees. Cannot be convicted of both solicitation AND the resulting conspiracy (same transaction).
Attempted Burglary
Attempt
Criminal attempt requires: (1) specific intent to commit the target crime, and (2) a substantial step that is strongly corroborative of criminal purpose; mere preparation is insufficient, but acts like providing tools or transportation qualify.
Abandonment Defense
Abandonment is a complete defense to attempt only if: (1) the defendant voluntarily and completely renounces the criminal purpose, and (2) that renunciation is not motivated by fear of apprehension, increasing difficulty, or other external factors.
Accomplice Liability for Assault
Accomplice Liability
One who aids, counsels, or encourages before or during the crime, with intent to assist. Liable for (1) target offense, (2) foreseeable crimes in furtherance.
Natural and Probable Consequences
Under the natural and probable consequences doctrine, an accomplice is liable not only for the intended crime but also for any additional crimes committed by the principal that were a foreseeable consequence of the criminal enterprise.
Pinkerton Liability
Under Pinkerton, a conspirator is vicariously liable for all reasonably foreseeable crimes committed by co-conspirators in furtherance of the conspiracy.
Withdrawal Defense
An accomplice may withdraw by: (1) repudiating prior encouragement, (2) doing all that is possible to neutralize prior assistance, and (3) acting before the chain of events becomes unstoppable; mere change of heart is insufficient.
Mink's Theft Crimes
Larceny
Larceny requires: (1) trespassory taking, (2) and carrying away, (3) of personal property of another, (4) with intent to permanently deprive; an employee who takes merchandise exceeds mere custody and commits larceny, not embezzlement.
Embezzlement
Embezzlement: fraudulent conversion of property by someone already in LAWFUL possession (trustee, employee, agent). Key distinction from larceny: lawful initial possession, then conversion.
Custody vs. Possession
Larceny vs. embezzlement distinction: Employee with mere custody (low-level, temporary access) = larceny. Person with lawful possession (entrusted, authorized) = embezzlement.
Fox's Theft Crimes
Receiving Stolen Property
Receiving stolen property requires: (1) receiving possession and control of stolen personal property, (2) with knowledge that it was stolen, (3) with intent to permanently deprive the true owner.
Larceny by False Pretenses
False pretenses requires: (1) a false representation of past or existing fact, (2) knowingly made, (3) with intent to defraud, (4) causing the victim to pass title to property; distinguished from larceny by trick, where only possession passes.
Badger's Crimes and Defenses
Statutory Burglary
Modern burglary: breaking and entering any structure (not just dwelling) with intent to commit a felony inside. Nighttime requirement eliminated in most jurisdictions.
Battery
Battery: unlawful application of force to another, causing bodily injury or offensive touching. Aggravated battery: (1) serious bodily injury, OR (2) use of a dangerous weapon.
Self-Defense
Self-defense: non-aggressor may use force reasonably necessary to prevent imminent unlawful force. Deadly force: only against deadly threat. Retreat: majority = no duty; minority = retreat if safe (castle exception).
Defenses to Attempted Murder (Specific Intent)
Specific Intent Crime
Attempted murder: specific intent crime. Prosecution must prove D had the actual, subjective intent to bring about death. Recklessness or extreme indifference is NOT enough for attempt.
Involuntary Intoxication
Involuntary intoxication is a complete defense to any crime if it negates the required mens rea. It arises when intoxication occurs without the defendant's knowledge or consent, such as through prescribed medication with undisclosed psychotic side effects.
Mistake of Fact (Specific Intent)
ANY mistake - reasonable or unreasonable - is a defense if it negates the required specific intent.
Defenses to Aggravated Assault (General Intent)
General Intent Crime
Requires only intent to perform the act (not intent to cause a specific result). Voluntary intoxication NOT a defense to general intent (only insanity-level intoxication).
Involuntary Intoxication as Insanity
Complete defense if it produces a mental state satisfying the insanity test. Applies to ALL crimes (general and specific intent). Voluntary intoxication: only negates specific intent.
MPC Insanity Test
The MPC insanity test (substantial capacity test) excuses criminal liability if, due to mental disease or defect, the defendant lacked substantial capacity to appreciate the criminality of their conduct or to conform conduct to the requirements of law.
Strongest Defense Analysis
Mistake of Fact (General Intent)
Only a REASONABLE mistake is a defense. Unreasonable mistake does not negate general intent. Compare: any mistake (even unreasonable) negates specific intent.
Scope of Involuntary Intoxication Defense
Involuntary intoxication is a complete defense to both specific and general intent crimes when it produces a mental state satisfying the insanity standard, making it stronger than mistake of fact for general intent charges.
Identification Procedures
Right to Counsel at Lineups
6th Amendment right to counsel at lineups (Wade): applies to post-indictment, in-person (corporeal) ID procedures. Does NOT apply to photo arrays or pre-indictment lineups.
No Right to Counsel at Photo Arrays
The Sixth Amendment right to counsel does not extend to photographic identification procedures, whether pre- or post-indictment, because a photo array is not a critical stage of criminal proceedings.
Due Process Limitation on Identifications
Under the Fourteenth Amendment Due Process Clause, an identification procedure is inadmissible if it is so unnecessarily suggestive that it creates a very substantial likelihood of irreparable misidentification.
Reliability Factors for Suggestive ID
Suggestive ID reliability factors: (1) witness's opportunity to view, (2) degree of attention, (3) accuracy of prior description, (4) witness's certainty, (5) time between event and ID.
Double Jeopardy
General Bar on Retrial
The Fifth Amendment Double Jeopardy Clause bars: (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense in a single proceeding.
Attachment of Jeopardy
Jeopardy attaches: Jury trial = when jury is empaneled and sworn. Bench trial = when first witness is sworn. Before attachment, case can be dismissed without double jeopardy.
Exception for Defendant's Appeal
Double jeopardy and appeals: retrial allowed when D wins appeal for trial error. Retrial BARRED when reversal was for insufficient evidence (= acquittal equivalent).
Confrontation Clause
Confrontation Clause
Confrontation (Crawford): Testimonial hearsay inadmissible unless (1) declarant unavailable AND (2) defendant had prior opportunity to cross-examine. Non-testimonial = evidence rules only.
Testimonial Statements
Testimonial statement (Crawford): made with primary purpose of creating evidence for prosecution. Testimonial = confrontation required. Non-testimonial = hearsay rules only.
Primary Purpose Test
Testimonial vs. non-testimonial: a statement is non-testimonial if the primary purpose is enabling police to meet an ongoing emergency. Testimonial if the primary purpose is to establish past facts for prosecution.
Fourth Amendment: Stop and Frisk
Terry Stop Standard
Terry stop: Officer may briefly detain a person based on reasonable articulable suspicion of criminal activity. Less than probable cause but more than a hunch.
Anonymous Tip Reliability
Anonymous tip alone is insufficient for reasonable suspicion. Must be corroborated by police observation or include accurate predictive details.
Terry Frisk Standard
Terry frisk: During a lawful stop, officer may pat down outer clothing if reasonable belief person is armed and dangerous. Limited to weapons, not evidence.
Plain Feel Doctrine
Plain feel doctrine: if during a lawful pat-down an officer feels an object whose identity as contraband is immediately apparent without manipulation, the officer may seize it.
Fifth Amendment: Self-Incrimination
Testimonial vs. Physical Evidence
5th Amendment privilege: protects only against compelled TESTIMONIAL (communicative) evidence. Does NOT protect physical evidence: blood draws, fingerprints, handwriting samples, lineups.
Post-Miranda Silence
Post-arrest silence: prosecution cannot use defendant's silence after receiving Miranda warnings to impeach or as evidence of guilt.
Eighth Amendment: Cruel and Unusual Punishment
Mandatory LWOP for Juvenile Homicide Offenders
The Eighth Amendment prohibits mandatory life-without-parole sentences for juvenile homicide offenders; the sentencer must have discretion to consider the offender's youth and its attendant circumstances.
LWOP for Juvenile Non-Homicide Offenders
The Eighth Amendment categorically prohibits life without parole for juvenile offenders convicted of non-homicide offenses.
Homicide Causation
Actual Cause
"but for" D's conduct, the harm would not have occurred. Must be satisfied before proximate cause. Alternative: substantial factor test (multiple sufficient causes).
Proximate Cause
Proximate cause (legal cause) requires that the result be a natural and probable consequence of the defendant's conduct, with no superseding intervening cause that breaks the causal chain.
Intervening Cause Rule
Foreseeable intervening cause (e.g., medical negligence) does NOT break the chain. Only a SUPERSEDING cause (unforeseeable, extraordinary) breaks proximate causation.
Arson
Malice
Satisfied by (1) intent to burn a structure, OR (2) reckless disregard of an obvious risk that the structure would burn. No specific victim required.
Modern Statutory Arson
Extends beyond common law to include (1) burning any structure (not just dwellings), (2) burning one's own property to defraud an insurer (insurance fraud).
Common Law Arson
Malicious burning of the dwelling of another. Modern statutes expand to: (1) any structure (not just dwelling), (2) one's own property (for insurance fraud).
Aggravated Battery
Battery
Battery is the unlawful application of force to the person of another, resulting in bodily injury or an offensive touching; it is a general intent crime requiring only intent to perform the act.
Intent for Battery
Battery intent may be satisfied by: (1) general intent to commit the act, (2) transferred intent, or (3) constructive intent, where malice from an underlying felony such as arson supplies the required mens rea for the resulting battery.
Aggravating Factors
A battery is elevated to aggravated battery when it results in serious bodily injury, is committed with a deadly weapon, or is perpetrated against a protected person such as a police officer or firefighter.
Evidence
Hearsay — Fire Investigator's Report
Hearsay Definition
Hearsay is an out-of-court statement offered to prove the truth of the matter asserted, made by a declarant who is a person.
Public Records Exception (FRE 803(8))
Records of a public office are admissible if they set out factual findings from a legally authorized investigation, unless the opponent shows a lack of trustworthiness.
Hearsay — Overheard Phone Call
Unidentified Declarant Problem
A hearsay exception may apply regardless of whether the declarant is identified, but authentication and foundation requirements may still bar the statement.
Present Sense Impression (FRE 803(1))
Present sense impression (803(1)): Statement describing an event made while or immediately after perceiving it. No excitement needed (contrast with excited utterance).
Character Evidence and Prior Acts
Propensity Ban (FRE 404(a))
Propensity ban: cannot use character evidence to show "they did it before, so they did it again." Exception: MIMIC purposes, and criminal D opening the door.
Prior Acts for Non-Propensity Purpose (FRE 404(b)(2))
Other acts evidence exceptions - prior acts admissible for MIMIC purposes: (1) Motive, (2) Intent, (3) absence of Mistake, (4) Identity, (5) Common plan/scheme. Must give notice.
Party Admission — Text Message
Opposing Party Statement (FRE 801(d)(2))
A statement offered against an opposing party, made by that party in an individual capacity, is not hearsay (opposing party statement exclusion).
Authentication (FRE 901)
Authentication: proponent must show evidence sufficient to support a finding the item is what they claim. Methods: witness with knowledge, distinctive characteristics, voice ID.
Attorney-Client Privilege
Elements of Attorney-Client Privilege
Attorney-client privilege: Protects (1) confidential communications, (2) between attorney and client, (3) for purpose of seeking/providing legal advice. Client holds the privilege.
Corporate Privilege
In federal court, the privilege extends to communications between corporate employees and counsel made to enable the attorney to provide legal advice to the corporation, regardless of the employee's position.
Crime-Fraud Exception
Crime-fraud exception: Privilege does not protect communications made to further a current or future crime or fraud, even if the attorney didn't know.
Impeachment with Prior Conviction
Crimes of Dishonesty (FRE 609(a)(2))
Conviction for a crime of dishonesty (fraud, perjury, false statement) is automatically admissible for impeachment regardless of the punishment level.
10-Year Time Limit (FRE 609(b))
Evidence of a conviction is generally inadmissible if more than 10 years have passed since the conviction or release from confinement, whichever is later.
Expert Testimony
FRE 702 Requirements
Expert testimony is admissible if (1) specialized knowledge helps trier of fact, (2) based on sufficient facts/data, (3) reliable principles and methods, (4) reliably applied to the case.
Daubert Factors for Reliability
Daubert reliability factors: (1) theory is testable, (2) peer review/publication, (3) known error rate, (4) standards/controls, (5) general acceptance in the field.
Character Evidence - Reputation Testimony
Propensity Ban (FRE 404(a)(1))
Character evidence ban: evidence of a person's character is NOT admissible to prove they acted in conformity with that character on a particular occasion.
Mercy Rule (FRE 404(a)(2))
In a criminal case, the prosecution cannot introduce evidence of a defendant's bad character unless the defendant first opens the door by offering evidence of a pertinent good character trait.
Impeachment (FRE 608)
Reputation or opinion testimony about a witness's character for untruthfulness is admissible to impeach. Cannot use specific instances on direct (only on cross).
Prior Bad Acts
Prior Acts Propensity Ban (FRE 404(b)(1))
Other acts evidence rule: prior crimes/bad acts are NOT admissible to show propensity (person acted in conformity). Inadmissible to prove "once a thief, always a thief."
Permitted Uses of Prior Acts (FRE 404(b)(2))
Prior acts admissible for non-propensity purposes: MIMIC - (1) Motive, (2) Intent, (3) absence of Mistake/accident, (4) Identity (modus operandi), (5) Common plan or scheme.
FRE 403 Balancing for Prior Acts
Even if admissible under the other acts evidence rule, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.
Relevance and Unfair Prejudice
Test for Relevance (FRE 401)
Relevance: evidence is relevant if it has any tendency to make a fact of consequence more or less probable. Very low threshold - does not require proof.
Exclusion for Prejudice (FRE 403)
Relevance balancing: relevant evidence may be excluded if probative value is SUBSTANTIALLY outweighed by: unfair prejudice, confusion, misleading jury, undue delay, waste of time, or cumulative evidence.
Witness's Prior Inconsistent Statement
Hearsay Definition
Hearsay is an out-of-court statement offered to prove the truth of the matter asserted in the statement.
Prior Inconsistent Statement Exclusion
A prior statement is not hearsay and is admissible as substantive evidence if: the declarant testifies and is subject to cross-examination, the statement is inconsistent with the declarant's testimony, and the statement was given under oath at a prior trial, hearing, or deposition.
Business Records Exception
Hearsay Definition
Hearsay is an out-of-court statement offered to prove the truth of the matter asserted.
Business Records Exception
Business records exception: admissible if (1) made at/near the time, (2) by person with knowledge, (3) regular business activity, (4) regular practice to make it, (5) trustworthy source/method.
Hearsay Within Hearsay
Business record containing an embedded out-of-court statement: each hearsay layer needs its own exception. The business record exception covers only the record itself.
Statement Against Interest Exception
Declarant Unavailability
The statement against interest exception requires the declarant to be unavailable; a deceased declarant satisfies this requirement.
Statement Against Interest Rule
A statement is admissible if the declarant is unavailable and the statement was so contrary to the declarant's pecuniary or proprietary interest, or exposed the declarant to civil or criminal liability, that a reasonable person would not have made it unless believing it true.
Confrontation Clause & Hearsay
Crawford Rule
The Confrontation Clause bars admission of testimonial statements by a non-testifying declarant unless the declarant is unavailable and the defendant had a prior opportunity for cross-examination.
Primary Purpose Test
Statements made during police interrogation are non-testimonial when the primary purpose is to enable police assistance to meet an ongoing emergency, and testimonial when the primary purpose is to establish past events for later prosecution.
Hearsay Exception for 911 Call (FRE 803(1)/(2))
A 911 call that is non-testimonial still requires a hearsay exception; the excited utterance exception admits statements relating to a startling event made while under the stress of that event.
Spousal Privileges
Spousal Testimonial Privilege
Spousal testimonial privilege (criminal): Witness-spouse may refuse to testify against defendant-spouse. Covers all testimony (not just communications). Privilege belongs to witness-spouse.
Marital Communications Privilege
Marital communications privilege: Covers confidential communications made during marriage. Survives divorce. Either spouse may invoke. Does NOT cover observations or acts.
Public Policy Exclusions
Subsequent Remedial Measures (FRE 407)
Subsequent remedial measures are inadmissible to prove negligence or product defect. Admissible for: (1) ownership/control, (2) feasibility (if disputed), (3) impeachment.
Compromise Offers and Negotiations (FRE 408)
Evidence of compromise offers, and conduct or statements made during compromise negotiations, is inadmissible to prove or disprove the validity or amount of a disputed claim.
Offers to Pay Medical Expenses (FRE 409)
Evidence of an offer or promise to pay medical expenses is inadmissible to prove liability for the injury.
Authentication of Email
Authentication Requirement (FRE 901(a))
Authentication: the proponent must produce evidence sufficient to support a finding that the item is what they claim it is. Low bar - just enough for the jury.
Authentication Methods (FRE 901(b))
Authentication methods: (1) witness with knowledge, (2) distinctive characteristics (appearance, contents, patterns), (3) voice identification, (4) comparison by expert or jury.
Reply Doctrine
A writing may be authenticated by evidence that it was written in reply to a communication, with contents making it unlikely to have been written by anyone other than the purported author.
Best Evidence Rule / Summary of Records
Original Writing Rule (FRE 1002)
An original writing, recording, or photograph is required in order to prove its content.
Summaries of Voluminous Records (FRE 1006)
Summary evidence exception: a party may use a summary/chart to prove voluminous writings, provided (1) originals are available for examination, (2) summary is accurate and fair.
Impeachment of Witness
Prior Inconsistent Statement (FRE 613)
Prior inconsistent statement: may impeach any witness. Extrinsic evidence allowed if witness gets chance to explain. If under oath at proceeding = also substantive.
Impeachment for Bias or Interest
Impeachment by bias: always admissible to show a witness has a motive to testify favorably (financial interest, relationship, plea deal). No FRE rule - case law.
Public Records Exception
Hearsay Definition
Hearsay is an out-of-court statement offered to prove the truth of the matter asserted.
Public Records Exception (FRE 803(8))
Records of a public office are admissible in a civil case if they set out factual findings from a legally authorized investigation, unless the opponent shows a lack of trustworthiness.
Trustworthiness Requirement
The public records exception is inapplicable if the opponent shows that the source of information or other circumstances indicate a lack of trustworthiness.
Learned Treatise Exception
Learned Treatise Exception (FRE 803(18))
A statement in a learned treatise is admissible if called to the attention of an expert on cross-examination and the publication is established as a reliable authority by the expert or judicial notice.
Manner of Admissibility
If admitted under the learned treatise exception, the statement may be read into evidence but may not be received as a physical exhibit.
Forfeiture by Wrongdoing
Forfeiture by Wrongdoing (FRE 804(b)(6))
Forfeiture by wrongdoing: hearsay admitted against a party who intentionally caused the declarant's unavailability. Waives both hearsay objection and Confrontation Clause rights.
Declarant Unavailability (FRE 804(a))
Declarant is unavailable if: (1) privilege claimed, (2) refuses to testify, (3) lacks memory, (4) dead or too ill, (5) absent and cannot be procured by process.
Intent to Procure Unavailability
The forfeiture exception requires that the wrongdoing was specifically intended to prevent the declarant from testifying.
Hearsay Within Hearsay (FRE 805)
Hearsay within hearsay: each layer must independently qualify under an exception or exclusion. If any layer fails, the entire statement is inadmissible.
Psychotherapist-Patient Privilege
Scope of Privilege
Under federal common law, confidential communications between a patient and a licensed psychotherapist for the purpose of diagnosis or treatment are privileged from disclosure.
Patient-Litigant Exception
The psychotherapist-patient privilege is waived when the patient voluntarily places their own mental or emotional condition at issue in the litigation.
Rape Shield - Victim's Prior Sexual Conduct
Rape Shield General Prohibition
The rape shield rule generally prohibits evidence of an alleged victim's other sexual behavior or sexual predisposition in a criminal proceeding involving sexual assault.
Rape Shield Exception for Consent
The rape shield rule provides an exception allowing specific instances of an alleged victim's sexual behavior with the accused to be admitted to prove consent.
Conduct with Third Parties
Evidence of a victim's sexual behavior with persons other than the accused is generally inadmissible to prove consent under the rape shield rule.
Work Product Doctrine
Work Product Definition
The work product doctrine protects documents and tangible things prepared by a party or its representative in anticipation of litigation or for trial.
Opinion Work Product
Attorney's mental impressions, conclusions, opinions, and legal theories receive near-absolute protection. Discoverable only in extraordinary circumstances.
Ordinary Work Product
Ordinary work product is discoverable only upon a showing of substantial need and inability to obtain the substantial equivalent without undue hardship.
Lay Opinion Testimony
FRE 701 Standard
Lay opinion is admissible if: (1) rationally based on the witness's perception, (2) helpful to the trier of fact, and (3) not based on scientific or other specialized knowledge.
Common Lay Opinions
Common lay opinions: (1) vehicle speed, (2) intoxication, (3) emotional state, (4) handwriting identification, (5) value of one's own property.
Judicial Notice
Adjudicative Fact Standard (FRE 201)
A court may judicially notice a fact not subject to reasonable dispute because it is generally known within the court's territorial jurisdiction, or can be accurately determined from sources whose accuracy cannot reasonably be questioned.
Effect in a Civil Case
In a civil case, a court that takes judicial notice of a fact must instruct the jury to accept that fact as conclusive.
Witness Competency and Dead Man's Statute
FRE 601 in Diversity Cases
In a civil diversity case, state law governs the competency of a witness regarding a claim or defense for which state law supplies the rule of decision.
Dead Man's Statute
A Dead Man's Statute renders an interested party incompetent to testify about a transaction or communication with a deceased person when offered against the representative of the deceased's estate.
Real Property
Easement by Implication from Prior Use
Severance of Common Ownership
An easement by implication requires prior common ownership of the dominant and servient parcels, and subsequent severance of that common ownership.
Apparent and Continuous Prior Use
Before severance, there must have been an apparent and continuous use of one part of the tract that benefited another part.
Reasonable Necessity
The easement by implication requires that continued use be reasonably necessary for the enjoyment of the dominant estate at the time of severance.
Recording Act and Bona Fide Purchaser
Race-Notice Statute
A subsequent BFP prevails over a prior unrecorded interest only if the BFP (1) paid value, (2) took without notice, AND (3) recorded first.
Bona Fide Purchaser (BFP)
Takes (1) for valuable consideration, (2) in good faith, (3) without notice (actual, constructive from records, or inquiry from possession) of prior claims.
Inquiry Notice
Inquiry notice arises from visible facts that would prompt a reasonable person to investigate, such as another's open possession or an obvious path across the land.
Adverse Possession
Elements of Adverse Possession
(1) actual possession, (2) exclusive, (3) open and notorious, (4) hostile/adverse (without permission), (5) continuous for the statutory period.
Statutory Period
Adverse possession: possession must be continuous and uninterrupted for the full statutory period. Tacking allowed if privity exists between successive possessors.
Present and Future Interests
Fee Simple Determinable
Automatically ends when stated event occurs. Durational language: "so long as," "while," "during," "until." Grantor retains possibility of reverter.
Durational Language
"so long as," "while," "during," "until." These words create automatic termination. Future interest: possibility of reverter (automatic).
Possibility of Reverter
After a fee simple determinable, the grantor retains a possibility of reverter, which becomes possessory automatically when the stated condition occurs.
Enforcement of Restrictive Covenant
Equitable Servitude Creation
Binds successors if (1) writing (SOF), (2) intent to bind successors, (3) touch and concern the land, (4) notice (actual, constructive, or inquiry). No privity required.
Equitable Servitude Remedy
The primary remedy for breach of an equitable servitude is an injunction, not money damages.
Implied Reciprocal Negative Servitude
In a planned subdivision, covenants from a common scheme are mutually enforceable among all lot owners who purchased with notice of the restrictions.
Landlord-Tenant: Implied Warranty of Habitability
Implied Warranty of Habitability (IWH)
Landlord has a non-waivable duty to maintain residential premises in a habitable condition meeting housing code standards.
Breach of IWH
A breach occurs when a substantial defect renders the premises unsafe or unhealthy, and the landlord fails to remedy it after receiving written notice from the tenant.
Tenant's Remedies for IWH Breach
IWH breach remedies (after notice + reasonable cure time): (1) terminate and vacate, (2) repair and deduct from rent, (3) withhold rent until repairs made.
Statute of Frauds and Part Performance
Statute of Frauds for Land
A contract for the sale of an interest in land must be in a signed writing to be enforceable, under the Statute of Frauds.
Part Performance Exception
Part performance (takes oral land contract out of SOF): buyer must show at least 2 of 3: (1) paid part of purchase price, (2) took possession, (3) made improvements.
Deed Covenants and Marketable Title
Implied Covenant of Marketable Title
Every land sale contract contains an implied covenant that the seller will deliver marketable title at closing, meaning title reasonably free from doubt and encumbrances.
Merger Doctrine
At closing, the contract merges into the deed. Buyer's rights governed by the deed covenants, not the prior contract. Exception: fraud or express survival clause.
Quitclaim Deed
Transfers whatever interest the grantor has, if any. No warranties. Buyer bears all risk of title defects.
Mortgage Foreclosure and Priority
Priority of Interests
First in time, first in right (default). Exceptions: (1) purchase money mortgage has super-priority, (2) recording acts may elevate a later-recorded BFP.
Effect of Foreclosure
A senior lienholder's foreclosure extinguishes all junior liens and interests, and the purchaser at the sale takes title free of those junior claims.
Distribution of Foreclosure Proceeds
(1) sale costs, (2) senior foreclosing mortgagee, (3) junior lienholders in priority order, (4) any surplus to the debtor/owner.
Cotenancy and Severance
Joint Tenancy Creation
A joint tenancy requires four unities: time, title, interest, and possession, plus an express right of survivorship.
Severance by Conveyance
A joint tenant's inter vivos conveyance of their interest severs the joint tenancy as to that share, converting it to a tenancy in common.
Severance by Mortgage
Lien theory (majority) = mortgage is just a lien, does NOT sever. Title theory = mortgage transfers title, DOES sever.
Prescriptive Easement
Elements of Prescriptive Easement
(1) open and notorious use, (2) adverse/hostile (without permission), (3) continuous, (4) for the statutory period. Like adverse possession but for USE, not ownership.
Scope of Prescriptive Easement
The scope of a prescriptive easement is limited to the nature and extent of the use that occurred during the prescriptive period.
Zoning and Variance
Use Variance Standard
(1) unnecessary hardship (property cannot earn reasonable return under current zoning), (2) unique hardship to this property (not the whole neighborhood), (3) no alteration of essential character of the area.
Spot Zoning
Singling out a small parcel for treatment inconsistent with the surrounding area's comprehensive plan. Invalid because it lacks a rational basis in the overall zoning scheme.
Rule Against Perpetuities
Common Law RAP
Rule Against Perpetuities: No interest is valid unless it must vest, if at all, within 21 years after a life in being at creation. If ANY scenario could violate = void.
Class Gift Rule (All-or-Nothing)
Under RAP, a class gift is entirely void if the interest of any possible class member might vest outside the perpetuities period.
Wait-and-See Doctrine
Instead of voiding at creation, courts wait to see if the interest actually vests within the perpetuities period. Saves otherwise void interests.
Fixtures and Trade Fixtures
Fixture Test
(1) degree of annexation (how attached), (2) adaptation to the realty's use, (3) objective intent of the annexor (permanent or temporary?).
Trade Fixture Exception
A commercial tenant may remove trade fixtures installed for business purposes before lease expiration, provided removal does not cause substantial damage to the premises.
Title Insurance Coverage
Scope of Title Insurance
Protects against losses from title defects, liens, and encumbrances existing at policy date. Does NOT cover defects arising after the policy.
Inspection Exclusion
Title policies typically exclude coverage for encumbrances not in the public records but discoverable by physical inspection of the property or by inquiry of persons in possession.
Landlord-Tenant: Abandonment and Duty to Mitigate
Tenant Abandonment
(1) vacates without justification, (2) shows no intent to return, (3) defaults on rent.
Landlord's Duty to Mitigate (Majority Rule)
Under the majority rule, a landlord whose tenant abandons must make reasonable efforts to re-let the premises, and can recover only the difference between the promised rent and any rent obtained or obtainable.
Easements: Scope and Overburdening
Scope of an Easement
The scope of an express easement is determined by the grant's language and, if ambiguous, by the intent of the original parties and the purpose of the easement at creation.
Overburdening an Easement
Holder's use exceeds what original parties contemplated and unreasonably interferes with servient estate. Remedy: injunction limiting use to original scope.
Recording Acts: Forged Deeds and BFPs
Forged Deed is Void
A forged deed is void ab initio, conveying no interest in land and incapable of being validated by recording.
Bona Fide Purchaser (BFP)
A bona fide purchaser takes for valuable consideration and without actual, constructive, or inquiry notice of any prior interest.
Recording Acts and Void Deeds
Recording acts do NOT validate void deeds. A forged deed is void regardless of BFP status. Recording acts only protect BFPs against prior UNRECORDED interests.
Mortgagee's Rights Prior to Foreclosure
Acceleration on Default
Allows the lender to declare the entire loan balance immediately due upon borrower's default (missed payment, breach of condition).
Due-on-Sale Clause
A due-on-sale clause is generally enforceable and allows the lender to accelerate the loan when the mortgaged property is transferred without the lender's consent.
Appointment of Receiver
On a mortgagor's default, a court may appoint a receiver to collect rents and preserve the property, particularly when the mortgage agreement expressly provides for such appointment.
Grantee's Liability for Mortgage Debt
Taking Subject To a Mortgage
A grantee who takes property subject to an existing mortgage assumes no personal liability for the debt, though the property remains security and may be lost in foreclosure.
Assuming a Mortgage
A grantee who assumes a mortgage becomes personally and primarily liable for the debt, while the original mortgagor becomes a surety secondarily liable.
Equitable Conversion and Risk of Loss
Equitable Conversion
Once a specifically enforceable land sale contract is signed, buyer holds equitable title and bears risk of loss. Seller holds bare legal title in trust for buyer.
UVPRA (Minority Rule)
The Uniform Vendor and Purchaser Risk Act keeps risk of loss with the seller until the buyer takes possession or legal title, reversing the equitable conversion common law rule.
Allocation of Insurance Proceeds
When the buyer bears the risk of loss and the seller holds insurance, the majority rule places the proceeds in a constructive trust for the buyer, credited against the purchase price.
Defeasible Fees and Future Interests
Fee Simple Subject to Executory Limitation
A fee simple subject to an executory limitation automatically terminates upon a stated event, and the property then shifts to a third person rather than reverting to the grantor.
Shifting Executory Interest
A shifting executory interest is a future interest in a third party that cuts short a prior transferee's estate upon occurrence of a specified condition.
Vested and Contingent Remainders
Contingent Remainder
A remainder is contingent if it is in an unascertained person or is subject to a condition precedent beyond the natural termination of the preceding estate.
Condition of Survivorship
A gift to beneficiaries who must survive the life tenant creates contingent remainders, and any beneficiary who predeceases the life tenant takes nothing.
Powers of Appointment and Creditors' Rights
General Power of Appointment
Donee may appoint to (1) herself, (2) her estate, or (3) her creditors, without restriction. Contrast: special power excludes these.
Creditors' Rights to Appointive Property
In most states, creditors of a donee who holds a general power of appointment may reach the appointive assets to satisfy their claims, particularly when the power has been exercised.
Exercise by Residuary Clause
A residuary clause that expressly refers to property subject to a power of appointment is sufficient to constitute an exercise of that general power.
Implied Warranty of Habitability
IWH Standard
Implied warranty of habitability (residential): Landlord warrants premises are fit for human habitation. Non-waivable. Tenant must notify landlord and allow reasonable time to repair.
Tenant's Remedies for Breach of IWH
IWH breach remedies (after notice + reasonable cure time): (1) terminate and vacate, (2) repair and deduct from rent, (3) withhold rent until repairs made.
Fair Housing Act Discrimination
FHA Prohibited Discrimination
Fair Housing Act protected classes: (1) race, (2) color, (3) religion, (4) sex, (5) national origin, (6) disability, (7) familial status.
Mrs. Murphy Exemption
The FHA exempts owner-occupied buildings with four or fewer units from most prohibitions, provided the owner does not use discriminatory advertising or statements.
Right of First Refusal
Right of First Refusal (ROFR)
A right of first refusal is a preemptive right entitling the holder to purchase property on the same terms as any bona fide third-party offer, before the owner may accept it.
Remedy for Breach of ROFR
When an owner sells without honoring a right of first refusal, the holder may seek specific performance to compel a sale on the same terms, especially if the third-party buyer had notice of the right.
Torts
Negligence — Duty and Breach
Duty of Care
A defendant owes a duty of reasonable care to all foreseeable plaintiffs who may be harmed by the defendant's conduct.
Breach
A defendant breaches the duty of care by failing to act as a reasonably prudent person would under the same or similar circumstances.
Strict Products Liability — Design Defect
Design Defect (Restatement Third)
A product has a design defect when foreseeable risks could have been reduced by a reasonable alternative design (RAD) whose omission makes the product unreasonably unsafe.
Commercial Seller Liability
Every commercial seller or distributor in the chain of distribution is subject to strict liability for physical harm caused by a defective product.
Proximate Cause and Intervening Acts
Proximate Cause
A defendant's conduct is the proximate cause of harm if the harm was a foreseeable result of the defendant's negligence, with no unforeseeable superseding cause breaking the chain.
Foreseeable Plaintiff (Bystander)
A bystander is a foreseeable plaintiff when product failure could foreseeably cause harm beyond the immediate user, especially in an environment where bystanders are present.
Comparative Fault and Defenses
Pure Comparative Fault
P's damages reduced by their % of fault but recovery is NEVER completely barred. Even a 99%-at-fault P recovers 1%.
Assumption of Risk
P voluntarily encountered a known risk. In comparative fault jurisdictions, treated as a percentage-reducing factor (not a complete bar). Express assumption (waiver) = complete bar.
Defamation
Defamation Elements
Defamation requires (1) a false defamatory statement of fact, (2) of or concerning the plaintiff, (3) published to a third party, and (4) fault causing damages.
Fault Standard (Public/Private Figure)
Public figure = actual malice (knowledge of falsity or reckless disregard for truth). Private figure = negligence (for matters of public concern).
Libel Per Se
Written statement imputing (1) criminal conduct, (2) loathsome disease, (3) unfitness for business/profession, (4) serious sexual misconduct.
Invasion of Privacy - False Light
False Light Elements
False light invasion of privacy requires (1) the defendant gave publicity (2) placing the plaintiff in a false light (3) highly offensive to a reasonable person.
False Light Fault Standard
For false light claims involving matters of public concern, the plaintiff must prove actual malice -- knowledge of falsity or reckless disregard for the truth.
Distinction from Defamation
False light: protects against dignitary harm from false implication or misleading portrayal. Unlike defamation, does not require proving reputational damage.
Intentional Infliction of Emotional Distress (IIED)
IIED Elements
IIED requires (1) extreme and outrageous conduct, (2) done intentionally or recklessly, (3) causing (4) severe emotional distress to the plaintiff.
Extreme and Outrageous Conduct
Transcends all bounds of decency in civilized society. Elevated by: (1) pattern of harassment, (2) abuse of authority/power, (3) targeting vulnerable person.
Severe Emotional Distress
No reasonable person could be expected to endure it. Evidence: (1) medical treatment, (2) physical manifestations, (3) inability to function normally.
Fox's Torts Against Badger (Assault & Battery)
Battery
Defendant acts with intent to cause harmful or offensive contact (or imminent apprehension), and harmful or offensive contact directly or indirectly results.
Assault
Defendant acts with intent to cause imminent apprehension of harmful or offensive contact, and apprehension directly or indirectly results. Words alone are insufficient without an overt act.
Badger's Defense to Battery Claim by Fox
Self-Defense
A person is privileged to use reasonable force to defend against an imminent harmful or offensive contact that they reasonably believe is about to be inflicted.
Proportional Force
Self-defense force must be proportional to the threat. Deadly force is justified only to repel deadly force (threat of death or serious bodily harm).
Finch's False Imprisonment Claim & Shopkeeper's Privilege
False Imprisonment
False imprisonment is an intentional act confining or restraining another to a bounded area, where the victim is conscious of the confinement or suffers harm from it.
Shopkeeper's Privilege
A shopkeeper may detain a suspect if (1) there is a reasonable belief of theft, (2) the manner of detention is reasonable, and (3) the duration is limited to a reasonable investigation.
Standard of Care and Negligence Per Se
Child Standard of Care
A child is held to the standard of a reasonably prudent child of the same age, intelligence, and experience, not an adult standard.
Adult Activity Exception
An exception applies when a child engages in an inherently dangerous adult activity, such as operating a motor vehicle, subjecting the child to an adult reasonable person standard.
Negligence Per Se
Violation of a statute establishes negligence per se when the plaintiff belongs to the class the statute protects and the harm is the type the statute was designed to prevent.
Res Ipsa Loquitur in Medical Malpractice
RIL Element 1: Inference of Negligence
Res ipsa loquitur requires that the accident be of a kind that ordinarily does not occur absent negligence.
RIL Element 2: Exclusive Control
Res ipsa loquitur requires that the harm-causing instrumentality was within the exclusive control of the defendant at the relevant time.
Effect of Res Ipsa Loquitur
Res ipsa loquitur creates a permissible inference of negligence, allowing plaintiff to survive a directed verdict without direct proof of breach.
Res Ipsa Loquitur with Multiple Potential Tortfeasors
RIL Element 1: Inference of Negligence
Res ipsa loquitur requires that the accident be of a type that ordinarily does not occur absent someone's negligence.
RIL Element 2: Exclusive Control (Modern View)
Modern courts relax the exclusive control requirement, requiring only that the defendant had a right or power of control and that the negligence was probably theirs -- sufficient for landlords with retained inspection rights.
Premises Liability - Landowner's Duty to Child Trespasser
Duty to Trespassers
None to undiscovered trespassers. Known/anticipated trespassers: must warn of artificial, highly dangerous conditions that landowner knows about.
Attractive Nuisance Doctrine
Attractive nuisance: landowner liable to trespassing children when (1) dangerous artificial condition known, (2) children likely to trespass, (3) child lacks appreciation of risk, and (4) utility is slight versus risk.
Negligent Infliction of Emotional Distress (NIED)
Zone of Danger Rule
Under the zone of danger rule, a plaintiff may recover for NIED only if they were within the zone of physical risk and suffered physical manifestation of distress.
Bystander Recovery Rule
A bystander outside the zone of danger may recover for NIED if (1) closely related to the victim, (2) present at the scene, and (3) personally and contemporaneously observed the injury-producing event.
Vicarious Liability - Respondeat Superior
Employee vs. Independent Contractor
Key factor is control. Employer controls employee's manner/method of work. IC controls their own. Only employees trigger respondeat superior.
Frolic vs. Detour
An employer is liable for torts during a minor deviation from employment (detour), but not during a major deviation for personal reasons (frolic) that abandons the employer's business.
Strict Liability for Abnormally Dangerous Activities
Strict Liability for Abnormally Dangerous Activities
Strict liability (no fault needed) attaches when an activity creates a foreseeable, highly significant risk that cannot be eliminated by reasonable care and is uncommon in the community.
Restatement Factors for Abnormally Dangerous Activity
Section 520 factors: (a) high degree of risk. (b) likelihood of great harm. (c) inability to eliminate risk by reasonable care. (d) not a matter of common usage. (e) inappropriate to the location. (f) value outweighed by dangerous attributes.
Products Liability - Manufacturing Defect
Strict Products Liability Rule
A commercial seller who sells a product in a defective condition unreasonably dangerous to the user is strictly liable for physical harm caused by that defect, regardless of fault.
Manufacturing Defect Definition
The product departs from its intended design. Strict liability applies even if the manufacturer used all possible care in production.
Products Liability - Defenses and Warning Adequacy
Adequacy of Warning
Must be sufficient in (1) content, (2) prominence, and (3) clarity. A buried or illegible warning is itself a defect (failure to warn).
Comparative Fault in Strict Liability
P's own negligence reduces but does not bar recovery. P's fault is weighed against the product defect in most jurisdictions.
Causation for Defense
A plaintiff's conduct is only a legally relevant defense if that conduct is an actual and proximate cause of the specific harm suffered.
Nuisance (Private and Public)
Private Nuisance Elements
Private nuisance is a substantial and unreasonable interference with another person's use and enjoyment of their land.
Unreasonableness Balancing Test
Interference is unreasonable when gravity of harm outweighs utility of D's conduct. Factors: (1) severity/duration of harm, (2) economic value, (3) public benefit, (4) practicality of avoiding.
Coming to the Nuisance Defense
Coming to the nuisance is a relevant factor in the balancing test but is not an absolute defense and does not bar recovery outright.
Misrepresentation (Negligent and Fraudulent)
Negligent Misrepresentation
(1) false information, (2) supplied in a business/professional capacity, (3) failure to exercise reasonable care, (4) justifiable reliance, (5) pecuniary loss.
Fraudulent Misrepresentation
(1) false statement of material fact, (2) scienter (knowledge of falsity or reckless disregard), (3) intent to induce reliance, (4) justifiable reliance, (5) damages.
Intentional Interference with Business Relations
Intentional Interference with Contract
Tortious interference with contract requires (1) valid contract, (2) defendant's knowledge, (3) intentional inducement of breach, (4) actual breach, and (5) resulting damages.
Intentional Interference with Prospective Economic Advantage
Interference with prospective economic advantage requires (1) a business expectancy, (2) defendant's knowledge, (3) intentional interference by improper means or motive, (4) disruption of the relationship, and (5) damages.
Improper Means of Interference
Independently tortious or wrongful conduct (defamation, fraud, threats, criminal acts). Legitimate competition is not improper.
Liability of Multiple Tortfeasors
Joint and Several Liability
When multiple tortfeasors cause one indivisible injury, each is liable for the full amount. Plaintiff may collect from any one defendant.
Contribution
A tortfeasor who pays more than their share may recover the excess from co-defendants for their respective shares.
Several Liability (Modern Trend)
Each tortfeasor liable only for their proportionate share of fault. Plaintiff bears the uncollectable share (can't get 100% from one D).
Affirmative Defenses: Assumption of Risk
Express Assumption of Risk
Express assumption of risk occurs when a plaintiff explicitly releases a defendant from liability through a written waiver or exculpatory clause, barring recovery for covered risks.
Public Policy Limitations
Exculpatory clauses are unenforceable when: (1) gross negligence or recklessness, (2) significant bargaining-power disparity, or (3) the defendant provides an essential public service.
Products Liability: Design Defect
Design Defect (Risk-Utility Test)
Product is defective when foreseeable risks of harm could have been reduced by a reasonable alternative design (RAD), and omitting the RAD renders the product not reasonably safe.
Crashworthiness Doctrine
Manufacturer liable for enhanced injuries caused by a design defect that worsens harm in a foreseeable collision, even if the defect did not cause the initial accident.
Government Compliance Defense
Meeting safety regulations is relevant evidence but NOT conclusive. Does not bar a strict liability or negligence claim.
Duty to Act / Special Relationship
No Duty to Rescue
Generally, an actor who did not create a risk has no duty to assist another in peril; there is no affirmative duty to rescue a stranger.
Special Relationship Exception
Special relationship creates a duty to act. Recognized relationships: common carrier-passenger, innkeeper-guest, employer-employee, school-student, business-invitee.
Duty by Undertaking
Someone who begins to render aid owes a duty of reasonable care. Liability arises if stopping makes the person worse off than if no help had been offered.
Negligent Entrustment and Negligent Hiring
Negligent Entrustment
Liability when someone provides a dangerous instrumentality to a person they know (or should know) is likely to use it unsafely.
Negligent Hiring/Supervision
Employer is directly liable when it negligently hired, trained, supervised, or retained an employee it knew (or should have known) was unfit or dangerous.
Wrongful Death and Survival Actions
Wrongful Death Action
Beneficiaries recover for their own losses from the death: (1) loss of financial support, (2) loss of companionship/services, (3) funeral expenses.
Survival Action
The decedent's own claim survives death. Estate recovers pre-death damages: (1) medical expenses, (2) pain and suffering, (3) lost earnings before death.
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