Little Red Courthouse

My notes on evidence…

Admissions
• Non-hearsay under the federal rules.
• Not conditioned on the availability of the declarant.
• A statement made or an act done that amounts to a prior acknowledgement by one of the parties to any action of one of the relevant facts.
• Lack of personal knowledge does not necessarily exclude a party’s admissions. If an admission was relevant, it will be admitted even if the party had no rational basis for the statement.
• It is irrelevant to whom the admission is made.
• Vicarious admissions will be allowed if the statement is made by an agent, and it concerned a matter within the scope of the agency.

Best Evidence Rule
• Where the terms of a writing are material, the original writing must be produced in proving the terms of the writing.
• This rule applies where the writing is a legally operative or dispositive instrument such as a contract, deed, or will, or where the knowledge of a witness concerning a fact results from having read it in the document.
• Copies are not permitted unless the original is shown to be unavailable for some reason other than the serious misconduct of the proponent.

Bias
• Evidence that a witness is biased or has an interest in the outcome of the case tends to show that the witness has motive to lie. Bias or adverse interest can be proved by cross-examination or extrinsic evidence.

Character Evidence
• Character describes one disposition in respect to general traits.
• Character evidence to prove the conduct of a person in the litigated event is generally not admissible in a civil case. It is admissible in a civil case only when a person’s character is directly in issue (i.e. defamation)
• But even when a person’s character is directly in issue, the evidence must be relevant to the particular character trait in issue.
• The rules concerning character are completely inapplicable to animals.
• The accused may introduce evidence of his good character for the trait involved in the case to show his innocence of the alleged crime.

Business Records
• A party may compel the opposing side to introduce any part of a business record that ought, in fairness, be considered contemporaneously with the portion they are trying to introduce.

Competency
• All witnesses are competent unless physically or mentally impaired in some fashion, or too young to understand the oath and the need to testify truthfully.
• There are no age restrictions. It is a combination of capacity and intelligence.

Convictions
• Convictions are generally not admissible for impeachment of a witness if more than 10 years old.

Dead Man Act
• A party or person interested in the event, or her predecessor in interest, is incompetent to testify to a personal transaction or communication with a deceased, when such testimony is offered against the representative or successor in interest of the deceased.
• Applies only to civil cases.

Declaration against Interest
• Applicable only where the declarant is unavailable as a witness.

Dying Declaration
• In a civil action or a homicide prosecution, a statement made by a now unavailable declarant while believing her death was imminent, that concerns the cause or circumstances of what she believed to be her impending death, is admissible.
• The declarant need not die as a result of the circumstances giving rise to her belief of imminent death. (must be unavailable)

Excited Utterances
• Statements made while a person is still under the stress of excitement of the startling event, and it concerns the immediate facts of the occurrence.

Expert Testimony
• Appropriate only when the subject matter is one where scientific, technical, or other specialized knowledge would assist the trier of fact in understanding the evidence or determining a fact in issue.
• To testify as an expert, a person must have special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates.

Felony Convictions
• Defined as any crime punishable by death or imprisonment in excess of one year.
• Judgments of felony convictions are admissible in both criminal and civil actions to prove any fact essential to the judgment.

Former Testimony Exception
• The testimony of a now unavailable witness given at another hearing or in a deposition taken in accordance with law is that the opportunity to develop testimony or cross-examine at the prior hearing or deposition was meaningful.

Habit Evidence
• One’s regular response to a specific set of circumstances.

Handwriting
• A lay person who has person knowledge of handwriting may state his opinion as to whether the document is in that person’s handwriting.

Hearsay
• An out of court assertion offered into evidence to prove the truth of the matter asserted.

Impeachment
• Casting of an adverse reflection on the truthfulness of a witness.
• A lack of memory will not be considered an inconsistent statement.
• Federal rules permit a party to impeach its own witness.

Judicial Notice
• Facts that are not subject to reasonable dispute, or capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned and judicial notice can be taken by the judge.

Lay Opinion Testimony
• Lay opinion testimony is admissible when:
o It is rationally based on the perception of the witness
o It is helpful to a clear understanding of his testimony or to the determination of a fact in issue
o It is not based on scientific, technical, or other specialized knowledge
• The witness must have had the opportunity to observe the event that forms the basis of her opinion

Leading Questions
• Leading questions are allowed at the discretion of the court in the following situations:
o Preliminary matters to which there is no debate
o Cross-examination
o Very young children
Liability
• Various kinds of conduct, including attempts to bribe witnesses, may be held to manifest an awareness of liability or guilt.

Medical Bills
• Evidence that a party paid, or offered to pay will not be admissible to prove liability for the injuries.

“Opening the Door”
• One who introduces evidence on a particular subject thereby asserts its relevance and cannot complain, except on grounds other than relevance, if her adversary thereafter offers evidence on the same subject.

Photographs
• To be admissible, a photo must be identified by a witness as a portrayal of certain facts relevant to the issue, and verified by the witness as a correct representation of those facts.
• The photographer need not be called to authenticate a photo, any person familiar with the scene may authenticate the photo.

Physician-Patient Privilege
• A person cannot invoke the p-p privilege where that person has put his physical condition in issue.

Prejudice
• A judge has discretion to exclude otherwise admissible, relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Prior Bad Acts
• Prior bad acts may be asked about of cross-examination of a witness.

Prior Consistent Statements
• Admissible only to rebut a charge that the witness is lying or exaggerating because of some motive.

Public Records Exception
• Records, reports, statements, or data compilations in any form of public offices or agencies are admissible if they set forth:
o The activities of the office or agency
o Matters observed pursuant to a duty imposed by law
o Or factual findings resulting from an investigation made pursuant to authority granted by law, in civil actions and against the government in criminal cases.

Present Sense Impression
• A comment made by a person while perceiving an event that is not particularly shocking or exciting that concerns the event that she is observing.

Relevance
• Evidence is relevant if it tends to make the existence of any fact that is of consequence to the determination of an action more probable than it would be without the evidence.

Remedial Repairs
• Evidence of repairs or other precautionary measures made after an injury is inadmissible to prove negligence or culpable conduct.
• This law wants to encourage people to make repairs or take other remedial measures after an accident.
• Only subsequent remedial measures are excluded as evidence of negligence.

Reputation
• A witness’s reputation for truthfulness is generally admissible for impeachment purposes in both civil and criminal cases.

Speech
• Any person familiar with an alleged speaker’s voice may authenticate a recording of the voice by giving an opinion as to its identity.

Spousal Immunity
• Spousal immunity prohibits the prosecution from compelling one spouse to testify against the other in a criminal proceeding.
• The privilege for marital communications protects communications between spouses made in reliance on the intimacy o the marital relationship.
• In court, the testimonial privilege is viewed as belonging to the witness-spouse.

State of Mind Exception
• A statement of intent to do something in the future is admitted as circumstantial evidence that the intent was carried out.
o Hillman- state of mind is admissible to show that the declarant acted in conformity with his expressed declaration

Statement against Interest Exception
• Statements of a person, now unavailable, against a person’s pecuniary, proprietary, or penal interest when made are admissible.

Testimony
• A party may not bolster or accredit the testimony of her witness until the witness has been impeached.

Unresponsive Answers
• An unresponsive answer by a witness is subject to a motion to strike by examining counsel, but not by opposing counsel.

Writings
• Before a writing may be received into evidence, it must be authenticated by proof showing that the writing is what the proponent claims it is.

My notes on Criminal Law.

Criminal Law

Accomplice to a Crime
• To be convicted as an accomplice a person must have acted with the intent to aid or encourage the principal in the commission of the crim. It is no longer required that the guilt of the principal be determined first.
• An Accessory after fact is not treated as a party to the felony, but will rather be charged with obstruction of justice.

Arrest
• After a valid arrest, the police may make a warrantless search of a defendant’s personal effects as part of an established procedure incident to incarceration. This type of search is valid under the 4th amendment.
• It is unconstitutional for an officer to use deadly force to effectuate an arrest of an unarmed escaping felon unless the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officers or others.

Arson
• Arson consists of the malicious burning of the dwelling of another. There is a requirement of some damage to the fiber of the wood or other combustible material.

Assault
• There are two actions that are covered by the crime of assault
o Attempted battery
o The intentional creation of a reasonable apprehension in the mindo of the victim of imminent bodily harm

Attempted Murder
• A specific intent crime and requires intent to kill.
• Attempt requires an act beyond mere preparation for the offense.

Burglary
• Common law burglary consists of:
o A breaking and entry into the dwelling of another, at nighttime with the intent of committing a felony therein.
• An accessory after the fact will occur if a person assists the perpetrator to avoid apprehension knowing that he committed a felony.
• An owner can commit burglary of his own structure if it is rented and used as a dwelling by someone else.
o The key element in determining whether a dwelling is that of another is the right of occupancy.

Confessions
• A confession obtained in violation of Miranda, but otherwise voluntary, can be used for the limited purpose of impeaching a defendant who testifies at trail.
• Involuntary confessions cannot be used to impeach.

Consent
• Allowing the police to enter the house is not “consent” to search places such as the bedroom closet.

Conspiracy
• Conspiracy consists of:
o An agreement between two or more parties
o An intent to enter into an agreement
 Undercover officers do not have this intent
o An intent to achieve an unlawful objective of the agreement (same objective by mutual action)
o In addition, most states require an act in furtherance of the conspiracy, although preparation will usually suffice
• Withdrawal is not a defense to conspiracy. By withdrawing, a person merely limits themselves against liability for future acts.
• When a defendant is charged with a conspiracy to commit a strict liability crime, specific intent still must be shown.

Double Jeopardy
• The right to be free of double jeopardy for the same offense bars a retrial for the same offense once jeopardy has attached in the first traial.
o Exceptions: If a mistrial is granted in the first trial at the request of the D on any grounds not constituting acquittal on the merits.

Embezzelment
• Embezzlement requires the fraudulent conversion of property of another by a person in lawful possession of that property.

Failure to Act
• Failure to act will constitute a crime only where there is a legal duty to act, and it is reasonably possible to perform the act.
• A legal duty can arise by statute, contract, a close relationship between the victim and the defendant, the voluntary assumption of care by the defendant, or the creation of peril by defendant.

False Pretenses
• The offense of false pretenses consists of obtaining title to the property of another by an intentional or knowing false statement of past or existing fact, with intent to defraud the other.

Fifth Amendment
• A person in custody must, prior to interrogation (except for standard booking questions) be clearly informed that he has the right to remain silent, and that anything he says can be used against him in court, that he has the right to an attorney , or one will be appointed for him if he so desires.
• Miranda warnings are a prerequisite to admissibility of any statement made by the D during a custodial interrogation.
• Testifying in a jury trial will waive these rights.
• The fifth amendment only regulates testimonial evidence, asking a person to give a handwriting sample is allowed.

Fruit of the Poisonous Tree
• Under the exclusionary rule, not only must illegally obtained evidence be excluded, but also all evidence obtained or derived from exploitation of that evidence.
• Live witness testimony is hard to exclude, if the witness is willing to freely testify.

Hot Pursuit
• Officers in hot pursuit of a fleeing felon may make a warrantless search and seizure.
• The scope of such a search may be as broad as is reasonably necessary to prevent the suspect from resisting or escaping.

Insanity
• Durham Test: A defendant is entitled to acquittal if his crime was the product of a mental disease or defect.
• Irresistible Impulse Test: A defendant is entitled to acquittal if, because of mental illness, the defendant was unable to control his actions or conform his conduct to the law.
• Mc’Naghten Test: A defendant is entitled to acquittal if a disease of the mind caused a defect of reason, such that the defendant lacked the ability at the time of his action to know the wrongfulness of his actions or understand the nature and quality of his actions.
• Modal Penal Code Test: (Combines Irresistible Impulse Test and Mc’Naghten) A defendant is entitled to acquittal if he suffered from a mental disease of defect and as a result lacked substantial capacity to either appreciate the criminality of his conduct, or conform his conduct to the requirements of the law.

Involuntary Murder
• Involuntary murder occurs when a death is caused by criminal negligence. Criminal negligence is a higher standard than negligence, and requires a greater deviation from the “reasonable person” standard of care. You must have knowledge of the true risks posed by your action.

Knock and Announce Rule
• Based on the 4th Amendment.
• Before entering a residence with a search warrant, you must knock, and announce your purpose, except when there is reasonable suspicion that knocking will be dangerous, futile, or will harm the investigation.
• The exclusionary rule does not apply to violation of the knock and announce rule, if the search was otherwise valid (Hudson v. Michigan).

Larceny
• Larceny requires a taking and carrying away of the tangible personal property of another by trespass, with intent to permanently deprive the other of property.
• Larceny by trick occurs when the victim consents to the defendant’s taking possession of the property but such consent has been induced by a misrepresentation.

Murder (Common Law)
• The unlawful killing of a human being with malice aforethought.
o Intent to kill (express malice)
o Intent to inflict great bodily danger
o Reckless indifference to an unjustifiably high risk of human life “abandoned and malignant heart”
o Intent to commit a felony

Negligence
• Mere negligence requires a failure to be aware of a substantial and unjustifiable risk, and thus failure to act as a reasonable person would under the circumstances.

Plain View Doctrine
• Evidence will be admissible if the police are legitimately on the premises, discover evidence, fruits, or instrumentalities of a crime or contraband, which is in plain view, and they have probable cause to believe that the item is evidence, contraband, or a fruit or instrumentality of the crime.
• The failure to knock and announce will negate an officers legitimacy on the property.

Prior Identification
• Statements of prior identification are admissible to prove their truth unless the defendant can show that the circumstances of the identification were unnecessarily suggestive and likely to result in irreparable misidentification.

Preventing Crime
• A person is privileged to use deadly force to prevent a crime only if it is a dangerous felony.

Protected Classes
• If the legislative intent of a law was to protect members of a class from exploitation or overbearing, members of that class are presumed to be immune from liability, even if they participate in the crime (i.e. statutory rape)

Provoking Event
• Mitigates the homicide to voluntary manslaughter (killing in the heat of passion)
• There is no rule of “continuing provocation”. We must always look to the particular situation to determine provocation.

Receipt of Stolen Property
• Receipt of stolen property requires that defendant receive possession and control of the stolen property knowing it to have been stolen by another person and with the intent to permanently deprive the owner of it.
• There must be a concurrence of the mental state and the physical act for the crime to be committed.

Robbery
• Robbery is a taking of another’s personal property from the other’s person by force or intimidation with the intent to permanently deprive him of his property.
• Armed Robbery is robbery with a weapon.
• The slightest movement with the stolen item will constitute robbery.

Search Warrants
• A search warrant is valid if the affidavit accompanying it is sufficiently detailed to allow a determination of probable cause.
• A search warrant must describe with reasonable precision the place to be searched an any items to be seized. (condo/unit numbers ARE REQUIRED)
• A magistrate must make a determination of probable cause independent from the officer.
• Factors determinative of probable cause are the informer’s reliability, credibility, and basis of knowledge.
• Probable cause for a warrant may be based on hearsay, if the information comes from a reliable informant.
• Disclosing the identity of the informant is NOT necessary.

Self-Defense
• The use of deadly force in self-defense requires that the defendant reasonably believe that he is faced with imminent death or great bodily harm. Accidental blows will not rise to this level.
• One may use deadly force in self-defense even if the use of force could be avoided by retreating safely (unless you are the initial aggressor)
• One who begins a fight generally has no right to use force in his own defense. If the aggressor has a chance to withdraw rather than respond to a counter-attack, they have a duty to do that.
• There is no right to use deadly force if harm is merely threatened at a future time.

Smuggling of Narcotics
• Requires intent and knowledge.

Transferred Intent Doctrine
• If a defendant intended injury to a person, and in trying to carry out that intent caused similar injury to another, her intent is transferred from the intended person to the one harmed.
• Any mitigating circumstances that the defendant could have asserted against the intended vicim (such as provocation)will also usually be transferred

Voluntary Manslaughter
• Murder will be reduced to voluntary manslaughter if the killing occurs while the D is acting under a provocation that would arouse sudden and intense passion in the mind of an ordinary person so as to cause him to lose self-control, with insufficient time between the provocation and the killing for the passions of a reasonable person to cool.

Voluntary Search
• A search is valid as long as the police reasonably believe that the consenting party has a right to use or occupy the premises.
• Anything in the exclusive right of use of another will be off limits. There is no requirement that the owner of property must declare in advance that the property is off-limits.

Warrantless Search
• All warrantless searches are unconstitutional unless they fit into one of the six recognizable exceptions to the warrant requirement.
o Search incident to a lawful arrest
 Police can only search areas within the immediate control of the defendant
o The automobile exception
o Plain view
o Consent
o Stop and frisk and other limited intrusions
o Hot pursuit, evanescent evidence, and similar emergencies
• Warrantless Entry into a residence for the purpose of making a felony arrest is an unconstitutional violation of the 4th amendment. (absent an emergency)

Willful
• A person must have acted knowing that her conduct would necessarily cause the result.

A brief summary of my contract law review notes.

Contract Law

Acceptance
• A manifestation of assent to an offer.
• At common law, acceptance is effective upon dispatch (mailbox rule).

Advertisements
• Advertisements are not an offer, but merely an invitation for offers. Advertisements are part of the preliminary negotiations. (unless they are very definite to terms).

Ambiguities
• If one party is aware of a latent ambiguity but the other party is not, a contract will be enforced in favor of the unaware party.

Anticipatory Repudiation
• AR occurs when a promisor, prior to the time set for performance indicates that they will not perform when the time comes. This doctrine does not apply if both sides do not have executor duties to perform, and the repudiation must be unequivocal.
• If repudiation is questionable, a party must demand assurances before suing.
• Motive for breach (good faith) does not alter the right to sue.

Assignments
• The general rule is that all contracts can be assigned. However, a contract that calls for personal service is nondelegable.
• Gratuitous assignments are generally revocable unless the obligor has already or the assignee has relied on the promise to his detriment.
• A statement “not to assign” in a contract only relates to duties, not assignment of payments.

Bids
• There is no duty to check all bids for mistakes.

Breach of Contract
• When a buyer breaches by repudiating its offer, the seller has a right to recover its incidental damages plus and $$ owed (minus mitigation).

Contract Disputes
• Cashing a check offered as payment in full, where there is a bona fide dispute as to the amount owed, will establish an accord and satisfaction.

Contract Formation
• Formation requires mutual agreement between the parties (offer and acceptance) and consideration.

Contract Modification
• A promise to modify an existing contract is enforceable even without consideration. The only requirement is that the proposal is made in good faith.
• Under the UCC (sale of goods), additional terms (for merchants) are included in the contract, unless they materially alter the contract, the offer limits acceptance to the terms of the offer, or the offeror objects in a reasonable time frame.
• If not merchants, a contract is formed under the offer terms.
• If a party is already under a pre-existing obligation to perform services, and additional modifications to the contract must be supported by additional consideration.
• Under the UCC, a writing in confirmation of the contract (even if it varies the original offer) will bind the parties unless an objection is made within 10 days.

Defective Goods
• A buyer of defective goods may recover as damages “loss resulting in the normal course of events from the breach”, which includes damages to the goods themselves, plus all foreseeable incidental and consequential damages, including injuries to persons and property.

Detrimental Reliance
• A promise will be enforced to the extent necessary to prevent injustice if it was made with a reasonable expectation that it would induce reliance, and such reliance was in fact induced.

Failure of Consideration
• Failure of consideration is a claim that come element of thee promised consideration cannot now be given, and is a grounds for breach.

Implied Warranty of Fitness for a Particular Purpose
• Arises only when a purchaser relies on the expertise of the seller to pick suitable goods.

Implied Warranty of Merchantibility
• In every sale of goods, unless expressly disclaimed, there arise a warranty that the goods shall be merchantable, which means that the goods shall be fit for ordinary purposes.

Implied-in-Fact Contract
• Arises when assent is manifested by conduct, as opposed to assent by oral or written language (express contract).
Impossibility
• Contractual duties will be discharged if it has become impossible to perform them. One common situation where impossibility is applied is where either the means for carrying out the contract or the subject matter of the contract is destroyed or damaged.
• A contract will be discharged only by objective impossibility (no one could have performed).
• Subjective impossibility (D could not perform) is insufficient.

Installment Contracts
• A buyer cannot cancel an entire contract because of a defect in one installment if the defect can be cured.

Integration
• When parties have made a mistake in integrating their agreement into a writing, the court will grant relief from the drafting error.
• In the case of an actual mistake by both parties, parol evidence would be admissible to show the mistake.

Inquiries
• A counteroffer serves as a rejection of the original offer as well as a new offer. However, a mere inquiry about additional terms or matters is not a counteroffer.
• Test is to whether a reasonable person would believe that the offer was being rejected.

Liquidated Damages
• Liquidated damages clauses are only enforceable if damages were difficult to estimate at the time the contract was formed, and the amount agreed upon is a reasonable forecast of the damages that would result from breach.
• A party may recover either liquidated damages, or actual damages (but not both).

Loss/Damage
• Under the UCC, when the contract authorizes or requires seller to ship the goods by carrier buy does not explicitly require the seller to deliver them at a particular location, risk of loss passes to the buyer when the goods are delivered to the carrier.
• However, if the goods are so defective that the buyer had the right to reject them, the risk of loss does not pass until the effects are cured and the buyer accepts the goods.

Mailbox Rule
• An acceptance generally is effective upon dispatch, unless the offer states that acceptance will not be effective until received.

Marriage
• A contract in consideration of marriage must be evidenced by a writing to be enforceable.

Minors
• Contract disaffirmance (and returning any goods received) by a minor will discharge any liability under the contract. Minors general lack capacity, making the contract voidable at the election of the minor. The adult party does not have this option.
• Minors are required to pay the reasonable value of “necessities”.

Mistake
• Where only one of the parties entering into a contract is mistaken about facts relating to the agreement, this unilateral mistake will not prevent formation unless the non-mistaken party is or had reason to be aware of the mistake.
• When both parties are mistaken, the contract may be voidable by the adversely affected party if the mistake was a basic assumption on which the contract was made.
• If a contract is reformed after the mistake becomes known, new terms will be acknowledged by the courts (despite not having a writing). Additional consideration will not be needed.
• A promise to forbear suit on a claim that the promisor honestly and reasonably believes to be valid is good consideration to support an agreement, even if the claim ultimately turns out not to be valid.
• Mutual mistake must be to the terms of the contract (not the reason for entering into the contract).

Non-Conforming Goods
• When non-conforming goods are delivered, the buyer may:
o Reject them and cancel the contract, sue for damages
o Accept them, not cancel (become bound under contract), and sue for damages for any nonconformity
• Acceptance occurs when the buyer indicates that he will accept (after opportunity to inspect), fails to reject within a proper time frame, or does any act inconsistent with the seller’s ownership
• Shipment of nonconforming goods will constitute acceptance and a breach of the resulting contract under the UCC, unless the seller notifies the buyer that the goods are offered only as an accommodation
• Paying in advance neither impairs the buyer’s right to inspect nor his right to assert remedies.
• A buyer may accept all, reject all, or accept any part of a nonconforming shipment.

Novation
• A substitution of a third party for one of the parties to a contract by agreement of all the parties involved.

Offer
• For a communication to be an offer, it must create a reasonable expectation in the offeree that the offeror is willing to enter into a contract on the basis of the offered terms. There must be a promise, undertaking, or commitment to enter into a contract with certain and definite terms.
• Where there is a mistake in the transmission of an offer by an intermediary, the prevailing view is that the offer as transmitted is operative unless the other party knew or should have known of the mistake.
• An counteroffer serves as both a rejection terminating the original offer and an new offer (by the opposite party).
• Offers are revocable until accepted.
• In a subcontractor setting, bids are irrevocable for a reasonable amount of time because of detrimental reliance.

Promissory Estoppel
• A promise that the promisor should reasonably expect to induce action or forbearance on the part of the promise, and which does not induce such action or forbearance, in binding if injustice can be avoided only by enforcement of the promise.

Quasi-Contract
• A remedy (legal fiction) that prevents unjust enrichment by imposing on a recipient of requested goods or services a duty to pay for the benefit received when there is a failed contract or no contractual relationship between the parties. (unjust enrichment)
• Recovery is measured by the benefit conferred and not by the costs of conferring the benefit.
• In some cases courts will allow a party to recover the market value of his services even if they do not directly benefit the other party, as long as they were done with the expectation of being compensated or they benefit a third party at the request of the other party.

Parole Evidence Rule
• Prevents the introduction of oral statements made prior to or contemporaneously with a written contract (to contradict the terms of an integrated written contract).

Revocations
• There is no mailbox rule for revocations, revocations are effective upon receipt.
• Receipt does not require knowledge of the revocation, but merely possession of it.

Specific Performance
• Specific performance is available only where the legal remedy is inadequate.
• Courts will generally not grant a decree of specific performance in personal services contracts (forcing someone to work).
• One of the prerequisites for specific performance is that all of the opposing side’s contractual conditions have been fulfilled. (or a readiness to perform any conditions concurrent)

Statute of Frauds
• A promise for the sale of goods for $500 or more is not enforceable under the Statute of Frauds unless evidenced by a writing signed by the party to be charged.
• A defense to enforcement of certain contracts when there is no writing. Used to prevent the enforcement of contracts, not to enforce them.
• A contract to build is not within the statute of frauds.
• To be enforceable, a contract for the sale of land must be evidenced by a writing signed by the party sought to be charged.

Terms
• A contract for the sale of land need only indentify the land and contain a price term.

Third-Party Beneficiaries
• Third party credit beneficiaries can sue on an agreement.

Unconscionability
• Often applied to one-sided bargains where one of the parties has substantially superior bargaining power.

Unilateral Contracts
• Unilateral contracts are revocable until performance has begun.

Unjust enrichment
• There is no enforceable contract, yet one person has for some reason conferred a benefit on another with the expectation of being compensated. If the opposing person retains the benefit, he will be unjustly enriched. (based on equity, not contract)

Attached are my notes on my review of constitutional law.

Alienage
• A state may reserve a government position for citizens only if it is related to self-governance, involves policy-making or requires exercise of important discretionary power over citizens (such as a teach).

Appointment Clause
• Congress can only vest appointments of inferior officers in the president, courts, or the heads of departments. Enforcement is an executive act. Congress cannot appoint its own members to the commission to exercise enforcement powers.

Attorney General
• The right to prosecute is exclusively within the discretion of the executive branch. Separation of powers prohibits legislative interference with the executive discretion as to whether to prosecute.

Bill of Attainder
• Legislative acts cannot inflict punishment on an individual (identified by name or in terms of past conduct) without a judicial trial.
Commerce
• The power to regulate foreign commerce lies exclusively with Congress. Only the states are prohibited from unduly burdening interstate commerce.
• Congress may regulate anything that has a substantial economic effect upon interstate commerce.
• This power does not override independent constitutional restrictions such as abrogating freedom of speech or discriminating in favor of a particular religious group.
• If Congress has not adopted laws regarding a subject, local governments are free to tax or regulate local aspects of the subject area as long as the tax or regulation does not discriminate against interstate commerce or unduly burden it.
• Taxes will be viewed as unduly burdensome if the need for the revenue does not outweigh the burden on interstate commerce.

Congressional Power
• Article I, Section 1 grants congress all legislative powers.
• Congress cannot vest in itself any broader appointment powers than what is provided for by the constitution.
• Congress may investigate only matters upon which it can legislate, but it is not limited to matters as to which it has made appropriations of money.
• Article IV gives congress the power to regulate federal lands.

Contract Clause
• The contract clause prohibits states from acting to substantially impair contract rights (future economic interests). State actions that impair these rights will be subjected to strict scrutiny.

Strict scrutiny: (1) does the act serve an important and legitimate public interest?
Ex. Health and Safety
(2) is it a reasonably and narrowly tailored means of promoting that interest?

Courts (Cases and Controversies)
• Federal district courts do not have authority to render advisory (non-binding) opinions.

Due Process
• Was there a deprivation of an individual’s life, liberty, or property?
• Substantitive due process tests the reasonableness of a statute, and prohibits arbitrary government action.
• When government actions limits a fundamental right, the government must prove that the action is necessary to promote a compelling interest. If a fundamental right is not involved, the challenging party must prove that the act is not rationally related to any legitimate government interest.
• Government action will be upheld unless the challenger can prove that action was not reationally related to a legitimate government interest.
• Government action includes court enforcement of restrictive covenants between private parties.
• Procedural due process requires that fair procedure be used before a government agency takes away a person’s life, liberty, or property. This requires notice of the government’s proposed action and an opportunity to present objections to an unbiased decisionmaker.

Eleventh Amendment
• Federal courts cannot hear actions by a citizen of a state against his state, unless a constitutional violation has occurred. Actions between the federal government and a state are not barred.

Equal Protection
• Equal protection violations exist where a law limits the liberty of some persons but not others, treating similar people in a dissimilar manner. (singling out one class of citizens for special treatment)
• If no fundamental right or suspect class exists, use the rational basis test. Plaintiff must show that the law is not rationally related to a legitimate state interest.
• Only the denial of particularly important rights to those unable to pay has been held to violate equal protection (both de jure and de facto discriminations)

Establishment Clause (1st Amendment)
• No law can “respect an establishment of religion.
• Improper government involvement? Use the three part

Lemon v. Kurtzman test.
• When government aid is given to a religious body and no sect preference is involved, tha aid will be upheld if: (1) it has a secular purpose (2) its primary effect neither advances nor inhibits religion (3) it does not produce excessive government entanglement with religion.
• Does a law or program discriminate among religions? Use “compelling state interest” test.
• A law of general applicability will not be struck down on free exercise grounds unless it was enacted for the purpose of burdening religion. No consideration of whether the state’s interest was compelling occurs.
• A court cannot assess the validity of religious beliefs, it may only assess whether a person sincerely holds the religious beliefs that they claim.

Executive Branch
• Officials of the executive branch are not immune from prosecution relating to their duties.

Federalism
• Federal courts generally abstain from enjoining pending state criminal proceedings, until after the state prosecution has ended.
• The exception to this rule is if the state court prosecution is being conducted in bad faith.
• The supreme court will not hear a case from state court, if there are adequate and independent state grounds to support the decision.

First Amendment
• Government may limit individual contributions to a candidate’s campaign. (to prevent corruption or the appearance of corruption)
• Government cannot limit the contributions to a PAC that supports or opposes a ballot referendum. (This type of law would not serve a sufficiently important interest to outweigh the restraints that it puts on freedom of speech and association.)
• Any law restricting freedom of speech must be “closely drawn” to match a “sufficiently important interest”. (intermediate scrutiny)

Freedom of Speech- First Amendment
• Although a municipality can place reasonable time, place, and manner restrictions on certain aspects of speech, it may not adopt a regulation that gives officials broad discretion over speech issues (such as the mayor).
• The freedom of speech is not absolute. The government is allowed to adopt reasonable time, place, and manner regulations on speech in public forums and designated public forums. To be valid, such regulations must be content neutral, narrowly tailored to serve a significant government interest, and leave open alternative channels of communication.
• Private property can become a public forum during the time of government use.
• Commercial speech can be subject to significantly more regulation than noncommercial speech. To determine whether a restriction is valid, we must look at whether is speech misleading or fraudulent? If not, courts will ask (1) is the government interest in the regulation substantial? (2) Does the regulation advance that interest? (3) is the regulation narrowly tailored to the substantial interest?
• Charitable solicitations for funds in residential areas are within the protection of the first amendment.
• The press and public have a broad right of access to criminal proceedings which can only be outweighed by a compelling government interest. However, in juvenile trials, this right is not as strong. Sealed documents are not considered public documents.

General Welfare Power
• The general welfare clause is a limitation on congress’ power, not a source of its power.
• Prior to disbursement of funds, the federal government may attach any reasonable condition to expenditures under the general welfare power.

Intergovernmental Immunity
• A state has no power to regulate activities of the federal government unless Congress consents to the regulation of their federal functions.
• Agents and instrumentalities of the federal government are immune from state regulations that interfere with federal activities, functions, and programs.

Judicial Power
• The power to adjudicate actions where two or more states are involved (such as border disputes) is vested in the judicial branch by Article II of the Constitution.
• Article I, section 5: The Constitution lists certain minimal requirements for Senators, but grants each House of Congress the power to be the judge of member qualifications and allows each to determine rules for proceedings. Controversies capable of repetition but evading review will be heard even though the controversy might not continue for the entire case. This exception applies where the controversy involves issues of short duration or where the defendant voluntarily stops the offending practice.
• Only article III judges enjoy the constitutional grant of life tenure.
• The Supreme Court has original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. In all other cases, such as maritime law, the Supreme Court only has appellate jurisdiction.

Mootness
• Mootness goes to whether there is a real, live controversy at this stage of the proceeding.

Political Questions
• Not justiciable. Arise when an issue is committed to another branch of the government by the constitution, or is incapable of resolution and enforcement by the judicial process.

Police Powers
• Providing housing for citizens is clearly within the reserved police powers of the state.

Power to Tax
• Article I, Section 10, Clause 2: “No state shall, without congressional consent, lay any taxes on imports or exports, except which are absolutely necessary for executing its inspection laws”.

Presidential Power
• Article II, Section 2 gives the president the exclusive right to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.
• The President also has the exclusive right to nominate ambassadors and other officers of the United States.
• The appointment of consular (ambassadors) staff involves the president’s power of foreign relations, not his power as commander in chief.
• The president has “plenary powers” in the field of foreign affairs.
• The president has power to enter into executive agreements. Executive agreements are the law of the land until congress enacts a statute that is inconsistent with the agreement.

Privacy Rights
• When the government restricts a fundamental right such as the right to have children, strict scrutiny is used. The government must show a compelling interest in the regulation, and that regulation must be NECESSARY to achieve the purpose. (difficult to meet)

Privileges and Immunities Clause
• Does not apply to corporations or aliens.
• Prohibits states from discriminating against out-of-state residents when a fundamental right is involved.
• States are permitted to treat residents of other states differently than their own citizens.

Property
• Article IV, section 3 of the constitution gives congress the power to dispose of all property belonging to the federal government. There are no express limits on this power, and disposal has never been invalidated on the ground that it places a competitor of the purchaser at a disadvantage. No express permission is needed by any executive officer to exercise this power.
• Discriminatory government action is permissible as long as it is rationally related to the government’s interest advancing the public interest.

Religion
• The Free Exercise clause provides that the government may not prohibit the free exercise of religion, merely because that conduct is religious in nature.
• Atheism is a religion protected by the Free Exercise clause.

Ripeness
• Ripeness is a bar to hearing actions before a controversy arises.

Second Amendment
• The second amendment is prohibitory, and should not be viewed as a source of pwer.

Spending Power
• Article I, Section 8: Almost all expenditures of Congress are permissible. Broad power to spend for the “general welfare” i.e. any public purpose.
• A recipient cannot be forced to forgo an individual constitutional right as a requirement for aid.

Standing
• A person has standing to challenge a governmental action if they can show they have a stake in the outcome of the litigation sufficient to ensure their zealous participation. On a constitutional issue, a plaintiff must be able to show that he is or will be injured by the government action. Any decision must also remedy this injury.
• An organization may have standing to represent its members if there is a fsufficient injury to the members that is related to the organizations purpose, and the nature of the claim and the relief sought does not require participation of the members.

State Action
• For state action to be present, the government must be significantly involved in the private entity, mere city licensing does not convert a private company’s operations into state action.

Supremacy Clause
• If the federal government adopts legislation that it has the power to adopt, the federal legistlation is supreme, and a conflicting state law is rendered invalid.

Tenth Amendment
• The tenth amendment reserves all powers not granted to the federal government to the states.

Travel Rights
• The right to travel involves interstate travel.

I am tired about the constant attention that has been given to universal healthcare in this year’s presidential election. Sure, everyone can repeat a horror story that they have heard about HMOs or the evils of insurance companies, but seemingly unbeknownst to most, universal healthcare will not be able to alleviate these types of issues.

Universal healthcare will allow more people to access our public health system. But access is only part of the problem. The other half of the issue that most people fail to bring up in conversation, politicians avoid like the plague, is quality of care and compassion.

Until each and every hospital in this country can ensure that they have a full staff of truly compassionate people who treat people like patients, and not like a product coming off of the assembly line. Medical facilities must hire and train the right people, ensure that patients are comfortable speaking with medical professionals, and spend a few extra minutes each day increasing the quality that the facility provides to its patients.

Universal healthcare will make this problem worse. People currently pay more for PPO service so that they can use their OWN doctors, doctors and professionals that make them feel comfortable. Strategic partners in their healthcare whom they feel comfortable discussing health issues and concerns. By leveling the playing field so that everyone receives the same assembly-line medicine will be extremely detrimental to the public.

Politicians need to ensure that they look at both parts of the healthcare solution when they propose solutions to mend our healthcare crisis. Access can be a great place to start, however, we must be extremely wary not to forget about the second half of our problem: quality of care.

Oprah rules the world. Believe it or not, as one the most powerful women in the world, she has a tremendous amount of power.

In 1996, Oprah brought the Texas beef industry to its knees when she scheduled a debate between Gary Weber of the National Cattlemen’s Beef Association (NCBA) and vegetarian activist Howard Lyman. Lyman was the clear winner of the debate. Lyman horrified the audience with vivid details about cannibalistic animal-feeding practices and their link to mad cow disease that was currently plaguing Europe.

As a result of the show, the entire country freaked out about “mad cow disease” and stopped eating beef. The Texas Ranchers lost millions. All from one little television episode of the Oprah Winfrey show.

The same thing is currently happening with the 2008 presidential election. The public masses (typically uninterested in politics) have heard Oprah’s support of Presidential candidate B. Obama. My prediction: Following Oprah, like sheep, the public masses will elect Obama as president. Not based on his platform, not based on his foreign policy, not based on his public service, but solely because Oprah told them to.