b'Community Property Outline\n\n\n\nBasic Default Principles & Presumptions\n\nDefinitions\n\nSeparate Property: property (1) owned by either spouse before marriage, (2) acquired by gift, will, or inheritance, or (3) acquired during the marriage with separate funds, (4) rents, issue and property derived from separate property, even if acquired during marriage.\n\nCommunity Property: property, other than separate property, acquired by either spouse during marriage.  E.g., salary, income from community assets.\n\nCommunity Presumption: all assets acquired during marriage are presumptively community property.  Burden on party asserting it is SP.\n\nExtension of CP System: applies to registered domestic partners (RDPs).  Available to (1) same-sex couples, and (2) elderly opposite-sex couples receiving social security.  Same-sex couples lawfully married after In re Marriage Cases (2008) but before Prop. 8 (Nov. 5, 2008) may claim community property rights as spouses, not as domestic partners.\n\nWhen Does Economic Community End? Permanent physical separation and intent (by one party) not to resume the marital relation.  Note: if both maintain the fa\xc3\xa7ade of marriage, community has not ended, even if cheating and not living together.\n\nFor CP not divided on divorce, court retains continuing jurisdiction to award, and on motion will divide 50/50 unless interests of justice require otherwise.\n\nHow is CP Handled on Divorce?\n\nEqual Division Required: absent agreement, all CP must be divided equally, on an individual asset basis.  That is, each community asset and liability must be divided 50/50.\n\nEconomic Circumstance Exception: permits entire asset to one spouse and cash to other: residence, closely-held corporation, pension.\n\nStatutory Exceptions: misappropriation of CP by a spouse; educational debt; spouse\xe2\x80\x99s tort Liability not based on activity for benefit of community; personal injury is CP but on divorce is awarded to injured spouse unless interests of justice require otherwise; negative Community: where community liabilities exceed assets, ability of each spouse to pay is considered, and may not be 50/50 division (concern to protect creditors).\n\nDisparity in Earning Power: may be considered only as to spousal support or child support.\n\nRules Governing Gifts of CP\n\nNo Unilateral Lifetime Gift: neither spouse can make gift of CP without other spouse\xe2\x80\x99s written consent.  If gifting spouse is alive, non-gifting spouse can set aside gift in entirety or, on divorce, take equal offsetting CP to recover her half.  If gifting spouse dead, non-gifting spouse can set aside gift as to her half, and recovery will be either from donee or spouse\xe2\x80\x99s estate.  Same result if third-party is named on spouse\xe2\x80\x99s CP life insurance.  However, if gift was U.S. Bonds, federal law preempts and provides that cannot be recovered from third party.\n\nYes Unilateral Testamentary Power over \xc2\xbd CP.  Each spouse has testamentary power over \xc2\xbd CP and all SP.  \n\nWidow\xe2\x80\x99s Election Will: if will purports to dispose of more than \xc2\xbd CP, surviving spouse cannot read will selectively, and must elect either to take (1) under the will as written or (2) against the will by claiming \xc2\xbd interest, but must then relinquish all testamentary gifts in her favor.  \n\nAcquisition on Credit During Marriage: under the Community Credit presumption, funds borrowed during marriage and goods purchased on credit during marriage are presumptively CP.  However, ultimately classified according to primary intent of the lender.  Single spouse\xe2\x80\x99s personal credit score or reputation in community is not sufficient primary intent, as both are CP.  However, where funds secured by mortgage on single spouse\xe2\x80\x99s SP, sufficient primary intent to defeat presumption of CP.  Note, and items obtained with funds from note, would be SP.\n\nConfidential Relationship, Fiduciary Duty, Undue Influence: spouses are fiduciaries and owe duty of highest good faith and dealing with each other.  If one spouse gains advantage from transaction, presumption of undue influence arises.  Spouse has burden of proof to show no breach.  Under 2002 statute, grossly negligent and reckless investment of community funds is breach of fiduciary duty.\n\nEffect on Characterization of How Title is Taken\n\nProperty Acquired Pre 1975-Married Woman\xe2\x80\x99s Special Presumption: where CP was used to take written title in a married woman\xe2\x80\x99s name and the title did not indicate CP or joint tenancy was intended, presumptively wife\xe2\x80\x99s SP.  This is exception to general rule that assets in one spouse\xe2\x80\x99s name does not overcome community presumption.  \n\nRebuttability: not rebuttable as against BFP who takes in reliance that it is wife\xe2\x80\x99s SP, but as between wife and husband, husband can rebut by showing he did not intent to make a gift to wife. \n\nWeird Examples: title taken in name of \xe2\x80\x9cHobie Gates & Winkie Gates\xe2\x80\x9d (with no reference to marital status), or \xe2\x80\x9cWinkie Gates, a married woman,\xe2\x80\x9d presumption applies.\n\nPresumption From Taking Title in Joint Form Where SP Used for CP (i.e., only where title lists both spouses\xe2\x80\x99 names) on ownership and reimbursement where SP is used to purchase or improve the property.  These rules only apply if a title or deed document exists.  A receipt is not enough.\n\nSP in Death: Marriage of Lucas: presumptively CP, and any SP is presumptively a gift to community.  No SP ownership interest or claim for reimbursement unless written agreement to that effect.\n\nSP in Divorce: Anti-Lucas Statutes\n\nOwnership: presumptively CP, rebutted by express statement in deed or other instrument of title, or written agreement.\n\nRight to Reimbursement: spouse contributing SP entitled to reimbursement without interest for DIP: contribution to Down payment, Improvements, and Principal payments on mortgage (as well as principal even if no mortgage).\n\nDuring Marriage: could be joint tenancy, in which each has a SP interest.  Must check instrument.  Not necessarily CP.\n\nAltering Character of Assets by Agreement: parties can, by agreement, opt out of CP and SP default characterizations as to particular assets or all acquisitions.  No consideration required.\n\nPremarital Agreements\n\nRule: must be in writing signed by both parties, unless (1) oral agreement is fully performed, but marriage alone is not sufficient performance, or (2) estoppel based on detrimental reliance.\n\nScope: parties can agree to anything except to limit child support contributions. \n\nDefenses to Enforcement\n\nNot Signed Voluntarily: a premarital agreement is deemed involuntary unless challenging party was given at least 7 days to sign and was either represented by independent legal counsel or was fully informed in writing of terms and basic effect, and executed acknowledgement.\n\nUnconscionable: a question of law for judge\n\nSpousal Support Provision: unenforceable if either (1) party not represented by independent counsel at time signed, or (2) provision is unconscionable at time of enforcement, even if represented.\n\nAnything Else: unenforceable if both unconscionable when made and (1) no full and fair disclosure of other party\xe2\x80\x99s property or financial obligations; (2) right to disclosure not waived in writing, and (3) party challenging had no adequate knowledge of other party\xe2\x80\x99s property or financial circumstances.\n\nIntra-Marital Agreements (Transmutations): prior to 1985, oral transmutations permitted, but after 1985 all transmutations must be in writing, signed by spouse adversely affected, and explicitly state that a change of ownership is being made.  No usual exceptions to writing requirement for SOF, estoppel, part performance.  However, no writing required for gift of tangible property of personal nature (e.g., inherited jewelry) which is not substantial in value under circumstances.\n\nWill/Revocable Trust as Evidence: in any proceeding commenced before death, statements contained therein relating to character of property is not admissible evidence of a transmutation.\n\nEffect of Parties\xe2\x80\x99 Actions on Characterization of Assets\n\nInstallment Purchase Pre-Marriage, Debt Paid With CP During Marriage: Pro-Ration Rule: community estate takes pro-rata portion of the property measured by the percentage of principal debt reduction attributable to the CP.  To get percentage, you do not look at contributions to interest, taxes, etc.\n\nInsurance: pro-ration rule applies to whole life insurance.  But for term insurance, pro-ration inapplicable, and the last premium determines the character, as each payment governs each respective portion of the term.\n\nCP Used to Improve SP\n\nSpouse Expends CP to Improve Own SP: where CP used to improve SP by way of fixture, community has no ownership interest in the SP.  However, community has right to reimbursement of the greater of the CP or the SP\xe2\x80\x99s increase in value.\n\nSpouse Expends CP to Improve Other Spouse\xe2\x80\x99s SP: courts are split: some require reimbursement, others do not and presume a gift to other spouse\xe2\x80\x99s SP rebuttable only by evidence of agreement to reimburse community. \n\nTracing Property Purchased From Commingled Funds\n\nRule: to establish that property purchased from commingled funds is SP, spouse must use one of the following tracing methods on an asset-by-asset basis: \n\nExhaustion: at time asset purchased, community funds had already been exhausted.\n\nDirect Tracing: at time asset purchased, there were separate funds available, and proponent intended to use them to purchase SP.\n\nFamily Expense Presumption: expenditures for family expenses are presumed to be made by community funds even if SP available.  If SP is explicitly used, however, presumption of gift to community, unless agreement otherwise.\n\nNo Recapitulative Accounting: SP proponent cannot simply show that total community expenses exceeded total community income and conclude all remaining funds and assets purchased from commingled account are SP.  Burden is to show that each asset was purchased with SP funds.\n\nMere fact of commingling of SP and CP does not effect a recharacterization.\n\nCommon Characterization Problems\n\nSP Business Increases in Value During Marriage: two tests for determining how much increase is CP vs. SP, and both should be discussed.\n\nPereira Accounting (Personal skills and effort of spouse\xe2\x80\x94Pay interest): SP is businessperson\xe2\x80\x99s separate capital + a fair rate of return.  Remaining value is CP.  [The idea is that since the increase came as a result of spouse\xe2\x80\x99s hard work, and hard work is community asset during marriage, community should get a lot.]\n\nVan Camp (Valuable Company or asset\xe2\x80\x94Value Community labor): CP is value of spouse\xe2\x80\x99s services less family expenses paid from business earning.  SP is everything else.  [The idea is that since spouse\xe2\x80\x99s work, which is community asset, didn\xe2\x80\x99t do so much, community should get little.]\n\nCourt is not bound to adopt either, and can select whichever achieves substantial justice between the parties. \n\nPension\n\nRule: if accumulated during marriage, whether or not vested at time of divorce, it is CP, subject to pro-ration rule: percentage of years service while married out of total years employed to retirement.\n\nAwarding Before Vesting: if at divorce pension has not vested, spouse can be awarded either (a) \xe2\x80\x9cif and when received decree\xe2\x80\x9d in which when pension is received, spouse gets share, or (b) cash-out by awarding other assets of equal value.  If vesting has occurred, spouse has present right to her share of the pension, even if other spouse does not opt to retire.\n\nFederal Law: if a non-participant spouse (NPS) in a qualified pension plan divorces a participant spouse, her CP interest is recognized, and under federal law, she can get a Qualified Domestic Relations Order and receive payments from the plan.  If the NPS predeceases the participating spouse, NPS cannot devise her CP interest in the plan, because federal law preempts and prevents her from doing so.\n\nDisability & Workers\xe2\x80\x99 Compensation: treated as wage replacement.  Thus, classified according to when received, not according to when earned.  However, where an election is possible, a spouse cannot defeat community interest by way of electing the kind of benefit.\n\nSeverance Pay After Marriage Ends: no clear rule.  Some court say SP because it replaces lost earnings, others say CP because it was earned during marriage.\n\nStock Options Awarded During Marriage But Vesting After Marriage: pro-ration formula depends on the employer\xe2\x80\x99s primary intent:\n\nTo Compensate for Past Performance: Marriage of Hug Formula: CP = number of shares multiplied by fraction of years of employment to date community ended over employment to date option vests.\n\nTo Encourage Remaining: Marriage of Nelson Formula: CP = number of shares multiplied by fraction of years from date option is granted to date economic community ends over years from date option granted to date option becomes exercisable. \n\nGoodwill of Professional Practice: is CP to the extent acquired during marriage.  Any agreement among the business partners as to value of goodwill to each partner is a factor that may be considered, but not conclusive as to CP value.  Valuation methods: (1) current-sale value, or (2) future income from accrued goodwill.\n\nEducation & Expenses \n\nEducation Not Property, But Right of Reimbursement: not property subject to division on divorce, even if other spouse funds education.  However, funding spouse entitled to reimbursement if education enhanced earning capacity.\n\nEquitable Defenses to Duty to Reimburse: (1) if community has already benefitted from education, which is presumed if more than ten years have passed since education, or (2) other spouse also received CP-funded education, then no right to reimbursement.\n\nStudent Loans: on divorce, assigned solely to the party that incurred the debt.\n\nTort Liability to Spouse or Creditors\n\nSpouse Injures Other Spouse: any recovery is SP of injured spouse.\n\nSpouse Injured by 3rd Party: any recovery is CP, but in a property division on divorce, entire award goes to injured spouse so long as can be traced and was not already spent, unless interests of justice requires.  However, on death rather than divorce, treated as CP.\n\nTort Creditors of One Spouse: CP is subject to tort liability of either spouse.  If spouse committed tort to benefit community (e.g., drive child to school), liability is satisfied first from CP and then from spouse\xe2\x80\x99s SP.  If spouse not performing act for benefit of community, liability first satisfied from spouse\xe2\x80\x99s SP, and then from CP.  Can never reach non-negligent spouse\xe2\x80\x99s SP.\n\nContractual Liability to Creditors\n\nGenerally: contractual creditors of one spouse\n\nIntra-Marital Debts: can reach CP in satisfaction of a spouse\xe2\x80\x99s business debts.  \n\nPre-Marital Debts: can reach CP, except cannot reach earnings of nondebtor spouse held in separate account in which debtor spouse has no right of withdrawal and not commingled with CP.\n\nMedical Expenses: can reach CP and even non-debtor\xe2\x80\x99s SP because each spouse had duty to support other spouse and children, and is thus personally liable for their necessities.  However, if CP was available, non-debtor spouse may be reimbursed.  Note: spouse still liable even if, when debt incurred, spouses had separated and marital community ended, because, for this purpose only, still husband and wife until divorce.\n\nPrior Child/Spouse Support Obligations: if arose before marriage, even if ordered during, is considered pre-marital debt.  If after, intra-marital debt.  Treated like any other debt.  However, if CP is used for pre-marital, right to reimbursement if spouse had SP available to satisfy the obligations.  If not, no reimbursement.\n\nVice Debts: debts for gambling, prostitutes, even if legal, do not benefit community and, though creditors can reach CP, other spouse has right to offset in divorce.\n\nPost-Divorce: after divorce, a creditor cannot reach the CP awarded to a non-debtor spouse unless that spouse was assigned the debt by the court.\n\nManagement of CP: each spouse has equal management and control over all CP, and has full power to buy or sell CP and incur debts to community without other spouse\xe2\x80\x99s consent.  Exceptions:\n\nPersonal Family Belongings Exception: one spouse cannot encumber personal property used in family dwelling without written consent of other spouse, and harmed spouse can void the transfer.\n\nBusiness Exception: spouse operating business that is all or substantially all CP has primary management and control, and may act alone, except must give prior written notice of any sale, lease, or exchange of all or substantially all of personal family property used in the business.  If notice not given, spouse has remedy only if breach substantially impaired her interest, but cannot void the transfer.\n\nReal Property: for transfer of interest in real CP, both spouses must join in executing instrument of conveyance.  Neither spouse can convey their \xc2\xbd interest in CP, unless to pay for family attorney in divorce action (Family Attorney\xe2\x80\x99s Real Property Lien).\n\nWhen CP title in one spouse\xe2\x80\x99s name and he sells to a third party by misrepresenting his marital status, nonconsenting spouse has 1 year to bring action to void transfer, unless transferee not good-faith, in which case no SOL.  Transfer to good-faith purchaser is presumed valid, but may be rebutted, in which case transfer voided and purchase price must be returned to good-faith purchaser.\n\nForeign Property: where spouses move to CA from a non-CP jurisdiction, property acquired in other state during marriage which would be CP if acquired in CA is deemed \xe2\x80\x9cquasi-CP\xe2\x80\x9d, and treated like CP.  Same for SP.\n\nForeign Real Property: for purposes of division on divorce, quasi-CP foreign real property is treated as CP (and though no jurisdiction over property, jurisdiction over acquiring spouse); for purposes of division on death, though, foreign jurisdiction\xe2\x80\x99s law controls (no jurisdiction over dead spouse, and thus no jurisdiction over property).\n\nDeath of Non-Acquiring Spouse: Where non-acquiring spouse dies first, she has no power of disposition over quasi-CP.  Thus, she cannot devise quasi-CP.  However, where spouses move from a CP state, CA will treat not as quasi-CP, but as true CP.\n\nProperty Acquired Outside Marital Relation\n\nCommon Law Marriage: where people live together and hold themselves out as married: not recognized in CA, and thus property acquired is not CP, unless validly contracted in a recognizing state.\n\nPutative Spouse: if party has objectively reasonable and good-faith belief of marriage, assets are \xe2\x80\x9cquasi marital property\xe2\x80\x9d and split 50/50.  Be sure to make argument that while unclear, possible lying spouse may be entitled to less.\n\nUnmarried Cohabitants: governed by contract law.\n\nMiscellaneous\n\nU.S. Savings Bond is, under federal preemption, SP of named party.\n\n\n\nEssay Tips\n\n\n\n1.  First Paragraph of Any CP Essay Answer: California is a community property state.  In California, there is a community presumption, whereby all assets acquired during the marriage are presumptively community property. There are, however, areas of so-called separate property: property (1) owned by either spouse before marriage, (2) acquired by gift, will, or inheritance, or (3) acquired during the marriage with separate funds, and (4) rents, issue and property derived from separate property.\n\n\n\n2.  Look to certain key, threshold issues.  Divorce or death?  Out-of-State property?\n\n\n\n3.  Organize analysis under headings for each item of property.\n\n\n\n4.  For each item of property, address (1) the source of property, (2) basic presumption for that source; (3) any actions that would change that presumption (every sole bank account is a transmutation/gift issue), (4) any special rules that change presumption, and (5) distribution of property.'


b'Agency & Partnership Outline\n\n\n\nLiability of Principal for Torts of Agent: principal vicariously liable for agent\xe2\x80\x99s torts if (1) there is a principal-agent relationship and (2) tort committed within scope of agency.\n\nPrincipal-Agent Relationship: (1) Assent, (2) Benefit, and (3) Control.\n\nAssent: informal agreement between principal and agent.\n\nBenefit: agent\xe2\x80\x99s conduct for the principal\xe2\x80\x99s benefit.\n\nControl: principal has right to control the agent by having the power to supervise the manner of the agent\xe2\x80\x99s performance.\n\nSub-Agent: principal liable for sub-agent\xe2\x80\x99s tort only if ABC between principal and sub-agent.  Typically fails for lack of A & C.\n\nBorrowed Agent: borrowing principal liable for borrowed-agent\xe2\x80\x99s tort only if there is ABC between principal and sub-agent.  Typically fails for lack of C.\n\nIndependent Contractors \n\nRelationship: (1) Assent and (2) Benefit, but no right to control because no power to supervise.  \n\nRule: no vicarious liability, unless (1) ultra-hazardous activity or (2) estoppel\xe2\x80\x94principal holds out IC with appearance of agent.\n\nScope of Agency: consider whether (1) the conduct was of the kind the agent was hired to perform, (2) the tort occurred on the job, and (3) the agent benefitted the principal.\n\n\xe2\x80\x9cOn the Job\xe2\x80\x9d\n\nFrolic: a new and independent journey.  Not within scope\n\nDetour: mere departure from assigned task.  Within scope.\n\nBenefit: if the agent even in part intended to benefit the principal by its conduct, within scope.\n\nIntentional Torts: generally outside scope, unless (1) authorized by principal, (2) natural from the nature of employment, or (3) motivated by a desire to serve the principal.\n\nLiability of Principal for Contracts of Agent\n\nRule: principal liable for contracts of agent if the principal authorized the agent to enter into the contract.  Authority may be (1) actual express, (2) actual implied, (3) apparent, or (4) ratification.\n\nAgent Liability: liable for unauthorized contracts.  Generally, no liability for authorized contracts.  However, third-party can elect to hold agent liable even for authorized contract where principal partially disclosed (identity of principal concealed) or undisclosed  (fact or principal concealed).\n\nActual Express Authority: principal used words to express authority to agent, even if oral or private.  Exception: if contract itself must be in writing, authority must be in writing (Equal Dignities Rule).\n\nRevocation: can be revoked (1) by either principal or agent unilaterally; or (2) upon death or incapacity of principal, unless principal gives agent a durable power of attorney\xe2\x80\x94a written expression of authority to enter a transaction\xe2\x80\x94with conspicuous survival language.\n\nActual Implied Authority: authority through conduct or circumstances.\n\nNecessity: implied authority to do anything necessary to accomplish an expressly authorized task.\n\nCustom: implied authority to do anything customarily performed by persons with the agent\xe2\x80\x99s title or position.\n\nPrior Acquiescence by Principal: implied authority to do anything which the agent believes to have been authorized from the principal\xe2\x80\x99s prior acquiescence.\n\nApparent Authority: authority exists where (1) principal cloaked agent with the appearance of authority, and (2) third-party reasonably relies on appearance of authority.\n\nRatification: authority can be granted after the contract if principal (1) has knowledge of all material facts of contract and (2) accepted benefits of contract.  However, ratification must be complete\xe2\x80\x94cannot pick and choose contract\xe2\x80\x99s terms.\n\nDuties Agents Owe to Principals\n\nDuties: in return for reasonable compensation and reimbursement of expenses, agents owe (1) duty of care, (2) duty to obey reasonable instructions, and (3) duty of loyalty.  Agent cannot: engage in self-dealing, usurp the principal\xe2\x80\x99s opportunity, or earn secret profits (profits at principle\xe2\x80\x99s expense without disclosure).  \n\nRemedies: principal may recover losses caused by breach and disgorge profits.\n\nGeneral Partnership Formation: a GP is an association of 2 or more persons who are carrying on as co-owners of a business for profit.  No formalities are required.  Key factor is sharing of profits.  Therefore, the contribution of money or services in return for a share of profit\xe2\x80\x94not salary or loan interest\xe2\x80\x94creates a presumption that GP exists.  \n\nLiabilities of General Partners to 3rd Parties\n\nLiability of General Partnership: Agency Principles Apply: partners are agents of partnership for carrying on usual partnership business.  Thus, general partnership liable for each partner\xe2\x80\x99s torts in the scope of partnership business and for each partner\xe2\x80\x99s authorized contracts, unless third-party had notice of lack of authority.\n\nLiability of Each General Partner: each personally liable for all debts of the partnership and for each co-partner\xe2\x80\x99s torts.\n\nIncoming Partner Liability for Pre-Existing Debt: generally not liable, but any money paid in to partnership by incoming partner can be used to satisfy prior debts.\n\nDissociating Partner Liability for Subsequent Debts: retains liability on future debts until (1) actual notice of dissociation given to creditors or (2) 90 days after filing notice of dissociation with state.\n\nGeneral Partnership Liability by Estoppel: one who represents to a 3rd party that a GP exists will be liable as if a GP exists.\n\nRights & Liabilities Among General Partners\n\nFiduciary Duties: general partners are fiduciaries of each other and of the GP.  May never engage in self-dealing, usurpation of partnership opportunity, or secret profit.  Remedy: action for accounting.  GP can recover losses causes by partner\xe2\x80\x99s breach and disgorgement of profits.\n\nPartners\xe2\x80\x99 Rights in Partnership Property & Liquidity\n\nSpecific Partnership Assets: e.g., land, leases, equipment owned by the partnership.  May not be transferred by individual partners without partnership authority.  Hint: to determine ownership, look to whose money was used to purchase item: if personal, likely personal, if partnership, likely partnership.\n\nShare of Profits: personal property of partner and may be transferred.\n\nShare in Management: asset owned only by partnership itself, and therefore cannot be transferred.\n\nManagement: absent agreement (which they may freely do), each partner is entitled to equal control (vote) in management, regardless of share in profits.  For ordinary course decision, majority controls, but for matters outside ordinary course, unanimity required.  One partner cannot unilaterally limit another\xe2\x80\x99s equal power\xe2\x80\x94there must be a management agreement that does so, and third-parties not bound unless a statement of limitation of authority is filed with the state.\n\nSalary: absent agreement, partners get no salary.  However, partners receive compensation for one thing: helping to wind up partnership business.\n\nPartners\xe2\x80\x99 Share of Profits & Losses\n\nProfits: absent agreement, shared equally.  Agreement on losses has no effect.\n\nLoss: absent agreement, shared like profits.  Thus, could be shared per agreement on profits, even if agreement doesn\xe2\x80\x99t mention losses.\n\nGeneral Partnership Dissolution\n\nProcess.  First, Dissolution\xe2\x80\x94in the absence of an agreement that sets forth events of dissolution, a GP dissolves upon notice (written or oral) of the express will of just 1 general partner to dissociate.  Second, Winding Up\xe2\x80\x94period between dissolution and termination in which remaining partners liquidate the partnership\xe2\x80\x99s assets to satisfy partnership creditors.  Finally, Termination\xe2\x80\x94end of partnership.\n\nPartnership\xe2\x80\x99s Liability\n\nOld Business: partnership (and each partner) still liable on all transactions entered into to wind up old business in order to satisfy existing creditors.\n\nNew Business: only permissible new business is that to wind up partnership.  However, for any act, partnership (and each partner) still liable on new contracts until actual notice of dissolution is given to creditors or until 90 days after filing statement of dissolution with state.\n\nPriority of Distribution: each level of priority must be fully satisfied before next:\n\nCreditors: must pay all creditors, including all partners who have loaned money to the partnership. \n\nCapital Contributions by Partners: must fully repay capital contributions.\n\nProfits, if any, shared equally unless agreement otherwise.\n\nRule: if partnership does not have enough to pay i. or ii., individual general partners must contribute fair share of funds (even individual partner owed money thereunder)\xe2\x80\x94under usual formula for profits and losses, unless agreement.\n\nAlternative Unincorporated Business Organizations\n\nLimited Partnerships: a partnership with at least 1 general and 1 limited partner.\n\nFormation: must file Limited Partnership Certificate that includes names of all general partners.\n\nLiability & Control\n\nGeneral Partners: liable for all LP obligations, but have a right to manage the business.\n\nLimited Partners: not liable for the LP\xe2\x80\x99s obligations.  For control, the law in most states and in CA is still that a limited partner may not manage the business without forfeiting limited liability.  But, under the newly-revised Uniform Limited Partnership Act, may manage without forfeiting.\n\nRegistered Limited Liability Partnership (RLLP)\n\nFormation: register by filing a Statement of Qualification and annual reports.\n\nLiabilities: no partner, not even general partners, are liable for debts of RLLP.\n\nLimited Liability Company (LLC): a hybrid between a corporation and a partnership, in which owners\xe2\x80\x94members\xe2\x80\x94have the same limited liability as shareholders in a corporation and also the benefits of partnership tax treatment.\n\nFormation: must file Articles of Organization and may adopt an operating agreement.\n\nControl: members may control the business, but may also delegate control to a team of managers.\n\nLimited Liquidity: a full membership interest may not be transferred without unanimous consent of the members or as provided in the operating agreement.\n\nLimited Life: company will dissolve upon unanimous consent of members or as provided in the operating agreement.'


b"Constitutional Law Outline\n\n\n\nFederal Judicial Power: Article III\n\nCases & Controversies: Justiciability Requirements\n\n*Standing: is plaintiff proper party to bring matter to court\n\nInjury: has been or imminently will be injured\n\nMust be Personally Suffered Injury\n\nInjunctive or Declaratory Relief: must show likelihood of future personal harm.\n\nCausation & Redressability: defendant must have caused injury, so that favorable court decision will remedy decision.\n\nNo 3rd Party Standing: plaintiff cannot present the claims of another, unless (and plaintiff must meet all other standing requirements)\n\nClose Relationship: between plaintiff and injured party.  E.g., doctor-patient\n\n3rd Party Unlikely to Assert Rights\n\nOrganizations on Behalf of Members: so long as individual members have standing, interest is germane to organization\xe2\x80\x99s purpose, and the individuals\xe2\x80\x99 participation is unnecessary.\n\nNo Generalized Grievances: plaintiff cannot sue solely as citizen or taxpayer objecting to government conduct.  Exception: taxpayers may challenge government expenditures of money pursuant to statute as violating establishment clause.\n\nRipeness: may the federal court grant pre-enforcement review of a statute or regulation?  Courts analyze two factors:\n\nHardship of No Pre-Enforcement Review\n\nFitness of Record for Judicial Review \n\nMootness: if events after the lawsuit is filed end plaintiff\xe2\x80\x99s injury, the case should be dismissed, unless\n\nWrongs Capable of Repetition Yet Evading Review: must still have some chance, even remote, of happening to plaintiff.\n\nVoluntary Cessation: if defendant halts voluntary practice but can resume at any time, no mootness.\n\nClass Action Suits: if named plaintiff\xe2\x80\x99s claim becomes moot, class not dismissed so long as one member has ongoing injury.\n\nPolitical Question Doctrine: claims of constitutional violations that are left to political branches to resolve:\n\nRepublican Form of Government Clause\n\nPresident\xe2\x80\x99s Conduct of Foreign Policy\n\nImpeachment & Removal Process\n\nPartisan Gerrymandering\n\nSupreme Court Review: requires Case or Controversy, and\n\nCertiorari: discretionary review: all cases from state court or federal circuits.\n\nDirect, Non-Discretionary Appeal: 3-judge district court\n\nOriginal & Exclusive Jurisdiction: suits between states\n\nFinal Judgment required\n\nCannot be Independent & Adequate Ground of State Court Decision\n\nLower Federal Court Review: requires Case or Controversy, and\n\nSovereign Immunity: 11th Amendment: bars suits against state (bit not local) governments, in state courts, federal agencies, and federal courts, unless\n\nWaiver: must be explicit\n\n14th Amendment: state can be sued under statute adopted under Section 5 of the 14th Amendment\n\nFederal Government may sue state governments\n\nBankruptcy Proceedings: state cannot assert sovereign immunity in a bankruptcy proceeding.\n\nState Officers May Be Sued for Injunctive Relief, or for personal liability.\n\nAbstention: instances with jurisdiction but refusal to hear: federal courts may not enjoin pending state court proceedings.\n\nFederal Legislative Power\n\nSources of Congressional Authority\n\nRequires Express or Implied Authority: there is no general federal police power, unless legislating for military, Indian reservations, federal territories, or D.C.\n\nNecessary & Proper Clause: Congress can take all actions necessary and proper to carry out its authority, and may choose any means not prohibited to do so.\n\nTaxing, Spending, & Commerce Clause\n\nGeneral Welfare: congress may create any tax and spend in any way for the general welfare.\n\nCommerce Clause: Congress can regulate foreign and interstate by regulating any of the following:\n\nChannels of Interstate Commerce: highways, streams, etc.\n\nInstrumentalities of Interstate Commerce & Persons or Things in Interstate Commerce: internet, telephones, mails, cattle, etc.\n\nActivities With Substantial Effect on Interstate Commerce: intra-state activities with some, even minor, effect on interstate commerce.  However, in the area of non-economic activity, \xe2\x80\x9csubstantial effect\xe2\x80\x9d cannot be based on cumulative act (e.g., cannot regulate violence against women even though significant cumulative impact on economy).\n\nException: laws regulating guns in school zones exceed commerce clause power.\n\n14th Amendment Section 5: Congress cannot create new rights or expand the scope of rights, but can act (i.e., pass laws) to prevent or remedy violations of rights already recognized by the courts, and such laws must be proportional and congruent to remedying constitutional violations.\n\n10th Amendment Limitation: all powers not granted to federal government are reserved to the states.\n\nCongress Cannot Compel State Activity: congress cannot compel state legislative or regulatory activity.  However, Congress can induce states if conditions are (1) clearly stated, (2) not unduly coercive, and (3) related to program.  E.g., reducing federal funding for other related programs.\n\nCongress May Prohibit Harmful State Commercial Behavior\n\nCongressional Delegation of Powers\n\nNo Limit: no limit exists on Congressional authority to delegate powers.\n\nLegislative Vetoes & Line-Item Vetoes Unconstitutional\n\nLegislative Veto: Congress cannot attempt to overturn an executive branch action without bicameralism and/or presentment\n\nLine Item Veto: president cannot veto part of a bill while signing the rest into law.\n\nCongress Cannot Delegate Executive Power to itself or others to implement or enforce the law.\n\nFederal Executive Power\n\nForeign Policy\n\nTreaties: requires senate ratification\n\nSupersedes All State Laws\n\nTreaty vs. Federal Statute: most recent control\n\nConstitution Supersedes All Treaties\n\nExecutive Agreements: agreements between U.S. & foreign country effective when signed by countries\xe2\x80\x99 leaders\n\nMay be Used for Any Purpose (including those for treaties)\n\nExecutive Agreements Prevail Over State, But Not Federal, Law.\n\nCommander in Chief: powers to use troops in foreign countries is very broad.\n\nDomestic Affairs\n\nAppointment & Removal Power\n\nWho Possesses: \n\nPresident appoints ambassadors, federal judges, and officers of the U.S., and senate must confirm. \n\nCongress may vest appointment of inferior officers in president, federal department heads, or lower federal courts.   An inferior officer is someone that can be fired by a superior officer.\n\nCongress cannot give appointment power to itself or its officers.\n\nRemoval Power: president may fire any executive branch official unless limited by statute.  Congress can limit removal by statute if (1) independence from president is important, and (2) statute merely limits removal to good cause, but but does not prohibit it altogether.\n\nImpeachment & Removal\n\nPresident, VP, federal judges, and all other officers may be impeached and removed for treason, bribery, or high crimes and misdemeanors.\n\nImpeachment does not remove a person from office.  House impeaches (majority vote), then trial in senate.  Only if senate convicts (2/3 vote) is officer removed.\n\nPresidential Civil Immunity: President has absolute immunity for civil suits for money damages for anything done in carrying out presidency, but no immunity for acts prior to taking office.\n\nExecutive Privilege: protects papers & conversations with advisors, but yields to overriding need for the information.\n\nPardon Power: president has power to pardon all accused or convicted of federal crimes, but no pardon for impeachment.\n\nFederalism: limits on state and local government power\n\nPreemption: Supremacy Clause: federal law trumps state law\n\nExpress: states that it is exclusive\n\nImplied\n\nFederal & State Law Mutually Exclusive\n\nImpedes Achievement of Federal Objective\n\nCongress Evidences Clear Intent to Preempt: e.g., immigration law.\n\nState Cannot Tax or Regulate Federal Activity: state cannot put substantial burden on federal activity.\n\nDormant Commerce Clause, Privileges & Immunities Clause\n\nDefinitions\n\nDormant Commerce Clause: state or local law is unconstitutional if it places an undue burden on interstate commerce.\n\nArt. 4 Privileges & Immunities Clause: no state may deprive a citizen of another state of the privileges and immunities it accords its own citizens.\n\n14th Amendment Privileges or Immunities Clause: no state can unduly burden U.S. citizen\xe2\x80\x99s right to travel.\n\nIf State Law Does Not Discriminate Against Out-of-Staters\n\nArt. 4 Privileges & Immunities Clause Inapplicable\n\nDormant Commerce Clause Test: if law puts a burden on interstate commerce, it violates the Dormant Commerce Clause if the burdens outweigh the benefits to state and local governments.\n\nIf State Law Discriminates Against Out-of-Staters\n\nDormant Commerce Clause: if the law burdens interstate commerce, it violates Dormant Commerce Clause unless it is necessary to achieve an important state objective.  Exceptions:\n\nCongressional Approval: if Congress approves of state or local law, it is permissible.  No more dormancy.\n\nMarket Participant Exception: state or local government may favor its own citizens in receiving benefits from state government programs or in doing business with the state.\n\nArt. 4 Privileges & Immunities Clause: discrimination permitted if necessary to achieve important government purpose.\n\nDiscrimination Must Regard Civil Liberties or Important Economic Activities: ability to hunt for sport not enough.\n\nCorporations & Aliens: cannot invoke this provision  (but can sue under Dormant Commerce Clause).\n\nState Taxation of Interstate Commerce\n\nStates may not use their tax systems to help in-state businesses.\n\nState only may tax activities that have substantial nexus to the state\n\nState taxation of interstate companies must be fairly apportioned\n\nFull Faith & Credit: courts in one state must enforce judgments from other states so long as all of the following requirements are met:\n\nIssuing Court Had Subject Matter & Personal Jurisdiction\n\nJudgment on Merits\n\nFinal Judgment\n\nStructure of Constitutional Protections for Individual Liberties\n\nIs There Government Action?\n\nRule: Constitution applies to state, not private, action.\n\nExceptions: private conduct to which Constitution applies\n\nPublic Functions Exception: if private entity is performing task traditionally and exclusively done by government, Constitution applies.  Very narrow.\n\nEntanglement: if government authorizes, encourages or facilitates private conduct, the Constitution applies.  Examples:\n\nCourts Cannot Enforce Racially Restrictive Covenant\n\nState Action Where State Leases Space\n\nState Action By Provision Of Free Textbooks To Schools\n\nNo State Action By Private School Despite Government Funding: government subsidy by itself is not enough for state action.\n\nNo State Action For Collegiate Sports Decisions\n\nState Action Where Private Entity Regulates Sports Within State\n\nNo State Action By Private Club With Liquor Licence\n\nConstitution vs. Statute: Congress by statute may apply constitutional norms to private conduct.  \n\n13th Amendment: Congress may prohibit private race discrimination through statute pursuant to 13th Amendment.\n\nCommerce Clause: Congress can use its commerce clause authority to prohibit private discrimination.\n\n14th Amendment Section 5: when regulating under this section, Congress only has authority over state and local governments, not private conduct.\n\nApplication of the Bill of Rights\n\nGeneral Application: applies directly only to the federal government, but is applied to state governments through the 14th Amendment Due Process Clause.  Only 4 provisions have not yet been found to be incorporated:\n\n3rd Amendment Rights Against Quartering\n\n5th Amendment Right to Grand Jury Indictment\n\n7th Amendment Right to Civil Jury Trial\n\n8th Amendment Right Against Excessive Fines\n\nLevels of Scrutiny: a law will be upheld if:\n\nStrict Scrutiny: necessary to achieve a compelling government purpose.  Only government\xe2\x80\x99s actual objective will be analyzed.  Government has burden of proof.\n\nIntermediate Scrutiny: substantially related to an important government purpose.  Only government\xe2\x80\x99s actual objective will be analyzed, not simply conceivable one.  Government has burden of proof.\n\nRational Basis: rationally related to a legitimate government purpose.  Any conceivable legitimate purpose is sufficient.  Challenger has burden of proof.\n\nProtected Individual Liberties\n\nDefinitions\n\nProcedural Due Process: procedures that government must follow when depriving of life, liberty or property\n\nSubstantive Due Process: asks whether government have adequate reason for deprivation\n\nEqual Protection: whether government\xe2\x80\x99s differential treatment are justified\n\nProcedural Due Process\n\nHas There Been Governmental Deprivation of Life, Liberty, or Property\n\nDefinitions\n\nDeprivation of Liberty: loss of a significant freedom provided by the constitution or statute.  However, reputational harm itself does not count.\n\nDeprivation of Property: an unfulfilled entitlement.  An entitlement is a reasonable expectation of continued receipt of a benefit.\n\nGovernment Negligence: insufficient as a deprivation of due process.  However, in emergency situation, liability if conduct \xe2\x80\x9cshocks the conscience.\xe2\x80\x9d\n\nFailure to Protect: government\xe2\x80\x99s failure to protect people from privately-inflicted harm does not deny due process.  Exception: custody, or government creates the danger.\n\nIf So, What Procedures Are Required?\n\nTest: balance\n\nImportance of Interest to Individual\n\nAbility of Additional Procedures to Increase Accuracy of Fact-Finding\n\nGovernment\xe2\x80\x99s Interest\n\nExamples\n\nWelfare Benefits: before termination, must be notice & hearing\n\nSocial Security Disability: need only a post-termination hearing\n\nStudent Discipline: notice of charges & opportunity to explain\n\nChild Custody: notice & hearing before termination\n\nPunitive Damages: require instructions to jury + judicial review, and grossly excessive punitive damages violate due process\n\nU.S. Citizen Enemy Combatant: must be given due process\n\nPrejudgment Attachment: except in exigent circumstances, must be preceded by notice & hearing.  Note: government may seize property used in crime, even if innocent owner.\n\nEconomic Liberties: money, jobs\n\nRational Basis: deprivation of economic liberties subject to rational basis review.\n\nTakings Clause: government may take private property for public use if it provides just compensation.\n\nIs There A Taking?\n\nPossessory Taking: confiscation or physical occupation of property, even if but a single inch.\n\nRegulatory Taking: regulation that leaves no reasonable economically viable use of the property.  \n\nGovernment conditions on the development of a property must be justified by a benefit roughly proportionate to burden imposed.\n\nProperty owner may bring challenge even as to regulations already in place at the time the property was acquired.\n\nTemporarily denying owner ability to develop property is not a taking, so long as delay is reasonable.\n\nIs It For Public Use?  So long as government acts out of reasonable belief that taking will benefit the public.  Even if property given to private parties.\n\nHas Just Compensation Been Paid: measured by loss to the owner; gain to taker is irrelevant.\n\nContracts Clause: no state shall substantially impair existing contracts\n\nPrivate Contracts: Intermediate Scrutiny: state impairment permitted where reasonably and narrowly tailored to serve legitimate and important government purpose.\n\nState Government Contracts: Strict Scrutiny\n\nEx post facto clause does not apply in civil cases.  It is wrong answer.  Retroactive civil need only meet rationale basis.\n\nRight to Privacy: fundamental right generally triggering strict scrutiny, including\n\nMarry\n\nProcreate\n\nCustody of One\xe2\x80\x99s Children\n\nKeep Family Together (includes extended family)\n\nControl Children\xe2\x80\x99s Upbringing\n\nContraceptives\n\nAbortion: not strict scrutiny\n\nPrior to Viability: may not prohibit abortion, but can regulate so long as no undue burden.  24-hour wait, and prohibition on partial-birth, is OK.\n\nViability (when fetus can survive outside of womb): may prohibit abortion unless necessary to protect woman\xe2\x80\x99s life or health.\n\nSubsidization: no government duty to subsidize or use public facilities for abortions.\n\nSpousal Consent/Notification Unconstitutional\n\nParental Notice/Consent: state may require parental notice or consent for unmarried minor\xe2\x80\x99s abortion but only if there is alternative procedure where minor can go before judge, who can find maturity or in best interest\n\nPrivate Consensual Homosexual Activity: but level of scrutiny unclear.\n\nRight to Refuse Medical Treatment: level of scrutiny unclear: competent adults can refuse medical care; state may require clear and convincing evidence that person wants treatment terminated; state may prevent family members from terminating treatment for another.\n\nNo Right to Physician-Assisted Suicide\n\n2nd Amendment: non-absolute right to guns in home for security. Level of scrutiny unclear.  \n\nTravel: interstate travel is a fundamental right\n\nLaws preventing people from entering a state must meet strict scrutiny\n\nDurational Residency Requirements: must meet strict scrutiny\n\nRestrictions on Foreign Travel: rational basis scrutiny\n\nVote\n\nLaws preventing some citizens from voting must meet strict scrutiny\n\nOne Person, One Vote must be met for all elections, and electoral districts must be roughly equal in population\n\nAt-Large elections permitted unless proof of discriminatory purpose\n\nUse of race in drawing election district lines must meet strict scrutiny\n\nCounting uncounted votes without standards in a presidential election violates equal protection\n\nNo Fundamental Right to Education\n\nEqual Protection\n\nApproach:\n\nWhat is the Classification?\n\nWhat Level of Scrutiny?\n\nIs Scrutiny Met?\n\nClassification Based on Race or National Origin\n\nStrict Scrutiny Applies\n\nHow Discriminatory Classification Proven?\n\nFacial Discrimination: law on its face classifies\n\nFacially Neutral, But Discriminatory Impact & Intent\n\nNote: if neither is met, apply rational basis\n\nClassifications Benefitting Minorities\n\nStrict Scrutiny Applies\n\nQuotas Require Clear Proof of Past Discrimination\n\nSchool Admissions: may use race as factor in decisions, but cannot add points to application based on race.\n\nPublic School Assignment: race cannot be used in assigning students to schools, unless strict scrutiny is met.\n\nGender Classification\n\nIntermediate Scrutiny Applied, but justification must be exceedingly persuasive.\n\nHow Classification Proven\n\nFacial Discrimination\n\nFacially Neutral, But Discriminatory Impact & Intent\n\nNote: if neither is met, apply rational basis\n\nClassifications Benefitting Women\n\nIntermediate Scrutiny Applies\n\nIf based on role stereotypes, unconstitutional.\n\nIf designed to remedy past discrimination, likely constitutional.\n\nAlienage Classifications: laws discriminating against non-U.S. citizen\n\nGenerally, Strict Scrutiny Applies \n\nRelate to Self-Government/Democratic Process: Rational Basis: government can deny non-citizens voting, serving on jury, police officer, teacher, probation officer.\n\nCongressional Discrimination: rational basis\n\nUndocumented Alien Children: Intermediate Scrutiny\n\nNon-Marital Children: Intermediate Scrutiny.  Laws providing benefit to all marital children but no non-marital children are unconstitutional.\n\nRational Basis Classifications\n\nAge\n\nDisability\n\nWealth\n\nEconomic Regulations\n\nSexual Orientation\n\nReligion: no case yet.  Always has been strict scrutiny under Establishment Clause.\n\nEqual Protection & Fundamental Rights: where action burdens a fundamental right, but the classification would otherwise be rational basis, apply strict scrutiny but note how it is based on the fundamental right, not the classification.\n\n*First Amendment\n\nFree Speech Methodology\n\nContent-Based v. Content-Neutral Laws\n\nContent-Based Laws: Strict Scrutiny.  Two types:\n\nSubject-Matter Restriction: application of the law depends on the content of the speech.\n\nViewpoint Restriction: application of law depends on ideology of the message.\n\nContent-Neutral Laws: Intermediate Scrutiny\n\nPrior Restraint: Generally: disfavored, and requires narrowly tailored measure to protect against special societal harm\n\nCourt Orders Preventing Speech: Strict Scrutiny.  However, procedurally proper court orders must be complied with until overturned.  Person can be punished for violating a court order, and is barred from challenging.\n\nLicensing/Permit Systems: permitted if government has important reason for licensing, clear criteria giving agency little discretion, and procedural safeguards.\n\nVagueness & Overbreadth\n\nVagueness: laws regulating speech must be clear about what is prohibited.\n\nOverbreadth: regulates substantially more speech than permitted under 1st Amendment.\n\nFighting Words Laws: always vague and unconstitutional.\n\nSymbolic Speech: government may regulate communicative conduct if it has an important interest unrelated to suppression of the message and impact on communication is no greater than necessary.  Burning flag OK, but not draft card.\n\nCampaigns: may limit contributions, but not expenditures.\n\nAnonymous Speech: protected\n\nGovernment Speech: cannot be challenged under 1st Amendment.\n\nUnprotected & Less-Protected Speech\n\nIncitement of Illegal Activity: government may punish speech if there is a substantial likelihood of imminent illegal activity and the speech is directed to causing it.\n\nObscenity\n\nRule: obscenity is material that (1) appeals to prurient interest; (2) is patently offensive under law at issue; and (3) taken as a whole, material must lack serious redeeming artistic, literary, political, or scientific value (measured nationally).\n\nZoning Ordinances: may be used to regulate location of adult stores.\n\nChild Pornography: may be banned, even if not obscene\n\nPrivate Possession of Obscenity: cannot be prohibited.\n\nAsset Seizure: government may seize all assets of businesses convicted of violating obscenity laws.\n\nProfane & Indecent Speech: generally protected unless in free media or school\n\nCommercial Speech\n\nFalse/Deceptive Advertising unprotected\n\nTrue Ads: may be regulated if inherently risks deception\n\nGovernment May Prohibit Professional Advertising/Trade Names\n\nMay Prohibit Attorney In-Person Solicitation for Profit\n\nCannot Prohibit Accountant In-Person Solicitation for Profit\n\nOther Regulation: Intermediate Scrutiny\n\nDefamation\n\nPublic Official or Figure: can recover for defamation only by proving falsity and actual malice (knows falsity or acted recklessly).\n\nPrivate Figure, Public Concern: can recover by proving falsity and negligence.  To get presumed or punitive damages, actual malice required.\n\nPrivate Figure, Private Concern: can recover presumed or punitive damages without proving actual malice.\n\nIntentional Infliction of Emotion Distress: cannot evade defamation requirements by suing for IIED.  Must meet standards for defamation, and no IIED for protected speech.\n\nPrivacy\n\nTruthful Reporting of Lawfully Obtained Information: no liability\n\nMedia Broadcast of Illegally Intercepted Communication: no liability if media did not participate and involves matter of public importance.\n\nGovernment Disclosure: government may limit its dissemination of information to protect privacy.\n\nAccess to Trials: right to access criminal trials, but may be limited by overriding interest articulated in findings by trial judge\n\nGovernment Employee Speech: no protection for speech on the job in performance of their duties.\n\nPlaces Available for Speech\n\nPublic Fora: places government is required to make available for speech.  Regulation permitted, but only if the regulation is (1) subject-matter and viewpoint neutral, and (2) a time, place, or manner regulation that serves an important government purpose and leaves open alternative places for communication.  Need not use least-restrictive alternative.  Cannot have discretion to set permit fees for demonstrations.  E.g., sidewalks.\n\nDesignated Public Fora: government properties that could be closed to speech but government chooses to open to speech.  Same rules as public fora.  E.g., schools after hours.\n\nLimited Public Fora: government properties that government opens only to some groups and for some topics.  Regulation permitted if reasonable and viewpoint neutral.  E.g., bus advertisements.\n\nNon-Public Fora: government properties can and does close to speech.  Regulation permitted if reasonable and viewpoint neutral.  E.g., courtrooms, military bases, areas outside prisons and jails, sidewalks on post-office property, airports (ok to prohibit solicitation of money, but not distribution of literature).\n\nPrivately Owned Property: no right.  E.g., private shopping center.\n\nFreedom of Association: Fundamental Right, Strict Scrutiny\n\nMembership in a Group: may be punished only if the defendant is (1) actively affiliated with the group, (2) knows of the group\xe2\x80\x99s activities; and (3) has the specific intent of furthering those illegal activities.\n\nLaws Requiring Disclosure of Group Membership: where disclosure would chill association, Strict Scrutiny.\n\nProhibiting Group From Discriminating: constitutional unless interfere with intimate association or expression activity.\n\nFreedom of Religion\n\nFree Exercise Clause \n\nWhat Constitutes Religious Belief?  Need not recognize supreme being nor be a traditional, major, or recognized religion, so long as belief is genuine/sincere and occupies place in life similar to regular religious belief  \n\nCannot be used to challenge a neutral law of general applicability.\n\nGovernment may not deny benefits to individuals who quit their jobs for religious reasons.\n\nEstablishment Clause\n\nSect Preference: Strict Scrutiny\n\nNo Sect Preference: law is constitutional if (1) secular purpose for the law; (2) effect neither advances nor inhibits religion; and (3) no excessive entanglement with religion.\n\nGovernment generally cannot pay teachers salaries in parochial schools, as it would then have to monitor whether they taught religion, and this would be excessive entanglement.\n\nDiscrimination Triggers Strict Scrutiny\n\nGovernment-sponsored religious activities in public schools unconstitutional.  E.g., school prayer, even if voluntary.\n\nGovernment may give aid to parochial schools so long as not actually used for religious instruction.  Government may provide vouchers that parents can use in public schools.\n\n\n\nEssay Tips\n\n\n\n1.  If question involves plaintiff seeking declaratory judgment, look to both standing and ripeness.\n\n2.  On a Commerce Clause issue, if the actor is Congress, look at its authority to act; if the actor is a state, analyze the Dormant Commerce Clause.\n\n3.  Always start by asking who the actor is: Congress, president/executive branch, federal courts, states, private individuals.\n\n4.  If a right is not fundamental, or a discrimination not subject to strict or heightened scrutiny, apply the rational basis test.  That is, if nothing else, always apply rational basis to any deprivation, burden, or differential treatment.\n\n5.  Even if a law fails because it is vague or overbroad, also discuss how it would fail under strict scrutiny.  This overlaps, and is a good way to get extra points.\n\n\n\n\nConstitutional Law Checklist Outline & Hard Sheet\n\n\n\nFederal Judicial Power: Article III\n\nCases & Controversies: Justiciability Requirements\n\n*Standing\n\nInjury: has been or imminently will be personally injured\n\nCausation & Redressability favorable court decision will remedy decision.\n\nNo 3rd Party Standing, unless\n\nClose Relationship\n\n3rd Party Unlikely to Assert Rights\n\nOrganizations on Behalf of Members: so long as individual members have standing, interest is germane to organization\xe2\x80\x99s purpose, and the individuals\xe2\x80\x99 participation is unnecessary.\n\nNo Generalized Grievances: cannot sue solely as citizen or taxpayer, but taxpayers may challenge government expenditures of money pursuant to statute as violating establishment clause.\n\nRipeness: courts analyze two factors:\n\nHardship of No Pre-Enforcement Review\n\nFitness of Record for Judicial Review \n\nMootness: dismiss, unless\n\nWrongs Capable of Repetition Yet Evading Review: must still have some chance, even remote, of happening to plaintiff.\n\nVoluntary Cessation:\n\nClass Action Suits: so long as one member has ongoing injury.\n\nPolitical Question Doctrine: courts will not address\n\nRepublican Form of Government Clause\n\nPresident\xe2\x80\x99s Conduct of Foreign Policy\n\nImpeachment & Removal Process\n\nPartisan Gerrymandering\n\nLower Federal Court Review: requires Case or Controversy, and\n\nSovereign Immunity: 11th Amendment: bars suits against state (but not local) governments, in state courts, federal agencies, and federal courts, unless\n\nExplicit Waiver\n\nStatute Under 14th Amendment \xc2\xa7 5\n\nSuit By Federal Government\n\nBankruptcy Proceedings\n\nState Officers for injunctive relief, or for personal liability.\n\nAbstention: federal courts don\xe2\x80\x99t enjoin pending state court proceedings.\n\nFederal Legislative Power\n\nSources of Congressional Authority\n\nRequires Express or Implied Authority: no general police power\n\nNecessary & Proper Clause\n\nTaxing, Spending, & Commerce Clause\n\nTax for General Welfare\n\nCommerce Clause: may regulate\n\nChannels of Interstate Commerce\n\nInstrumentalities of Interstate Commerce & Persons or Things in Interstate Commerce\n\nActivities With Substantial Effect on Interstate Commerce: intra-state activities with even minor, effect on interstate commerce.  However, in the area of non-economic activity, \xe2\x80\x9csubstantial effect\xe2\x80\x9d cannot be based on cumulative act (e.g., cannot regulate violence against women even though significant cumulative impact on economy).\n\nException: regulating guns in school zones exceed commerce clause power.\n\n14th Amendment \xc2\xa7 5: Congress cannot create new rights or expand the scope of rights, but can pass proportional & congruent laws to prevent or remedy violations of recognized rights, and laws bind state & federal government.\n\n10th Amendment Limitation: all powers not granted to federal government are reserved to the states.\n\nCongress Cannot Compel State Activity: congress cannot compel state legislative or regulatory activity.  However, Congress can induce states if conditions are (1) clearly stated, (2) not unduly coercive, and (3) related to program.  E.g., reducing federal funding for other related programs.\n\nCongress May Prohibit Harmful State Commercial Behavior\n\nCongressional Delegation of Powers\n\nNo Limit On Delegation of Own Powers\n\nLegislative Veto Unconstitutional: Congress cannot attempt to overturn an executive branch action without bicameralism and/or presentment\n\nLine Item Veto Unconstitutional: president cannot veto only part of a bill\n\nCongress Cannot Delegate Executive Power to itself or others\n\nFederal Executive Power\n\nForeign Policy\n\nTreaties: requires senate ratification\n\nSupersedes All State Laws\n\nTreaty vs. Federal Statute: most recent control\n\nExecutive Agreements: agreements between U.S. & foreign country effective when signed by countries\xe2\x80\x99 leaders\n\nMay be Used for Any Purpose\n\nExecutive Agreements Prevail Over State, But Not Federal, Law.\n\nDomestic Affairs\n\nAppointment Power\n\nPresident appoints ambassadors, federal judges, and officers of the U.S., and senate must confirm.  Congress cannot give itself this power.\n\nCongress may vest appointment of inferior officers in president, federal department heads, or lower federal courts. \n\nRemoval Power: president may fire any executive branch official unless limited by statute.  Congress can limit removal by statute if (1) independence from president is important, and (2) statute merely limits removal to good cause, but does not prohibit it altogether.\n\nImpeachment & Removal\n\nPresident, VP, federal judges, and all other officers may be impeached and removed for treason, bribery, or high crimes and misdemeanors.\n\nHouse impeaches by majority vote, then trial in senate, and removal only if convicted by 2/3 vote\n\nPresidential Civil Immunity: for civil suits for money damages for anything done in carrying out presidency, but no immunity for acts prior to taking office.\n\nExecutive Privilege: but yields to overriding need for the information.\n\nPardon Power: but no pardon for impeachment itself\n\nFederalism: limits on state and local government power\n\nPreemption: Supremacy Clause: federal law trumps state law\n\nExpress: states that it is exclusive\n\nImplied\n\nFederal & State Law Mutually Exclusive\n\nImpedes Achievement of Federal Objective\n\nCongress Evidences Clear Intent to Preempt: e.g., immigration law.\n\nState Cannot Tax or Regulate Federal Activity: state cannot put substantial burden on federal activity.\n\nDormant Commerce Clause, Privileges & Immunities Clause\n\nDefinitions\n\nDormant Commerce Clause: state law unconstitutional if it places an undue burden on interstate commerce.\n\nArt. 4 Privileges & Immunities Clause: no state may deprive a citizen of another state of the privileges and immunities it accords its own citizens.\n\n14th Amendment Privileges or Immunities Clause: no state can unduly burden U.S. citizen\xe2\x80\x99s right to travel.\n\nIf State Law Does Not Discriminate Against Out-of-Staters\n\nArt. 4 Privileges & Immunities Clause Inapplicable\n\nDormant Commerce Clause Test: violated if burden on interstate commerce outweighs benefits to state governments\n\nIf State Law Discriminates Against Out-of-Staters\n\nDormant Commerce Clause: violated unless burden on interstate commerce necessary to achieve an important state objective.  Exceptions:\n\nCongressional Approval (i.e., no more dormancy)\n\nMarket Participant Exception: state may favor own citizens in receiving benefits from state programs or doing business with state\n\nArt. 4 Privileges & Immunities Clause: discrimination permitted if necessary to achieve important government purpose.\n\nDiscrimination Must Regard Civil Liberties or Important Economic Activities: ability to hunt for sport not enough.\n\nCorporations & Aliens: cannot invoke this provision  (but can sue under Dormant Commerce Clause).  *Be careful any time a corporation is being injured by economic regulation.\n\nState Taxation of Interstate Commerce\n\nStates may not use their tax systems to help in-state businesses.\n\nState only may tax activities that have substantial nexus to the state\n\nState taxation of interstate companies must be fairly apportioned\n\nFull Faith & Credit: courts in one state must enforce judgments from other states so long as issuing court had SMJ and PJ and judgment was final and on the merits\n\nStructure of Constitutional Protections for Individual Liberties\n\nIs There Government Action?\n\nRule: Constitution applies to state, not private, action.\n\nExceptions: private conduct to which Constitution applies\n\nPublic Functions Exception: private entity performing task traditionally and exclusively done by government\n\nEntanglement: if government authorizes, encourages or facilitates private conduct, the Constitution applies.  Examples:\n\nGovernment Action\n\nCourt Enforcing Racially Restrictive Covenant\n\nGovernment Leases Office Space\n\nGovernment Provides Free Textbooks to School\n\nPrivate Entity Regulates Sports Within State\n\nNo Government Action\n\nPrivate School Despite Government Funding: government subsidy by itself is not enough for state action\n\nCollegiate Sports Decisions\n\nPrivate Club With Liquor License\n\nStatutory Constitutional Norms: Congress may enact statute pursuant to following provision to apply constitutional norms to private conduct: \n\n13th Amendment: to prohibit private race discrimination \n\nCommerce Clause: to prohibit private discrimination\n\nNO: 14th Amendment Section 5: under this section, Congress only has authority over state and local governments, not private conduct.\n\nApplication of the Bill of Rights\n\nGeneral Application: applies directly only to the federal government, but is applied to state governments through the 14th Amendment Due Process Clause.  Only 4 provisions have not yet been found to be incorporated:\n\n3rd Amendment Rights Against Quartering\n\n5th Amendment Right to Grand Jury Indictment\n\n7th Amendment Right to Civil Jury Trial\n\n8th Amendment Right Against Excessive Fines\n\nLevels of Scrutiny: a law will be upheld if:\n\nScrutiny\n\nStandard\n\nBurden\n\nStrict\n\nNecessary to achieve compelling purpose\n\nGov\xe2\x80\x99t\n\nIntermediate\n\nSubstantially related to important purpose\n\nGov\xe2\x80\x99t\n\nRational Basis\n\nRationally relates to any conceivable legitimate purpose\n\nPlaintiff\n\nProtected Individual Liberties, Rights & Property\n\nProcedural Due Process\n\nHas There Been Governmental Deprivation of Liberty or Property?\n\nLiberty: significant freedom provided by constitution or statute\n\nProperty: entitlement (reasonable expectation of continued receipt of benefit)\n\nGovernment Negligence: insufficient unless \xe2\x80\x9cshocks the conscience\xe2\x80\x9d\n\nFailure to Protect: insufficient unless custody or gov\xe2\x80\x99t creates danger\n\nIf So, What Procedures Are Required?  Balance\n\nImportance of Interest to Individual\n\nAbility of Additional Procedures to Increase Accuracy of Fact-Finding\n\nGovernment\xe2\x80\x99s Interest (typically efficiency)\n\nEconomic Liberties & Property: money, jobs\n\nGeneral Rule: Rational Basis is default for any economic deprivation\n\nTakings Clause: requires for public use + just compensation\n\nIs There A Taking?\n\nPossessory Taking: even a single inch\n\nRegulatory Taking: leaves no reasonable economically viable use\n\nProperty Development Conditions: must be justified by benefit roughly proportionate to burden imposed.\n\nProperty Owner May Challenge Pre-Purchase Regulations\n\nTemporary Denial of Development Ability not a taking if reasonable\n\nIs It For Public Use?  Yes if reasonable belief that taking will benefit public\n\nHas Just Compensation Been Paid?  Measured only by loss to owner.\n\nContracts Clause: no state may substantially impair existing contracts\n\nPrivate Contracts: Intermediate Scrutiny\n\nState Contracts: Strict Scrutiny\n\nFundamental Rights\n\nMarry\n\nProcreate\n\nContraceptives\n\n\n\nStrict Scrutiny\n\nStrict ScrutinyCustody of One\xe2\x80\x99s Children\n\nKeep (Extended) Family Together\n\nControl Children\xe2\x80\x99s Upbringing\n\nVote\n\nInterstate Travel\n\n\n\n\n\n\nScrutiny Unclear\n\nScrutiny UnclearPrivate Consensual Homosexual Activity\n\nRefuse Medical Treatment\n\n2nd Amendment Right to Gun\n\n\n\nAbortion\n\nPrior to Viability: No Undue Burden: cannot prohibit, but may regulate.\n\nViability: can prohibit abortion unless necessary to protect life or health\n\nNo Government Duty to Subsidize/Provide Facility\n\nSpousal Consent/Notification Unconstitutional\n\nParent Notice/Consent: can be required only if alternative procedure before judge.\n\n    Note: no fundamental right to education, foreign travel, practice trade, physician- \n\n    assisted suicide, and so apply rational basis.\n\n\n\n\n\n1.  Types of Classifications\n\nFacial Classification\n\nFacially Neutral But Discriminatory Impact + Intent\n\nIf neither, go straight to rational basis\n\n2.  Levels of Scrutiny\n\nStrict Scrutiny\n\n\n\nRace\n\nNational Origin\n\nAlienage (with exceptions)\n\nIntermediate Scrutiny\n\n\n\nGender\n\nNon-Marital Children\n\nUndocumented Alien Kids\n\nRational Basis Scrutiny\n\n\n\nAlienage \xe2\x80\x93 Self-Government\n\nCongr. Regulation of Aliens\n\nAge\n\nDisability\n\nWealth\n\nAll Other Classifications\n\nEqual Protection\n\nRace or National Origin: Strict Scrutiny\n\nQuotas Require Clear Proof of Past Discrimination\n\nSchool Admissions: may be factor, but cannot be point-based system\n\nPublic-School Assignment: cannot be factor unless strict scrutiny met\n\nGender: substantially relayed to exceedingly persuasive purpose\n\nGender-Role Stereotypes: even to benefit women, usually unconstitutional\n\nIf designed to remedy past discrimination, likely constitutional\n\nAlienage (non-U.S. citizens): Strict Scrutiny unless:\n\nSelf-Government/Democratic Process: Rational Basis: police officers, voting, jury service, teacher, probation officer.\n\nCongressional Discrimination: Rational Basis, plenary immigration power\n\nUndocumented Alien Kids: Intermediate Scrutiny\n\n*Equal Protection & Fundamental Rights: where action burdens a fundamental right for only a specific group, but the classification would otherwise be rational basis, apply strict scrutiny, but note that it is based on fundamental right, not classifications.  However, this is not the same as substantive due process, which applies where all are deprived of the fundamental right.\n\nFirst Amendment\n\nFree Speech Methodology\n\nContent-Based Laws: Strict Scrutiny\n\nSubject-Matter Restriction\n\nViewpoint Restriction\n\nContent-Neutral Law: Intermediate Scrutiny.  If conduct is regulated, assess Intermediate scrutiny in context of Time, Place & Manner restrictions chart.\n\nPrior Restraint: disfavored, and requires narrowly tailored measure to protect against special societal harm\n\nCourt Orders: Strict Scrutiny, but must comply until overturned\n\nLicensing/Permit Systems: ok if (1) important reason, (2) clear criteria with little discretion, and (3) procedural safeguards\n\nVagueness & Overbreadth\n\nSymbolic Speech: government may regulate conduct if (1) important interest unrelated to speech, and (2) impact no greater than necessary.  Burning flag is protected, but not draft card.\n\nCampaigns: may limit contributions to, but not expenditures\n\nAnonymous Speech: protected\n\nUnprotected & Less-Protected Speech\n\nIncitement of Illegal Activity: if substantial likelihood of imminent illegal activity.\n\nObscenity: material that (1) appeals to prurient interest, (2) is patently offensive under law at issue; and (3) lacks serious redeeming artistic, literary, political, or scientific value.\n\nZoning Ordinances OK to regulate location of adult store\n\nPrivate Possession: cannot be prohibited\n\nAsset Seizure: permitted for all assets of business violating obscenity\n\nProfane/Indecent Speech: protected unless in free media or school\n\nCommercial Speech\n\nFalse/Deceptive Advertising: unprotected\n\nTrue Ads: may be regulated if inherently risks deception\n\nRandom rules: gov\xe2\x80\x99t may prohibit professional advertising/trade names and attorney in-person solicitation for profit, but cannot prohibit same for accountant.\n\nDefamation\n\nPlaintiff\n\nLiability Standard\n\nDamages\n\nBurden of Proof\n\nPublic Official (or running for it)\n\nActual Malice\n\nCompensatory & Punitive\n\nP must prove Falsity & Actual Malice\n\nPublic Figure\n\nActual Malice\n\nCompensatory & Punitive\n\nP must prove Falsity & Actual Malice\n\nPrivate Figure, Public Concern\n\nNegligence & Actual Injury\n\nCompensatory (punitive only if Actual Malice)\n\nP must prove Falsity & Negligence\n\nPrivate Figure, Private Concern\n\nUnclear - Negligence\n\nCompensatory & Punitive\n\nBurden on D to Prove Truth\n\nPrivacy\n\nTruthful Reporting of Lawfully Obtained Information: protected\n\nMedia Broadcast of Illegally-Intercepted Communication: protected if media did not participate and concerns matter of public importance\n\nAccess to Trials: right to access criminal trials, but may be limited by overriding interest articulated in findings by trial judge\n\nGovernment-Employee Speech: no protection for speech on-the-job in performance of duties.\n\n\n\n\n\n\n\n\n\n\n\nPlaces Available for Speech\n\n\xc2\xa0\n\nSubject Matter Neutral?\n\nViewpoint Neutral?\n\nRegulation Allowed?\n\nGov't Interest Required\n\nPublic Forums (sidewalks, parks)\n\nYes\n\nYes\n\nTime, Manner, Place\n\nImportant\n\nLimited Public Forums (non-public forums that government opens to speech\n\n\n\n\n\n\n\n\n\nNon-Public Forums (military bases, courtrooms, airports)\n\nNo, need not be\n\nYes\n\nReasonable regulations\n\nLegitimate\n\nNote: if private forum, consider whether exception to state actor requirement.\n\nFreedom of Association: Fundamental Right, Strict Scrutiny\n\nMembership in Group: punishable only if defendant (1) actively affiliated, (2) knows of its illegal activities, and (3) has specific intent of furthering them.\n\nLaws Requiring Disclosure of Membership: if chills association, strict scrutiny.\n\nProhibiting Group From Discriminating: constitutional, unless interferes with intimate association or expression activity.\n\nFreedom of Religion\n\nFree Exercise Clause: cannot punish/burden religious belief\n\nWhat Constitutes Religious Belief?  Need not recognize supreme being nor be a traditional, major, or recognized religion, so long as belief is genuine/sincere and occupies place in life similar to regular religious belief\n\nRule: permissible if neutral law of general applicability, even if incidental effect.\n\nGovernment may not deny benefits to individuals who quit jobs for religious reasons.\n\nEstablishment Clause: prohibits laws respecting establishment of religion\n\nSect Preference: Strict Scrutiny\n\nNo Sect Preference: law constitutional if (1) secular purpose, (2) effect neither advances nor inhibits religion, and (3) no excessive entanglement.\n\nGovernment cannot pay teachers in parochial schools.\n\nGovernment-sponsored religious activities in schools unconstitutional, even if voluntary.\n\nGovernment may aid parochial schools so long as not used for religious purposes, and may give parents vouchers."


b'Remedies Outline\n\n\n\nTort Remedies\n\nLegal: Damages\n\nCompensatory: to put in position as if no tort\n\nRequirements: (1) actual causation, (2) foreseeability, (3) certainty, and (4) unavoidability.\n\nCertainty: cannot be too speculative.  For past damages, look to any analogous historical evidence (e.g. similar prior business).  For future damages, plaintiff must show they are more likely to happen than not.\n\nEconomic Losses: basic certainty rules apply.\n\nNon-Economic Losses: for pain and suffering, or permanent disfigurement, basic certainty rules do not apply.  Jury can award whatever amount it wishes.\n\nForm of Award: \xe2\x80\x9cThe judgment must be a single, lump-sum payment, discounted to present value without taking inflation into account (but modern view is to take into account).\xe2\x80\x9d\n\nNominal: where no actual injury, to establish rights.\n\nPunitive: to punish defendant for fault greater than negligence, in amount relatively proportionate to actual damages.  Must have first been awarded compensatory, nominal, or restitutionary damages.  Sup. Ct. has limited punitive damages to a single-digit multiple of actual damages, unless conduct is extreme.\n\nRestitutionary Remedies-No Unjust Enrichment\n\nLegal\n\nRestitutionary Damages: value of benefit to defendant.  Sometimes occurs where there is no real injury to plaintiff.  However, often occurs where both compensatory and restitutionary are theoretically available, such as where BaskinRobbins steals Carvel\xe2\x80\x99s ice cream machine, but rule is that plaintiff cannot recover both compensatory and restitutionary, so discuss both, and give plaintiff the larger sum.  Punitive, however, can be paired with restitution.\n\nReplevin: recover possession of specific personal property through sheriff where (1) plaintiff has a right of possession and (2) defendant has wrongfully withheld.  Replevin can occur before trial if plaintiff posts bond, but defendant can defeat pre-trial replevin by posting a re-delivery bond.  Replevin is usually coupled with damages for lost use or benefit to defendant.\n\nEjectment: plaintiff recovers possession through sheriff of specific real property where (1) plaintiff has right to possession and (2) defendant wrongfully withholds.  No ejectment if defendant just crosses plaintiff\xe2\x80\x99s lawn, because no possession.  But if would-be-adverse-possessor or holdover tenant, ejectment available.  Ejectment often coupled with damages.\n\nEquitable: Constructive Trust or Equitable Lien: money damages inadequate because (1) property is unique or (2) defendant is insolvent.\n\nConstructive Trust: imposed on improperly acquired property to which defendant has title.  Defendant serves as \xe2\x80\x9ctrustee\xe2\x80\x9d and must return property to plaintiff.\n\nEquitable Lien: imposed on improperly acquired property to which defendant has title.  Property subject to immediate, court-directed sale, and proceeds go to plaintiff.  If proceeds less than FMV when defendant took, deficiency judgment will issue.  This is a good remedy if the property has gone down in value.\n\nTracing: is permitted.  Plaintiff can seek specific proceeds of sale.  However, when defendant\xe2\x80\x99s property cannot be traced solely to plaintiff\xe2\x80\x99s property, only an equitable lien is available.\n\nStatus: Plaintiff becomes a secured creditor with priority to the specific property or proceeds (but on equal footing for any deficiency judgment).\n\nBFPs of property prevail over plaintiff.  No equitable remedies against BFP.\n\nInjunctive Relief: an order to do or not do something\n\nTRO: issued for 10 days pending preliminary hearing.  Test is identical to preliminary injunction, but may be ex parte provided good faith effort.\n\nPreliminary Injunction: must show (1) irreparable injury while waiting for trial, (2) balance of hardships favors plaintiff, and (3) likelihood of success.  Court should impose bond.  Notice + hearing required.\n\nPermanent Injunction: after full trial on merits: awarded if (1) inadequate legal remedy, (2) enforcement is feasible, (3) balance of hardships favors plaintiff, and (4) no applicable defenses.  This is most likely on the bar exam, and should be discussed first unless clearly stated.\n\nInadequacy of Legal Remedies: Replevin may be inadequate if sheriff cannot locate property or the defendant has filed a redelivery bond.  Ejectment may be inadequate if sheriff refuses to act.  Money damages might be inadequate because too speculative, defendant insolvent, irreparable injury, or avoiding a multiplicity of actions (e.g., prior history of litigation between parties).\n\nFeasibility of Enforcement\n\nNegative Injunction: no enforcement problem.\n\nMandatory Injunction: may be an enforcement problem, based either on the difficulty of supervision or concern with effectively ensuring compliance.  If the act involves great taste, skill, or judgment, injunction is denied.  If is involves a series of acts over a period of time, injunction denied unless plaintiff\xe2\x80\x99s case is otherwise great.  If it involves an out of state act, injunction granted if defendant is resident (jurisdiction), denied otherwise.\n\nBalance of Hardships: balance plaintiff\xe2\x80\x99s benefit against defendant\xe2\x80\x99s hardships.  Injunction will only be denied where there is a gross disparity.  However, no balancing if defendant\xe2\x80\x99s conduct was willful.  Hardship to the public is also taken into account.\n\nDefenses\n\nUnclean Hands: plaintiff committed related improper conduct.\n\nLaches: concerned with prejudicial passage of time, and will never be greater than SOL.  Clock starts to run when plaintiff learns of injury.  Delay cuts off right to relief when unreasonable and prejudicial.\n\nImpossibility\n\nFree Speech: if tort is defamation of privacy publication.\n\nIf Denied: go back and find some other remedy, if appropriate.\n\nMiscellaneous Injunctive Relief Issues\n\nCrime: equity will not enjoin a crime (but check if it is also a tort).\n\nWho Bound: parties, employees and agents of parties acting with notice, others acting in concert with notice.\n\nErroneous Injunction: must still obey until modified or resolved.\n\nContempt: both have fines and or imprisonment.  \n\nCivil: goal is to coerce.  Can get out of jail by agreeing to comply.\n\nCriminal: goal to punish.  Cannot get out of prison until set time is over.\n\nInjunctive relief is often coupled with damages for injuries incurred in the time prior to obtaining the injunction.\n\n\n\nContract Remedies\n\nLegal: Damages: like torts, requires (1) actual causation, (2) foreseeability (at time of contract, (3) certainty, and (4) mitigation.\n\nCompensatory\n\nDirect: flow inherently from the wrong.  Expectation damages.\n\nConsequential: available for related damages foreseeable at time of contract.  Lost reputation can be recoverable if it was communicated to defendant and thus foreseeable.\n\nIncidental\n\nNominal: are allowed.\n\nLiquidated: valid (1) difficult to ascertain at time of contract and (2) reasonable forecast of damages.  If amount excessive, void as penalty.  If valid, only gets liquidated, not actual, damages.  If invalid, plaintiff gets actual damages.  Clause providing either liquidated or actual is invalid, and give plaintiff actual.\n\nNo Punitive Damages, but if willful, check if there is a tort such as fraud.\n\nRestitutionary Remedies \xe2\x80\x93 No Unjust Enrichment: on bar, typically arises where contract fails after plaintiff has rendered performance, partial or complete.\n\nContract is Unenforceable: plaintiff gets value of benefit conferred, even if greater than the unenforceable contract rate.  Plaintiff can also get any property back if unique or defendant is insolvent.\n\nContract is Breached\n\nNon-Breaching Party: gets value of benefit conferred, even if greater than the breached contract rate.  Plaintiff can also get any property back if unique or defendant is insolvent.\n\nBreaching Party: traditional view is no recovery for already-rendered performance, but modern view permits recovery, but cannot be greater than contract rate and is reduced by any damages to non-breaching party.\n\nNote: all other restitutionary tort remedies available if applicable.\n\nEquitable Remedies\n\nSpecific Performance: defendant required to perform the contract.  Requires that (1) contract is valid, certain and definite, (2) plaintiff\xe2\x80\x99s duties have been satisfied; (3) inadequate legal remedy; (4) feasibility of enforcement, and (5) no applicable defenses.\n\nPlaintiff\xe2\x80\x99s Performance\n\nDeficiency Fact Patterns: where seller cannot deliver precise consideration (e.g., 999 and not 1000 acres).  If seller is plaintiff, can specifically enforce if defect is minor, but cannot enforce if major unless can cure by closing.  If buyer is plaintiff, can enforce even if defect is major, but cannot enforce if defect is very major.  If specific performance is ordered, court should abate purchase price to account for deficiency.\n\nTime of the Essence Fact Patterns: where buyer partially performs but not fully by deadline, and thus risks forfeiture of both property and performance, and buyer sues for specific performance.  \xe2\x80\x9cEquity abhors forfeitures.\xe2\x80\x9d  Court will order specific performance if favorable assessment of: loss to seller (small), tardiness (small), waiver (seller has accepted late payments in past, undue hardship (to buyer).  If SP is not granted, courts would typically give restitutionary relief.\n\nInadequate Legal Remedy: money damages might be inadequate because too speculative, defendant insolvent, irreparable injury, or avoiding a multiplicity of actions (e.g., prior history of litigation between parties).  \n\nReal Property: All real property is unique, even if identical to others.  Special Seller\xe2\x80\x99s Rule: seller of land can get specific performance even though all he is getting is money.  \n\nPersonal Property: not unique unless one-of-a-kind, very rare, of personal significance to buyer, or circumstances make chattel unique (e.g. severe gas shortage).  Uniqueness is tested at time of litigation, not at contract formation.\n\nEffect of Liquidated Damages Clause: does not make money damages adequate.  Can still order equitable remedy, unless clause provides that it is to be the only remedy.\n\nFeasibility: personal services contracts are not specifically enforceable, but covenants not to compete are enforceable if (1) services are unique and (2) scope, geographic and duration, is reasonable.\n\nDefenses: unclean hands, laches, unconscionability (at time of formation), or contract defenses of mistake, misrepresentation, or statute of frauds.  On statute of frauds, if oral contract involves land, specific performance can be ordered, but only if plaintiff has rendered valuable part performance in reliance on the contract: any 2 of payment, possession, or improvements.  Modern trend, however, that valuable services alone can constitute valuable part performance.\n\nRescission: original contract is voidable and rescinded.  Must be (1) grounds for rescission (contract formation defenses showing lack of assent) and (2) no valid defenses.\n\nMutual Mistake of Material Fact: rescission granted.  If to collateral fact, rescission is denied.\n\nUnilateral Mistake: rescission denied, unless non-mistaken party knows or should have known of mistake.\n\nMisrepresentation: rescission granted if plaintiff actually relied.\n\nDefenses: laches, unclean hands, but not plaintiff\xe2\x80\x99s negligence.\n\nElection of Remedies: if plaintiff sues for damages first, rescission is not allowed, but if sues for rescission first, damages are allowed.  Plaintiff can sue for both, but must elect one before judgment.\n\nAvailability of Restitution: if previously rendered performance but now entitled to rescission, can get restitution and rescission.\n\nReformation: changes the written agreement to conform to the parties\xe2\x80\x99 original understanding.  Requires (1) a valid contract \xe2\x80\x93 meeting of the minds, (2) grounds for reformation (mutual mistake but not unilateral mistake unless other party knows of mistake), and (3) no defenses.\n\nDefenses: unclean hands or laches, but not plaintiff\xe2\x80\x99s negligence, statute of frauds, or the parol evidence rule.\n\n\n\n\n\nEssay Tips:\n\n\n\nAlways choose a remedy\xe2\x80\x94the best one\xe2\x80\x94but discuss all.\n\nNo duplicative principal remedies.  Discuss election of remedies\n\nAlways look to compensate for damage for all time periods, e.g., loss of use of property while seeking remedies.'