b'\nCOMMUNITY PROPERTY\n\n   1) BASIC PRESUMPTIONS\n        a. California is a community property state.  All property acquired\n           during the marriage is presumed to be CP, while all property\n           acquired before marriage or after permanent separation, or by\n           gift or inheritance is presumed to be SP.  Property acquired in\n           a SP state by either H or W before they became domiciled in CA\n           is quasi-CP.  Upon death or divorce quasi-CP is treated as CP.\n              i. The characterization of an asset as either CP or SP depends\n                 on three factors: (1) the source of the asset, (2) any\n                 actions by the parties that may have altered the character\n                 of the asset, and (3) any statutory presumptions that apply\n                 to the asset.\n             ii. In order to determine the character of any asset, the\n                 courts will trace back to the source of funds used to\n                 acquire the asset.  A mere change in form of an asset does\n                 not change its characterization.  E.g., capital gain from\n                 the sale of SP is SP.\n        b. Absent a showing of the parties agreement or that title was\n           taken in a form that overcomes the community presumption, the\n           burden of proof is on the party claiming SP.\n        c. The economic community ends when (1)  there is permanent\n           physical separation AND (2) intent not to resume marital\n           relation\n\n\n   2) CHARACTERIZE EACH ASSET\n        a. Personal Injury Awards are CP if the cause of action arose\n           during marriage.  If the cause of action arose before marriage\n           or after permanent separation, the award is SP.\n              i. At divorce, CP personal injury awards will be awarded\n                 entirely to the injured spouse\n             ii. Personal injury liabilities are always the SP of the\n                 tortfeasor, unless tort occurred while spouse was acting\n                 for the benefit of the community, then look to SP first,\n                 next CP.\n        b. Retirement Benefits are CP if earned during the course of the\n           marriage.  For retirement pensions and other retirement benefits\n           earned before and during marriage, courts apply the time rule to\n           determine how much of the pension is attributable to CP labor\n           and how much is attributable to SP labor: (present value) x (#\n           years wrkd during marriage / total # years wrkd)\n        c. Disability pay and workers comp benefits are either CP or SP\n           depending on the wages they are designed to replace.  To the\n           extent disability benefits are taken in lieu of retirement\n           benefits, disability benefits are treated as retirement\n           benefits, and thus are CP.  For distribution \xe2\x80\x93 CP until parties\n           separate, thereafter earner\xe2\x80\x99s SP.\n        d. Courts are split on severance pay.  May argue that it\xe2\x80\x99s SP b/c\n           it replaces future wages.  Or CP where it the result of labor\n           performed during the marriage.\n        e. Stock options are a form of employee compensation and are\n           treated as CP or SP depending on when they were earned.  Courts\n           use the time rule to determine the respective CP/SP shares.\n        f. Business and professional good will is CP to the extent it is\n           earned during marriage.\n        g. Education and training are NOT CP.  But, the community may be\n           entitled to reimbursement when CP funds are used to pay\n           education expenses and the education enhanced the spouse\xe2\x80\x99s\n           earning capacity UNLESS the community has substantially\n           benefited from the earnings of the educated spouse (10 years \xe2\x86\x92\n           presumption) OR other spouse also received comm. funded ed.\n        h. Funds borrowed during marriage, and goods purchased on credit\n           during marriage are presumptively CP.  But, look to the primary\n           intent of the lender.  Who or what was the lender primarily\n           looking to for satisfaction of the debt?\n        i. Business owned before marriage, which greatly increased in value\n           after marriage:\n              i. Rule: When community labor is used to enhance the value of\n                 a SP business, the community is entitled to share in the\n                 increased value of the SP [e.g., here, although H\xe2\x80\x99s\n                 business is SP, the CP is entitled to a share of the\n                 appreciation because H\xe2\x80\x99s labor during the course of the\n                 marriage was used to increase the value of the business]\n\n\n        |Pereira accounting is used when the    |Van Camp accounting is used when the   |\n|increase in value is primarily a result|increase in value is primarily the     |\n|of community labor.  Using Pereira, you|result of the unique nature of the SP  |\n|determine the value of the SP at the   |asset.  Using Van Camp, you determine  |\n|beginning of the business and give it  |what a fair salary would be for the    |\n|the fair rate of return over the course|community labor, and multiply that by  |\n|of the marriage (usually 10% simple    |the years of marriage, and subtract any|\n|interest).  The remainder is CP.       |salary already received and any amounts|\n|                                       |paid for community expense.  The result|\n|                                       |is CP.  The rest is SP.                |\n\n\n   3) Altering the Character of Assets\n        a. Parties may opt out of the community property and separate\n           property characterizations by agreement, either as to particular\n           asserts or as to all acquisitions.\n        b. Premarital agreements must be in writing, singed by both\n           parties.\n              i. Unless (1) full performance or (2) estoppel based on\n                 detrimental reliance.\n             ii. Defenses to enforcement:\n                    1. It was not signed voluntarily\n                         a. Bonds case: involuntary mean an 11th hour\n                            ultimatum.\n                         b. 2001 statute: agreement is involuntary unless:\n                               i. Represented by independent counsel when\n                                  signed (or waived representation in a\n                                  separate writing) AND\n                              ii. Given at least 7 days to sign between\n                                  being presented w/ agreement and advised\n                                  to seek legal counsel and the signing &\n                             iii. If not represented by independent counsel,\n                                  was fully informed in writing (in a\n                                  language in which the party was\n                                  proficient) of terms and basic effect.\n                    2. It was unconscionable (question of law for the judge)\n                         a. Generally, unconscionable if no fair,\n                            reasonable and full disclosure of the other\n                            party\xe2\x80\x99s property or financial obligations\n                         b. Waivers of spousal support are unenforceable if\n                            (1) party was not represented by independent\n                            legal counsel at the time of signing OR (2) the\n                            provision is unconscionable at time of\n                            enforcement.\n        c. Transmutations (marital agreements):\n              i. Before 1985, oral transmutations were permitted, whether\n                 express or implied.\n             ii. On or after Jan. 1, 1985: must be (1) in writing, (2)\n                 signed by the spouse whose interest is adversely affected,\n                 AND (3) must expressly state that a change in ownership is\n                 being made.  Exception for gifts of tangible property of a\n                 personal nature.\n\n\n   4) EFFECT OF HOW TITLE IS TAKEN\n        a. Married Woman\xe2\x80\x99s Special Presumption\n              i. Where property is taken in the married woman\xe2\x80\x99s name alone,\n                 prior to 1975, that property is presumed to be her SP.\n                 Based on the fact that prior to 1975 the H was given sole\n                 management and control of the community assets and thus,\n                 any property taken in the W\xe2\x80\x99s name was presumed to have\n                 been a gift to her.\n             ii. The presumption can be rebutted by a showing that (1) H did\n                 not indent to make a gift to W but had some other reason\n                 for taking title in her name [e.g. creditors\xe2\x80\x99 claims] or\n                 (2) W took title in her name w/out H\xe2\x80\x99s knowledge or\n                 consent.\n            iii. Arises only when:\n                    1. Title taken in W\xe2\x80\x99s name alone before 1975 (property\n                       would be W\xe2\x80\x99s SP)\n                    2. Title in name of W and H before 1975, but title is\n                       not taken in joint tenancy form, and not as \xe2\x80\x9cH & W\xe2\x80\x9d\n                       or \xe2\x80\x9cMr. & Mrs.\xe2\x80\x9d (would by \xc2\xbd W\xe2\x80\x99s SP, \xc2\xbd CP)\n                    3. Title in name of W and some third party before 1975\n                       (W would be TIC w/ 3rd P)\n        b. Taking Assets in Joint Title: Lucas and Anti-Lucas Rules\n              i. At death, Lucas applies.  Under Lucas, when a married\n                 couple takes title in joint and equal form, it is\n                 presumptively CP.  Any SP used to acquire the asset is\n                 presumed to be a gift to the community unless agreement to\n                 the contrary.  So no reimbursement.\n             ii. At divorce, under California Family Law, when a married\n                 couple takes title to asset in joint tenancy after 1984,\n                 the asset is presumed to be CP for purposes of divorce.\n                    1. The CP presumption can be rebutted only by:\n                         a. Express statement in the deed that the property\n                            is SP and not CP or\n                         b. Written agreement by the parties that the\n                            property is SP and not CP\n                    2. But, at divorce, spouse who made post 1984\n                       contributions of SP to the acquisitions or\n                       improvements of CP is entitled to reimbursement w/out\n                       interest for contributions to downpayment,\n                       improvements, or principal payments on the mortgage\n                       (DIP) (but not interest on the mortgage, taxes,\n                       insurance, etc.)\n                    3. Plus, a spouse who deeds SP into jointly titled\n                       property is entitled to a right of reimbursement for\n                       the fair market value of the property at the time it\n                       was deeded into joint tenancy.\n        c. Absent joint and equal title, apply the source rule \xe2\x80\x93 two\n           permissible methods:\n              i. Exhaustion: at the time the asset was purchased, community\n                 funds in the account had already been exhausted by the\n                 payment of family expenses, and therefore the asset must\n                 have been purchased with separate funds.\n             ii. Direct tracing: at the time the asset was purchased, there\n                 were separate funds available, and the SP proponent\n                 intended to use SP funds to purchase an SP asset.\n        d. Taking Assets in Separate Title: Can argue that taking title in\n           one spouse\xe2\x80\x99s own name (even where CP used to make the purchase)\n           indicates a gift to that spouse, so that the property is her own\n           SP.  Must argue there was an oral transmutation prior to 1985.\n           Post 85, need a writing.\n\n   5) effect of parties\xe2\x80\x99 actions on characterization of assets\n        a. Pro Rata Rule: The community estate takes a pro rata portion of\n           the property measured by the percentage of principal debt\n           reduction attributable to the expenditure of community funds.\n              i. Formula: CP = principal debt reduction attributable to CP /\n                 purchase price\n             ii. Applies where:\n                    1. An installment purchase is made before marriage, and\n                       subsequent payments are made w/ CP after marriage.\n                    2. During marriage W inherits land subject to mortgage\n                       and pays it off w/ CP\n                    3. H purchases a whole life insurance policy (cash\n                       value) before marriage, and subsequent premiums are\n                       paid w/ CP after marriage.  But, not term life\n                       insurance policy (no cash value, last premium pay.\n                       determines character).\n        b. Reimbursement Rules:\n              i. CP used to improve SP:\n                    1. Where spouse uses CP to improve own SP \xe2\x86\x92 improvements\n                       become part of the SP.  The community can seek\n                       reimbursement for the greater of the cost of\n                       improvements or the enhanced value of the SP\n                       attributable to the CP.\n                    2. Where spouse uses CP to improve the other spouse\xe2\x80\x99s SP\n                       \xe2\x86\x92 split in authority\n                         a. Some courts presume gift.\n                         b. Other courts reject the presumption of gift and\n                            grant reimbursement.\n             ii. SP used to improve CP:\n                    1. In divorce: Community may seek reimbursement w/out\n                       interest for DIP\n                    2. In death: NO reimbursement unless proof of agreement\n                       (Lucas).  SP is deemed a gift and becomes part of the\n                       CP.\n        c. Commingled bank accounts:\n              i. The mere fact that SP funds are commingled with CP funds\n                 does not transform or transmute the SP into CP.  However,\n                 the burden of proof is on H to show that each asset was\n                 acquired w/ separate funds (through tracing or exhaustion).\n             ii. It is presumed that expenditures for family expenses were\n                 made w/ CP funds (to the extent available), even though it\n                 was known that SP funds was also available.  However, b/c\n                 of commingling and inadequate records, where some expenses\n                 may have been paid by SP, it is presumed a gift to the\n                 community (absent contrary agreement).\n\n\n   6) Management & Conveyances of CP\n        a. During the marriage each spouse has equal management and control\n           over all community assets, and thus has full power to buy or\n           sell CP and contract debts w/out the other spouse\xe2\x80\x99s joinder or\n           consent.  Except:\n              i. Spouse managing a business is given primary management and\n                 control.\n             ii. One spouse cannot sell or encumber personal property used\n                 in family dwelling or clothing w/out written consent of the\n                 other spouse.  Trx is voidable at any time.\n            iii. Conveyances of community real property requires joinder by\n                 both spouses.\n                 (If to a BFP, 1 year SoL.  If not to a BFP, no SoL,\n               viodable at any time.)\n        b. Neither spouse can make an inter vivos gift of CP w/out the\n           other spouse\xe2\x80\x99s written consent.\n              i. Non-gifting spouse may take back the gift, and thus restore\n                 the community.\n             ii. But, if non-gifting spouse does not discover the gift until\n                 after the death of the gifting spouse, the non-gifter may\n                 set aside the gift only as to her \xc2\xbd CP, not the entirety.\n                 Recovery will be from either the donee or the gifting-\n                 spouse\xe2\x80\x99s estate.\n            iii. Same rule where one spouse purchases a life insurance\n                 policy and names a 3rd party as beneficiary.  But, federal\n                 preemption prevents recovery of gifts of US savings bonds.\n        c. CP & Creditors:\n              i. Neither spouse can transfer or encumber her \xc2\xbd interest in\n                 CP except one spouse can unilaterally encumber her \xc2\xbd CP\n                 interest to pay a family law atty in divorce action.\n             ii. CP can be reached to pay debts incurred before and during\n                 marriage except earnings of nondebtor spouse cannot be\n                 reached for premarital debts if held in a separate account\n                 and no commingled w/ CP funds.\n            iii. Each spouse has a duty to support the other spouse and\n                 minor children of the marriage, so each spouse is\n                 personally liable for the other spouse\xe2\x80\x99s Ks for\n                 necessities.  Therefore, one spouse\xe2\x80\x99s SP can be reached in\n                 satisfaction of necessary debt of the other (e.g. medical\n                 bills).\n             iv. At divorce, a creditor cannot reach CP awarded to a spouse\n                 unless that spouse (1) incurred the debt or (2) was\n                 assigned the debt by the court.\n\n\n   7) Distribution\n        a. At divorce, all CP will be divided 50-50 unless the court finds\n           that \xe2\x80\x9cthe interest of justice require an unequal division.\xe2\x80\x9d\n              i. Generally, each and every asset must be divided 50-50\n                 unless economic circumstances warrant awarding certain\n                 assets wholly to one spouse (and each spouse ends up with\n                 50% of all CP in terms of total economic value).\n             ii. Exceptions to the general rule: (1) misappropriation by one\n                 spouse, (2) liabilities exceed assets, (3) education debts\n                 assigned to the educated spouse, (4) tort liabilities\n                 assigned to the tortfeasor, (5) family home may be awarded\n                 to the person who is given custody of the minor children.\n                    1. Spouses are subject to fiduciary duties that arise\n                       from their confidential relationship, imposing a duty\n                       of the highest good faith in dealing with each other.\n                        Thus, a crossly negligent and reckless investment of\n                       community funds is a breach of the spouse\xe2\x80\x99s fiduciary\n                       duty.\n        b. At death:\n              i. If the spouse dies w/ a will, she/he is entitled to dispose\n                 of all SP and \xc2\xbd of the CP.\n                    1. Survivor\xe2\x80\x99s Duty to Elect: The surviving spouse must\n                       elect between the will and her CP rights when the\n                       decedent\xe2\x80\x99s will attempts to pass the survivor\xe2\x80\x99s \xc2\xbd\n                       interest in CP.\n             ii. If the spouse dies w/out a will, the CP is awarded entirely\n                 to the surviving spouse.  Between one third an all of the\n                 decedent\xe2\x80\x99s SP will be awarded to the surviving spouse\n                 depending on whether there are issue or parents surviving.\n        c. Quasi-Community Property: property acquired by the couple while\n           living in another jx. which would have been classified as CP had\n           the parties been domiciled in CA\n              i. At divorce quasi-CP is treated exactly like CP.   If the\n                 property is out-of-state, the court will divide all CP and\n                 quasi-CP in such a way that it is not necessary to alter\n                 the nature of the interests held in the out-of-state\n                 realty,\n             ii. At death, the survivor has a \xc2\xbd interest in decedent\xe2\x80\x99s quasi-\n                 CP.  But, non-acquiring spouse who predeceases has no\n                 ownership interest in devise.\n        d. Putative Spouse (one who reasonably believed she was lawfully\n           married).\n              i. Treat quasi-marital property the same as community property\n             ii. But, H who falsely tells W that marriage is valid has no\n                 putative spouse rights.\n\n   8) Preemption\n        a. Under the Supremacy Clause, federal law preempts inconsistent\n           state laws.  In some instances, federal law preempts CA from\n           applying community property concepts to certain assets.\n        b. Applies to: (1) fed. homestead claims, (2) military life\n           insurance benefits, (3) US savings bonds\n        c. Not: (1) R.R. retirement benefits, (2) military retirement\n           benefits, (3) copyrights.\n'


b'\nPROFESSIONAL RESPONSIBILITY\n\nMethod: (1) identify the duty; (2) identify the breach; (3) identify what\nthe lawyer should have done.\n\nI. Duties to the Client\n\n     A. The duty of loyalty: The atty must exercise her professional\n        judgment solely for the benefit of the client, free of compromising\n        influences and loyalties.\n           i. Concurrent Conflicts: An atty must not represent two clients\n              with conflicting interests unless: the atty reasonably\n              believes she can represent everyone effectively despite the\n              conflict AND each client consents in writing after\n              consultation (potential v. actual conflict).\n          ii. Conflicts between lawyer and client:\n                 1. Atty may enter into business with a client only if: (1)\n                    the terms are fair to the client (2) fully disclosed in\n                    understandable writing, (3) opportunity to consult an\n                    outside lawyer;(4) client consents in writing.\n                 2. Loans: CA \xe2\x80\x93 may loan money to your client in all matters\n                    as long as there is a written I.O.U.  ABA \xe2\x80\x93 no financial\n                    assistance for clients unless indigent client.\n                 3. Atty must not solicit a substantial gift from a client.\n\n\n                 4. But, may accept a gift which meets general standards of\n                    fairness.\n         iii. Conflicts due to third party interference:  Atty\xe2\x80\x99s sole duty\n              is to her client, not any 3rd party\n                 1. Atty must not accept compensation from a 3rdP if it\n                    interferes w/ representation.\n                      a. Note: in CA, insured and insurance co. are joint\n                         clients.  Must see that neither party is\n                         disadvantaged by the common representation.  If\n                         conflict, inform the insured and invite him to\n                         retain separate counsel.\n                 2. Corp. as client: lawyer must act to protect the\n                    interests of the corp.\n                 3. SOX: Where in-house counsel discovers a co. officer has\n                    violated securities laws: (1) You must report the matter\n                    to the CEO or chief legal counsel; (2) If they do not\n                    respond, you must go to Board; (3) If reasonably\n                    necessary to prevent fraud or substantial injury to the\n                    org. you may disclose to SEC w/out client consent.\n\n\n     B. Duty of confidentiality: The atty may not reveal anything related\n        to the representation of a client without her consent.  Exceptions:\n        Consent, death/substantial bodily injury, to est. claim or defense\n\n\n     C. Duty of competence: must use the legal knowledge, skill,\n        thoroughness and preparation reasonably necessary for the\n        representation.\n\n\n     D. Duty of diligence.  Must diligently, promptly, and zealously pursue\n        your case to completion.\n\n\n     E. Duty of communication: You must keep your client informed about the\n        case, including settlement offers, and returning phone calls.  Must\n        furnish all information necessary to allow the client to make\n        intelligent decisions in the case.  Client must make the key\n        decisions that affect substantial rights.\n\n\n     F. Duty of financial integrity\n           i. An atty\xe2\x80\x99s fees should not be unreasonable (ABA) /\n              unconscionably high (CA)\n          ii. An atty has a duty not to make fee agreements that could\n              curtail service in the middle of the relationship.  May\n              withdraw for refusal to pay as long as it would not\n              materially harm the client, and L takes reasonable steps to\n              protect client\xe2\x80\x99s interest.\n         iii. Contingent fee agreements are permitted, but the agreement\n              must be in writing, and must not be unconscionably high\n              (remember content requirements: %, expenses, before or after)\n          iv. CA allows referral fees so long as the total fee is not\n              unconscionable and not increased due to the split.  ABA\n              prohibits referral fees.\n           v. Duty to safeguard your client\xe2\x80\x99s property by labeling and\n              storing it in a safe place.\n                 1. Money held for the client must be placed in a client\n                    trust account.\n                 2. Duty to keep good records for your client (5 years in\n                    CA), to render accountings, notify him of money received\n                    on his behalf, and pay promptly money due to him.\n\n     G. Duty to withdrawal from representation if:  (1) the client fires\n        you; (2) continued representation would violate a law or ethical\n        rule (mandatory); (3) you convince the court there is good cause,\n        or if it\xe2\x80\x99s FAIR (permissive).\nII. Duties to the Court & opposing counsel\n\n     A. Duty of Candor\n           i. Duty to present facts and evidence truthfully\n          ii. A lawyer must not knowingly facilitate client perjury.\n         iii. A lawyer must not falsify evidence.\n\n\n     B. Duty to state the law truthfully \xe2\x80\x93 Knowingly making false\n        statements of law to the court is subject to discipline.  You have\n        an obligation to be candid about the law, and a duty to cite\n        adverse authority it it\xe2\x80\x99s from a controlling jx. and directly on\n        point.\n\n\n     C. Duty to uphold the law\n           i. Duty to prevent your client from causing death or serious\n              injury (permissive)\n          ii. No duty to reveal a client\xe2\x80\x99s fraud or crimes causing\n              financial loss (Cal. prohibits this)\n\n\n     D. Duty of fairness to opposing counsel\n           i. Duty to produce evidence \xe2\x80\x93 A lawyer must not unlawfully\n              alter, destroy or conceal evidence.  Plus, it\xe2\x80\x99s a crime to\n              destroy or conceal evidence.\n                 1. Duty not to obstruct access to or tamper with evidence\n                 2. Duty to turn over incriminating evidence to the proper\n                    authorities.\n                 3. Draw a line between physical evidence and confidential\n                    information.\n          ii. Must not lie or mislead your interests\n         iii. Must not communicate w/ a party you know is represented w/out\n              consent of his counsel\n\n\n     E. Duty to preserve the impartiality and decorum of the tribunal\n           i. Must not talk to any prospective or empanelled juror\n          ii. No chicanery \xe2\x80\x93 referring to inadmissible material, alluding\n              to matters unsupported by the evidence, asserting personal\n              knowledge of facts at issue.\n         iii. Refrain from abusive or obstreperous conduct, belligerence,\n              or theatrics.\n          iv. Duty not to file frivolous claims \xe2\x80\x93 cross-over w/ torts \xe2\x80\x93\n              abuse of process, malicious pros.\n\n\n     F. Duty to expedite cases\n           i. CA: must not delay cases to harass an adversary for personal\n              gain/convenience\n          ii. ABA: affirmative duty to expedite cases.\n\n     G. Special Duties of Prosecutors\n\n\nIII. Duty to the Profession\n\n     A. Duty to avoid unauthorized practice of law: Cannot assist non-\n        lawyers in the practice of law \xe2\x80\x93 anything that calls for the\n        professional judgment of a lawyer.\n\n\n     B. Duty to report misconduct\n           i. CA: No duty to report another\xe2\x80\x99s violation, but duty to self-\n              report.  Plus, duty to do something to prevent a fellow firm\n              member\xe2\x80\x99s violation if you know about it.\n          ii. ABA: duty to report another\xe2\x80\x99s violation if it raises a\n              substantial question as to that person\xe2\x80\x99s honesty.\n\n\n     C. Duty to avoid false or misleading advertisements.  The 1st Am\n        allows the gov to regulate commercial speech which is misleading,\n        deceptive or untruthful.\n\n\n     D. Duty to not improperly solicit clients.  An attorney may not seek\n        professional employment for pecuniary gain by initiating a live or\n        telephone contact with a prospective client with whom the lawyer\n        has no prior professional relationship.\n           i. A lawyer may send prospective clients targeted letters if\n              they are facing a specific legal problem, as long as they are\n              truthful and non-deceptive.  If seeking fee, must (1) clearly\n              label \xe2\x80\x9cadvertising material,\xe2\x80\x9d (2) identify a lawyer who is\n              responsible, (3) keep for 2 years\n'


b'\nConstitutional Law \xe2\x80\x93 Opening Paragraphs\n\n   1) Standing\n\nArticle III provides that the federal courts only have jurisdiction where\nthere is an actual case and controversy.  Thus, in order to properly assert\nher claims in federal court, a plaintiff must have standing.  There is\nstanding where the plaintiff alleges (1) an actual or imminent injury, (2)\nwhich was caused by the defendant\xe2\x80\x99s conduct, and (3) which is redressible\nby the court.\n\n\nAn association may sue on behalf of its members if (1) the members would\nhave standing to sue on their own, (2) the interests of the litigation are\ngermane to the organization\xe2\x80\x99s purpose, and (3) the members would not need\nto participate in the suit.\n\nA taxpayer has standing if (1) the law he seeks to challenge was enacted\nunder Congress\xe2\x80\x99s taxing and spending power, and (2) he alleges that\nCongress has exceeded some specific limitation on that power.\n\n   2) Ripeness\n\nFor proper federal jurisdiction, the claim must be ripe for review.  A\nclaim is ripe where the plaintiff would suffer harm if review were denied.\n\n   3) Mootness\n\nFor proper federal jurisdiction, there must be an actual controversy at\nevery stage of the litigation.  Thus if events after the filing of the\nlawsuit end the plaintiff\xe2\x80\x99s injury, the claim should be dismissed as moot.\nHowever, there is an exception to the mootness doctrine where the wrong is\ncapable of repetition yet evading review, or where the defendant has\nvoluntarily ceased the conduct which caused the plaintiff\xe2\x80\x99s harm.\n\n   4) SSI\n\nThe 11th Amendment prohibits private individuals from bringing suits in\nfederal courts against state government.  However, a state may waive its\nsovereign immunity.  Also, the 11th Amendment does not bar suits against\nstate officers for injunctive relief.  Moreover, Congress may abrogate SSI\nunder sec. 5 of the 14th Amendment when it is acting to remedy / prevent an\nalready recognized constitutional violation, and when the law is\nproportional and congruent to the constitutional violation.\n\n   5) Dormant Commerce Clause\n\nThe Commerce Clause gives Congress plenary power to regulate interstate\ncommerce.  However, where Congress is silent on an issue, the states are\nfree to regulate local transactions affecting interstate commerce.  But,\nstate regulations which unduly burden interstate commerce are\nunconstitutional.\n\nWhere a state regulation discriminates against out-of-staters, there is a\npresumption that the regulation unduly burdens interstate commerce.  Thus,\nthe state must show that the regulation is necessary to serve an important\ngovernment interest, and that there are no less restrictive means\navailable.  However, there is an exception when Congress has approved the\nregulation or where the state is acting as a market-participant.\n\nWhere the state regulation is non-discriminatory, the Court will balance\nthe state\xe2\x80\x99s interest in maintaining the regulation against the burden on\ninterstate commerce.\n\n   6) Privileges and Immunities Clause\n\nThe Privileges and Immunities Clause of the 4th Amendment prohibit a state\nfrom denying non-citizens the privileges and immunities afforded to its own\ncitizens.  Thus a state or local law which discriminates against out-of-\nstaters with regards to civil liberties or an individual\xe2\x80\x99s ability to earn\na living will be struck down as unconstitutional unless the state\ndemonstrates that the law is necessary to serve an important government\npurpose.  But, the P&I clause does not apply to corporations or aliens.\n\n\n\n   7) State Action\n\nThe 14th Amendment only applies where there is action by the state or local\ngovernment, or by an individual who is performing a function which is\ntraditionally performed exclusively by the state.\n\n   8) Equal Protection\n\nThe Equal Protection Clause of the 14th Amendment prohibits state\ngovernments from denying any person within its jurisdiction the equal\nprotection of the laws.  While the 14th Amendment applies exclusively to\nstate governments, grossly unreasonably discrimination by the federal\ngovernment is prohibited by the Due Process Clause of the 5th Amendment.\nUnder either provision, the analysis is the same.\n\nTo successfully assert an equal protection claim, the plaintiff must first\nshow that she is a member of a class of persons who is being treated\ndifferently from others.  The discrimination may appear on the face of the\nlaw, or where the law is facially neutral, the plaintiff must show that\nthere is both a discriminatory intent for the law and a discriminatory\nimpact for the law.\n\nWhere there is a classification, the level of scrutiny to be applied\ndepends on classification at issue or the right being limited.\n\nClassifications based on race, national origin, or alienage generally must\nmeet strict scrutiny \xe2\x80\x93 necessary to achieve a compelling government\npurpose.  So must regulations which implicate a fundament right \xe2\x80\x93 travel,\nvoting or Free Speech.\n\nClassifications based on gender or illegitimacy must meet intermediate\nscrutiny \xe2\x80\x93 substantially related to an important government purpose.\n\nWhere the law does not affect a suspect class nor implicate a fundamental\nright, the law need only meet rational basis review.  That is the\nchallenger must demonstrate that the law is not rationally related to a\nlegitimate government interest.  E.g. Age, disability, wealth and other\nclassifications.\n\n   9) Procedural Due Process\n\nThe Due Process Clause of the 14th Amendment requires that a state provide\nits citizens fair process and procedures before the government may deprive\none of life, liberty or property interest.  Procedural due-process invokes\na two-step inquiry.\n\nFirst, there must be a deprivation of life, liberty, or property.  There is\na liberty deprivation when the state takes away a significant freedom\nsecured by the Constitution or statute.  There is a property deprivation\nwhen the state takes away an entitlement to the continued receipt of a\nbenefit.  Note also that the deprivation must be intentional or at least\nreckless.  A deprivation that results from negligence is an insufficient\nbases for a procedural DP violation.\n\nIf there is a deprivation, the next step is to consider what process is\ndue.  Here, the court will balance (1) the importance of the interest to\nthe individual, (2) the ability of additional procedures to increase the\naccuracy of the fact-finding process, and (3) the government\xe2\x80\x99s interest in\nfiscal and administrative efficiency.\n\nThe final step is to consider whether the government has provided the\nappropriate process.\n\n  10)   Substantive Due Process\n\nWhere the law limits the ability of all persons to engage in an activity,\nsubstantive due process may apply.  The Due Process Clause of the 5th\nAmendment applies to the federal government, which the due process clause\nof the 14th Amendment applies to the states.  The inquiry is whether the\ngovernment has an adequate reason to take away a persons life, liberty or\nproperty interest.\n\nHere, the analysis depends on the right being impaired.  Where the law\nlimits a fundamental right, such as the right to vote, travel, privacy or\nfreedom of speech, strict scrutiny applies.  In all other cases, the\nrational basis test applies.\n\n\n  11)   Free Speech\n\nA law which seeks to regulate speech is presumptively unconstitutional.  To\njustify content-based regulation of speech, the government must show that\nthe ordinance is necessary to serve a compelling state interests and it is\nnarrowly drawn to achieve that end. [Discuss whether the regulation is\ncontent-based]\n\nContent-neutral regulations on speech are subject to intermediate scrutiny,\nand will be upheld if the government can show that (1) they advance an\nimportance interest unrelated to the suppression of speech, and (2) they do\nnot burden substantially more speech than necessary to further those\ninterests.\n\n        a. Time, Place and Manner Restrictions\n\nTo be valid, government regulation on speech in public forums must be (1)\ncontent neutral, (2) narrowly tailored to serve a significant government\ninterest, and (3) leave open alternative channels of communication.\n\nRegulations on speech in designated public forums \xe2\x80\x93 places where the\ngovernment could close speech, but chooses to open \xe2\x80\x93 must meet the same\nstandard as applies to public forums.\n\nRegulations on speech in private forums must (1) be viewpoint neutral and\n(2) reasonably related to a legitimate government interest.\n\n        b. Prior Restraints\n\nPrior restraints on speech must meet strict scrutiny.  The restraint must\nbe necessary to serve a compelling government interest.\n\n        c. Vagueness & Overbreadth\n\nA law is unconstitutionally vague if a reasonable person cannot tell what\nspeech is prohibited and what is allowed.  A law is unconstitutionally\noverbroad if it regulates substantially more speech than the constitution\nallows.\n\n        d. Symbolic Speech\n\nThe government can regulate conduct that communicates if it has an\nimportant interest unrelated to suppression of the message and if the\nimpact on communication is no greater than necessary to achieve the\ngovernment\xe2\x80\x99s purpose.\n\n        e. Commercial Speech\n\nCommercial speech which inherently risks deception is not protected by the\nFirst Amendment, so the government may regulate such speech as it pleases.\nRegulations on commercial speech which is not inherently deceptive must\nmeet intermediate scrutiny.\n\n        f. Obscenity\n\nObscene speech is not protected by the First Amendment.  Speech is obscene\nif (1) it appeals to the prurient interest, (2) the material is patently\noffensive under the law prohibiting obscenity, and (3) taken as a whole,\nthe material must lack serious redeeming artistic, literary, political or\nscientific value.\n\n  12)   Freedom of Association\n\nLaws that prohibit or punish group membership must meet strict scrutiny.\nTo punish group membership, the government must prove that the person (1)\nactively affiliated with the group, (2) knowing of its illegal activities,\n(3) with the specific intent of furthering those illegal activities.\n\n  13)   The Free Exercise Clause\n\nThe Free Exercise Clause prohibits the state from imposing restrictions on\nsomeone on the basis of the person\xe2\x80\x99s religious beliefs.  The state may\nimpose a restriction if it necessary to achieve a compelling state\ninterest.  However, the Free Exercise Clause cannot be used to challenge a\nneutral law of general applicability\n  14)   The Establishment Clause\n\nThe Establishment Clause prohibits laws respecting the establishment of\nreligion.  If government regulation or activity gives preference to one\nreligious sect over another, it is invalid unless it is narrowly tailored\nto serve a compelling state interest.\n\nIf a government regulation or action contains no sect preference, it is\nvalid under the Establishment Clause if (1) it has a secular purpose, (2)\nit neither advances nor inhibits religion, and (3) it does produce\nexcessive governmental entanglement with religion.\n\n  15)   Taking\n\nThe government may take property, though the power of eminent domain, but\nonly if (1) it does so for the public use, and (2) it provides just\ncompensation to the owner.  Physical takings must meet this test, as must\nuse restrictions which deprive the owner of all economic value.\n\n  16)   Contracts\n\nThe Contracts Clause prohibits state or local interference with existing\ncontracts.  Interference with government contracts must meet strict\nscrutiny.  Interference with private contracts must meet intermediate\nscrutiny.\n\n  17)   State Taxation\n\nWhere state taxation laws conflict with federal laws, the state laws are\npreempted by the Supremacy Clause.  Discriminatory taxes are invalid under\nthe Commerce Clause.  Where a state tax law is not preempted and is not\ndiscriminatory, it will be upheld if (1) there is a substantial nexus\nbetween the activity and the state, and (2) state tax on interstate\nbusinesses must be fairly apportioned.\n\n  18)   Access to Courts\n\nA state must waive court filing fees imposed on indigents when the\nimposition of a fee would deny a fundament right to the indigent.  The\ninability to pay a fee cannot be the sole basis upon which a person is\ndeprived of a fundamental constitutional right.  (Raises equal protection\nissue \xe2\x80\x93 discrimination based on wealth; but note, access to courts is not a\nfundamental right).\n\n\n'


b'\nWILLS\n\n   1) Intent\n        a. Capacity\n              i. At the time of execution, testator must: (1) be at least 18\n                 years of age; (2) be able to understand the extent of her\n                 property; (3) know the natural objects of her bounty\n                 (spouse, issue, parents, etc.); (4) now the nature of her\n                 act (that she is executing a will)\n             ii. Consequences: The entire will is invalid.  Property will\n                 pass by intestate succession.\n                       Exception: If testator had a valid prior will that\n                       was purportedly revoked by the invalid will, then\n                       will #1 is probated b/c T did not have capacity to\n                       revoke.\n        b. Insane Delusion\n              i. Elements: (1) T had a false belief; (2) that false belief\n                 was a product of a sick mind; (3) there is no evidence to\n                 support the belief; (4) delusion must have affected T\xe2\x80\x99s\n                 will\n             ii. Consequence: Only the part of the will which was affected\n                 by the delusion is invalid.  As to that part, it will go to\n                 the residuary devisee, or if none, or if the residue itself\n                 was infected by the delusion, but intestate succession.\n        c. Fraud\n              i. Elements: (1) representation, (2) of a material fact, (3)\n                 known to be false by the wrongdoer, (4) for the purpose of\n                 inducing action/inaction, and (5) does induce\n                 action/inaction.\n             ii. Fraud in the execution: someone forges T\xe2\x80\x99s signature OR T\n                 signs will thinking it is something else.\n                    Consequences: the entire will is invalid.  The property\n                    passes by intestate succession unless there is a prior\n                    will that was validly executed.\n            iii. Fraud in inducement: the wrongdoer\xe2\x80\x99s representation affect\n                 the contents of T\xe2\x80\x99s will.\n                    Consequences: Only that part of the will that is\n                    affected by the fraud is invalid.  As to that part, the\n                    court has three options:\n                         a. Give the property to the residuary devisees, if\n                            any; or\n                         b. If there is no residue, to the heirs at law by\n                            intestate succession; OR\n                         c. Make the heirs or devisees a constructive\n                            trustee.\n             iv. Fraud in preventing testator from revoking\n                    Consequences: The court will not probate the will, and\n                    thus the property goes to the heirs.  Court will also\n                    declare the heir a constructive trustee, who has a duty\n                    to transfer the property to the intended beneficiary.\n        d. Undue Influence \xe2\x80\x93 established in three ways \xe2\x80\x93 discuss all three\n              i. Prima Facie Case: (1) T has a weakness such that he is\n                 susceptible, (2) the wrongdoer has access to the T, (3) it\n                 is the wrongful act that gets the gift, (4) an unnatural\n                 result.\n                    Consequences: Only that part of the will affected by\n                    undue influence is invalid.  That part goes to (i) the\n                    residuary devisee if any, (ii) the heirs at law by\n                    intestate succession, or (3) via constructive trust.\n             ii. Presumption: (1) A confidential relationship exits between\n                 the T and the wrongdoer, (2) the wrongful act gets the\n                 gift, (3) an unnatural result.\n                    Consequences: same as prima facie case.\n            iii. Statutory Undue Influence:\n                    1. California generally invalidates a donative transfer\n                       from T to:\n                         a. A person who drafted the instrument\n                         b. A person who is related to, married to, or\n                            cohabitates w/, or is an employee of the\n                            drafter\n                         c. A person who is in a fiduciary relationship\n                            with the T and who transcribes the testamentary\n                            instrument.\n                    2. These rules do not apply if:\n                         a. The T is related to, married to or co-habitats\n                            w/ the drafter\n                         b. If the instrument is reviewed by an independent\n                            atty who counsels T\n                    3. Consequences: The devisee does not take the gift, but\n                       only to the extent the gift exceeds that person\xe2\x80\x99s\n                       intestate share.  As to the portion that does not\n                       pass to the wrongdoer, it passes to the residuary\n                       devisee/by intestate succession/via constructive\n                       trust.\n\n\n   2) Mistake\n        a. Mistake in content: the wrong beneficiary is named or the wrong\n           gift is made\n              i. If words are accidentally left out \xe2\x80\x93 no relief is given,\n                 courts do not re-write wills (but DRR may be an option)\n             ii. If words are accidentally added \xe2\x80\x93 remedy may be given \xe2\x80\x93 ct\n                 may strike out extra words\n        b. Mistake in execution: the T signs the wrong document\n              i. If T sings the will believing it is a non0testemnetary\n                 instrument \xe2\x80\x93 the will is not probated b/c T did not intend\n                 the document to be a will.\n             ii. It H & W have reciprocal wills and each mistakenly signs\n                 the wrong one \xe2\x80\x93 court may reform the will and substitute\n                 the correct names.  Reasoning: it is equitable.\n        c. Mistake in inducement: a particular gift is made/not made on the\n           basis of T\xe2\x80\x99s erroneous belief\n              i. No relief is given.\n             ii. Except \xe2\x80\x93 one narrow circumstance \xe2\x80\x93 when both the mistake\n                 and what T would have done but for the mistake appear on\n                 the face of the will \xe2\x80\x93 then court will give relief.\n        d. Mistake in description (ambiguity): No one or nothing fits the\n           description OR two or more persons or things fit the\n           description.\n              i. Court will allow introduction of parol evidence for any\n                 type of ambiguity \xe2\x80\x93 latent or patent \xe2\x80\x93 to determine what\n                 the T\xe2\x80\x99s intent was.\n        e. Dependent Relative Revocation (DRR): allows the court to ignore\n           a revocation of Will #1 on the grounds that T revoked Will #1\n           b/c T mistakenly believed Will #2 effectuated his intent.\n              i. Rule: (1) if T revokes her will, or a portion thereof, (2)\n                 in the mistaken belief that a substantially identical will\n                 or codicil effectuates her intent, (3) then, by operation\n                 or law, (4) the revocation of the first will be deemed\n                 condition, dependent, and relative to the second\n                 effectuating the T\xe2\x80\x99s intent.  (5) If the second does not\n                 effectuate T\xe2\x80\x99s intent, the first (by pure legal fiction)\n                 was never revoked.\n             ii. Applies where: will #1 revoked by subsequent instrument or\n                 by physical act (atty who drafted will can testify as to\n                 the terms of the will).\n        f. Mistake involving living children (pretermission): accidental\n           omission of a child from a will\n              i. Rule: a child is pretermitted if born or adopted after all\n                 testamentary instruments are executed and not provided for\n                 in any testamentary instrument.\n                    1. A pretermitted child takes an intestate share of the\n                       estate (which includes assets in testator\xe2\x80\x99s inter-\n                       vivos trust).\n                    2. If after the child is born there is subsequent\n                       republication of the will by codicil, the omitted\n                       child may NOT take b/c (i) the codicil republished\n                       the will, and in the alternative (ii) the codicil\n                       itself is a testamentary instrument, thus the birth\n                       took place before the codicil was executed.\n             ii. A child born or adopted before all testamentary instruments\n                 are executed and not provided for in any instrument is not\n                 pretermitted.  Child takes nothing.\n                    1. Exception: a child born or adopted before all\n                       testamentary instruments are executed and not\n                       provided for in any instrument is treated as if\n                       pretermitted if the only reason the child was not\n                       provided for is b/c T erroneously believed the child\n                       to be dead or non-existent.\n   3) Components of the will\n        a. Integration: refers to which papers make up the will \xe2\x80\x93 two\n           elements required\n              i. Intent: T must have intended for the papers in question to\n                 be part of the will;\n             ii. Presence: The paper must have been actually/physically\n                 present at time of execution.\n        b. Incorporation by reference: allows a non-integrated writing to\n           become part of the will \xe2\x80\x93 if:\n              i. The document or writing must have been in existence when\n                 the will was executed\n             ii. The document must be clearly identified in the will\n            iii. T must have intended to incorporate the doc into the will\n                 (usually implied, if 1-3 met)\n        c. Facts of independent significance: who a beneficiary is, or what\n           gift is given, may be given meaning by facts of significance\n           independent from T\xe2\x80\x99s will.  Allows the court to fill in the\n           blanks in T\xe2\x80\x99s will with parol evidence that is trustworthy.\n        d. Pour-over wills: where part or all of T\xe2\x80\x99s estate is devised to\n           the trustee of an inter-vivos trust that trust instrument may be\n           admitted into probate \xe2\x80\x93 and the pour over provisions effectuated\n           \xe2\x80\x93 via (1) incorporation by reference or (2) independent\n           significance or (3) Uniform Testamentary Additions to Trusts Act\n           \xe2\x80\x93 as long as you have a valid trust, which was executed before\n           or concurrently w/ the execution of the T\xe2\x80\x99s will, the pour-over\n           provision is valid by statute.\n   4) Requirements for Execution of Attested Wills\n        a. Elements:\n              i. The will must be in writing\n             ii. The will must be signed by the T, a person appointed by T\n                 if T is incapacitated, or a conservator appointed by the\n                 court.\n            iii. Signing must be done in the presence of 2 witnesses (or by\n                 acknowledging signature)\n             iv. The witness must sign the will & understand that the\n                 instrument they sign is T\xe2\x80\x99s will.\n                    1. Witnesses do not have to sign in the presence of T\n                    2. T does not have to declare to witnesses \xe2\x80\x9cthis is my\n                       will\xe2\x80\x9d\n                    3. There is no order of signing\n                    4. Signing anywhere on the will is okay\n                    5. Split in Cal. re whether witness may sign after T\n                       dies.  Recently the Cal. Supreme Court held that the\n                       W must sign during T\xe2\x80\x99s lifetime.\n        b. Interested Witnesses: those who are beneficiaries under the\n           will.\n              i. Not automatically invalid.  But, unless there are two other\n                 disinterested W\xe2\x80\x99s, a presumption arises that the W-\n                 beneficiary secured the gift by wrong-doing.\n                    1. If W-beneficiary rebuts the presumption of wrongdoing\n                       \xe2\x80\x93 she still takes the gift\n                    2. If W-beneficiary fails to rebut, she takes the amount\n                       as does not exceed what would be given in intestacy.\n        c. Conditional Will: one whose validity is made conditional by its\n           own terms\n              i. The will is to be probated only if the condition is\n                 satisfied.\n   5) Requirement for Execution of Holographic Wills\n        a. Elements:\n              i. Must be signed by the testator (anywhere on the will)\n             ii. The material provisions (gifts made and beneficiaries\xe2\x80\x99\n                 names) must be in the T\xe2\x80\x99s own handwriting.\n        b. Extrinsic evidence IS admissible to determine T\xe2\x80\x99s testamentary\n           intent.\n        c. A series of letters can constitute a will under integration.\n        d. A date is not required but lack of a date can create problems:\n              i. If an undated holograph will is inconsistent w/ the\n                 provisions of another will, the undated holograph is\n                 invalid to the extent of inconsistency \xe2\x80\x93 unless the undated\n                 holograph\xe2\x80\x99s date is established to be after the date of\n                 execution of the other will.\n                    1. If two undated holographs \xe2\x80\x93 and unable to establish\n                       dates \xe2\x80\x93 neither is probated to the extent of the\n                       inconsistency.\n             ii. If a holograph is undated, and it is established that the T\n                 lacked capacity at any time during which the will might\n                 have been executed, the holograph is invalid \xe2\x80\x93 unless it is\n                 established that it was executed at a time when the T had\n                 capacity.\n   6) Choice of Law \xe2\x80\x93 a will can be admitted to probate in Cal. if any of\n      the following 3 rules is satisfied\n        a. The will complies w/ California\xe2\x80\x99s formalities of execution\n        b. The will complies w/ the formalities of the place where the will\n           was executed.\n        c. The will complies w/ the formalities of the place where T was\n           domiciled at the time of execution.\n   7) Codicils\n        a. Defined: a testamentary instrument executed in compliance w/ the\n           California probate code which modifies, amends or revokes a\n           will.\n        b. A codicil republishes a will, so that the will speaks from the\n           date the codicil is executed.\n        c. Revocation of codicils:\n              i. If T executes a will, then executes a codicil, and\n                 subsequently revokes the will, there is a rebuttable\n                 presumption that T intended to revoke only his codicil.\n             ii. But, if T executes a will, then executes a codicil, and\n                 subsequently revokes the will, there is a rebuttable\n                 presumption that T intended to revoke the will AND codicil.\n   8) Revocation\n        a. By Physical Act:\n              i. Elements:\n                    1. Will must be burned, torn, cancelled, destroyed or\n                       obliterated\n                    2. T must have the simultaneous intent to revoke (act\n                       and intent must coincide)\n                    3. The act must be done by the T, or by someone in the\n                       T\xe2\x80\x99s presence and at his direction.\n             ii. Cancellations and interlineations generally cancels the\n                 changed provisions if the material provisions are not in\n                 T\xe2\x80\x99s own handwriting.  But a cancellation or interlining may\n                 be saved by DRR (as long as the new gift is greater than\n                 the cancelled gift \xe2\x80\x93 can\xe2\x80\x99t use DRR to save a\n                 interlineations that reduces a gift or increases a co-\n                 beneficiaries gift).\n            iii. Duplicate Wills: If T, or someone in T\xe2\x80\x99s presence and at\n                 his direction, revokes by physical act on of the duplicate\n                 originals, then the other duplicate original is also\n                 revoked as a matter or law.\n             iv. Mutilated Wills: If a will is found in a mutilated\n                 condition at T\xe2\x80\x99s death, and when last seen it was in T\xe2\x80\x99s\n                 possession \xe2\x86\x92 rebuttable presumption that T intended to\n                 revoke it.\n        b. By Subsequent Written Instrument:\n              i. Can be express (statement in will #2) or implied (will #2\n                 totally disposes of T\xe2\x80\x99s estate)\n             ii. Revival: not automatic, but may occur if T manifests an\n                 intent to revive Will #1 (oral statements where Will #2 is\n                 revoked by physical act OR terms of the codicil indicate\n                 that T wanted Will #1 revived where Will #2 is revoked by\n                 subsequent instrument).\n        c. By Operation of Law\n              i. Omitted Child: A will executed prior to the birth or\n                 adoption of a child which omits that child is revoked as to\n                 that child.\n                    1. Unless: (1) D\xe2\x80\x99s failure to provide for the child was\n                       intentional, and that intention appears from the\n                       testamentary instrument; (2) D evidenced a plan that\n                       child\xe2\x80\x99s other parent would take financial care of all\n                       children that they have together; (3) D provided for\n                       the child outside the testamentary instrument w/\n                       intent that the transfer is in lieu of any\n                       testamentary provision.\n                    2. Omitted child receives an instate share of assets\n                       decedent owned at death plus any assets held in an\n                       intervivos trust.  Other gifts are abated or reduced.\n             ii. Omitted spouse: a will executed prior to marriage, and\n                 which omits the surviving spouse is revoked as to that\n                 spouse:\n                    1. Unless: (1) failure to provide was intentional, and\n                       intent appears on the instrument; (2) D provided for\n                       the spouse by some other transfer, (3) omitted spouse\n                       signed a valid waiver of her right to share in T\xe2\x80\x99s\n                       estate.\n                    2. Omitted spouse received a statutory share of assets\n                       decedent owned at death plus any assets held in any\n                       intervivos trust.  Statutory share includes:\n                         a. \xc2\xbd of the CP and \xc2\xbd of the quasi-CP  (thus the\n                            spouse ends up with 100% of the CP and quasi-\n                            CP)\n                         b. A share of the SP equal to that what she would\n                            have received if the decedent had died w/out a\n                            will, but never more than \xc2\xbd the SP estate.\n            iii. Omitted domestic partner: same as omitted spouse\n             iv. Final dissolution of marriage or domestic partnership:\n                 Disposition of property to a former spouse in a will\n                 executed before divorce/annulment is revoked by dissolution\n                 unless the will provides otherwise.\n        d. By Change in Property Holdings (Ademption)\n              i. Where T has devised specifically described property and\n                 that item is not owned by T at death, the specific gift is\n                 deemed revoked and beneficiary takes nothing unless there\n                 is evidence that T intended the beneficiary to take a\n                 substitute gift.  There is a constructional preference for\n                 viewing such gifts as general gifts (which aren\xe2\x80\x99t adeemed).\n             ii. Stock problems:\n                    1. If stock was never owned, then executor buys it\n                    2. If stock was owned and language is specific (\xe2\x80\x9cmy 100\n                       shares of stick\xe2\x80\x9d) then gift is specific \xe2\x86\x92 ademption\n                       arises.\n                    3. If stock splits after execution of will then gift is\n                       specific and beneficiary talks all\n                    4. Stock dividends are treated the same as stock shares.\n            iii. Court may use acts of independent significance to fill in\n                 blanks in T\xe2\x80\x99s will.\n             iv. Even were T no longer owns property, devisee has right to\n                 receive unpaid insurance benefit in property, condemnation\n                 award for taking of property, net sale price where property\n                 is sold by conservator, foreclosure proceeds.\n        e. By satisfaction: an inter-vivos gift to the beneficiary is\n           deducted from the devise, where the T expressed in a written\n           document that she intended the gift to be in satisfaction of the\n           devise.\n        f. By advancement: an inter-vivos gift to an heir apparent is\n           deducted from the donee\xe2\x80\x99s intestate share if the donee\xe2\x80\x99s intent\n           is expressed in a written document executed by donor and donee.\n   9) Contracts re wills: T can contract to make, not to make, to revoke or\n      not revoke a will \xe2\x80\x93 testamentary formalities are not required \xe2\x80\x93\n      contract law controls not probate law.\n        a. K must be established by:\n              i. Provisions in will stating material terms of K;\n             ii. An express reference in the will to the K & extrinsic\n                 evidence\n            iii. A writing signed by T evidencing the K\n             iv. Clear and convincing evidence of an agreement or promise\n                 between the D and another person for claimant\xe2\x80\x99s benefit.\n        b. Requirements & Rules\n              i. K must be in writing\n             ii. K is always revocable\n            iii. Oral K enforceable if part performance.\n        c. Joint & Mutual Wills\n              i. Joint Wills: wills of 2 or more persons executed on the\n                 same piece of paper and intended to be the will of each.\n             ii. Mutual Wills: separate wills by 2 or more persons\n                 containing provisions for reciprocal benefits.\n            iii. CA holds, that the execution of a joint or mutual will does\n                 not create a presumption of a K not to revoke the will.\n  10) Intestate Succession\n        a. Surviving Spouse/Domestic Partner\n              i. Community Property: Surviving spouse inherits the\n                 decedent\xe2\x80\x99s \xc2\xbd of the CP and \xc2\xbd of the quasi-CP (so surviving\n                 spouse ends up w/ 100% of CP & quasi-CP).\n             ii. Separate Property:\n                    1. If D leaves not issue, parents, siblings, etc., \xe2\x86\x92 all\n                       to surviving spouse\n                    2. If D is survived by one child, or issue of a\n                       predeceased child \xe2\x86\x92 \xc2\xbd to surviving souse and \xc2\xbd to\n                       child or child\xe2\x80\x99s issue.\n                    3. If D is survived by 2 or more children, or issue of\n                       predeceased children \xe2\x86\x92 \xe2\x85\x93 to surviving spouse and \xe2\x85\x94 to\n                       the children or their issue.\n                    4. If D is survived by parents or parent\xe2\x80\x99s issue\n                       (siblings) \xe2\x86\x92 \xc2\xbd to surviving spouse, \xc2\xbd to parent or\n                       their issue\n        b. If spouse does not survive (or the remaining share not passing\n           to spouse) passes as follows:\n              i. To issue;\n             ii. To parents\n            iii. To issue of parents (decedent\xe2\x80\x99s siblings);\n             iv. To grandparents or issue of grandparents (decedent\xe2\x80\x99s aunts\n                 and uncles);\n              v. To issue of predeceased spouse (step-children)\n             vi. To next of kin\n            vii. To parents of predeceased spouse (in-laws) or issue of\n                 parents of predeceased spouse (siblings-in-law)\n           viii. Escheats to the state.\n        c. General Principles\n              i. Issue of the same degree take \xe2\x80\x9cper capita,\xe2\x80\x9d or equally and\n                 in their own right\n             ii. Issue or more remote degrees take \xe2\x80\x9cper capita with\n                 representation.\xe2\x80\x9d\n            iii. \xc2\xa7 240 of the Probate Code distribution: at the 1st level,\n                 give shares to all living persons; at the 2nd level, gives\n                 shares to all living persons and deceased members of that\n                 generation who leave issue.\n             iv. Per Stirpes distribution: make the distribution at the\n                 first generation or first level, even if everyone is dead,\n                 so long as they life issue.  The issue then steps into the\n                 shoes of their predeceased ancestor.\n        d. Children:\n              i. Adopted children always treated as natural child of the\n                 adopting parent.\n             ii. Stepchildren or foster children are treated as adopted\n                 children if it is established that the parent would have\n                 adopted but for a legal barrier.\n            iii. Non-marital children may inherit from mother when there is\n                 a parent-child relationship be mother giving birth, and\n                 from father only if father acknowledges child, marriage to\n                 mother, or by court decree of paternity.\n\n\n  11) Distribution of the Estate\n        a. Lapse:\n              i. Rule of lapse: if the beneficiary does not survive T,\n                 beneficiaries\xe2\x80\x99 gift lapses, or fails, unless T expresses a\n                 contrary intent in the will. Passes by residual; if none by\n                 intestacy.\n                    1. If the devise is a class gifts, only surviving class\n                       members take because the will speaks at the time of\n                       the T\xe2\x80\x99s death.  Deceased class members share will be\n                       deemed to have lapsed.\n             ii. California\xe2\x80\x99s Anti-Lapse Statute: A deceased legatee who is\n                 a blood relative of the T or the T\xe2\x80\x99s spouse takes by\n                 representation.   Issue of a predeceased devisee may step\n                 into the shoes of the devisee, unless will provides\n                 otherwise.\n        b. Simultaneous Death: When two people die at the same time, and\n           time of death cannot be established, property of each decedent\n           is treated as if he predeceased the other.\n              i. Beneficiary who does not survive T by 120 hours is treated\n                 as if he predeceased T.\n        c. After-acquired property: will passes all property the T owed at\n           death, including after-acquired property.  So residuary gets all\n           after acquired property.\n        d. Increase during T\xe2\x80\x99s lifetime: Stock dividends or splits paid\n           during T\xe2\x80\x99s lifetime go to the beneficiary if the stock is owned\n           by T at T\xe2\x80\x99s death.\n        e. Increase after T\xe2\x80\x99s death and during probate:\n              i. Specific devisees \xe2\x80\x93 all increases go to the beneficiary\n             ii. General devisees \xe2\x80\x93 do not receive any increase.  Except\n                 beneficiary may receive interest paid on beneficiaries\xe2\x80\x99\n                 gift during the interim between T\xe2\x80\x99s death and distribution\n                 of the estate.\n        f. Abatement: the process by which certain gifts are decreased.\n              i. Order of abatement if omitted spouse/child/domestic\n                 partner:\n                    1. First abate property not passing by D\xe2\x80\x99s will or\n                       revocable inter-vivos trust\n                    2. Then abate from all beneficiaries of T\xe2\x80\x99s will and\n                       revocable inter-vivos trust pro rata to the value of\n                       the gift received.\n             ii. Order to pay off general debts of the decedent:\n                    1. Intestate property\n                    2. Residuary gifts\n                    3. General gifts to non-relatives\n                    4. General gifts to relatives\n                    5. Specific gifts to non-relatives\n                    6. Specific gifts to relatives\n        g. Exoneration: not automatic in California \xe2\x80\x93 property given by\n           will passes subject to all encumbrances unless T provides\n           otherwise in will\n  12) Will Substitutes\n        a. Gifts causa mortis: gifts of personal property perfected by\n           delivery, but motivated by fear of impending death.\n              i. Revocable: subject to claims of creditors / widows\n             ii. Effective as non-probate transfer if unrevoked at death;\n            iii. Automatically terminates if T lives.\n        b. Totten Trusts \xe2\x80\x93 see Trusts outline.\n'


b'\nCONSTITUIONAL LAW\n\nI. Jusiticiable Case or Controversy\n   A. Standing (injury, causation, and redressibility)\n        a. Associational Standing.  Must show: (1) members would have\n           standing to sue on their own; (2) interests are germane to the\n           organization\xe2\x80\x99s purpose; (3) no need for member participation\n        b. Taxpayer Standing: (generally establishment clause) Must show:\n           (1) enacted under Congress\xe2\x80\x99s taxing and spending power; (2)\n           exceeds some specific limitation on power\n   B. Ripeness (fitness of the issue, question of hardship if review is\n      denied)\n   C. Mootness (actual controversy must exist at all stages of lit., except:\n      wrong capable of repetition but evading review, voluntary cessation)\n   D. Decline Jurisdiction?\n        a. Political Question\n        b. Abstention: unclear state law; pending state prosecution\n        c. Eleventh Amendment: bars suits against states in federal court.\n           Exceptions, (1) waiver, (2) abrogation under \xc2\xa7 5, 14th Am, (3)\n           suits for injunctive relief against state officers.\n        d. AISG: 2 grounds; 1 state 1 federal; reversal on federal ground\n           will not change the result\n\nII. What Kind of Constitutional Issue\n   A. Separation of Powers \xe2\x80\x93 Branches of Government\n        a. Judicial (justiciability requirements + final judgment rule)\n        b. Executive (foreign and domestic powers and limitations,\n           especially executive privilege)\n        c. Legislative (sources of power and limitation)\n   B. Federal Legislative Powers\n        a. Sources of power\n              i. Commerce Clause: Congress may regulate the channels and\n                 instrumentalities of interstate commerce.  And, may\n                 regulate economic activity that has a substantial effect on\n                 interstate commerce.\n             ii. Taxing & Spending: Congress may tax and spend for the\n                 general welfair\n            iii. Taking Property\n        b. Necessary and Proper Clause: Congress may use any means not\n           prohibited by the constitution to carry out its authority.\n        c. 10th Am: All powers not granted to the US, nor prohibited to the\n           states, are reserved to the states.  So, Congress cannot compel\n           state regulatory or legislative action.  But, Congress can\n           induce state gov. action by putting strings on grants, so long\n           as related to spending program.\n   C. Federal Executive Power\n        a. War: President has no power to declare war, but may act\n           militarily in actual hostilities against the US w/out a\n           congressional declaration of war under his broad power as\n           Commander-in-Chief to use American troops in foreign affairs.\n           Congress may limit by military appropriations.\n        b. Foreign Relations: President has paramount power to represent\n           the US in foreign relations.\n              i. Treaties: President has power to enter treaties w/ the\n                 consent of 2/3 of the senate\n             ii. Executive Agreement: President has power to sign an\n                 executive agreement with the head of a foreign country.  No\n                 Senate consent required.\n        c. Domestic affairs: appointment and removal power\n   D. State Interference w/ Federal System\n        a. Preemption: Under the supremacy clause, a federal law is the\n           supreme law of the land, and thus may preempt or supersede state\n           law. (express or implied\n        b. Dormant Commerce Clause: principal that state and local laws are\n           unconstitutional if they place an undue burden on interstate\n           commerce.\n              i. Discrimination against out-of-staters \xe2\x86\x92 presumed undue\n                 burden on interstate commerce, unless it is necessary to\n                 achieve an important government purpose\n                    1. Exceptions: (1) congressional approval, (2) market\n                       participant.\n             ii. Absent discrimination \xe2\x86\x92 if the gov is burdening interstate\n                 commerce \xe2\x86\x92 balance the benefit to the state against ht e\n                 burden on interstate commerce.\n        c. Privileges & Immunities Clauses, art. IV: no state may deny to\n           citizens on another state the privileges and immunities of its\n           own citizens.  Violated where state regulation discriminates\n           against individuals with regard to important economic activities\n           or civil liberties unless it is necessary to achieve an\n           important government interest.\nIII. Individual Rights\n   A. State Action \xe2\x80\x93 the Constitution only applies if there is action by a\n      state or local gov officer or private individual whose behavior meets\n      the requirements for state action.  E.g. individual or entity perform\n      exclusive public function or has significant state involvement in\n      their activities.\n   B. Speech (1st Am)\n        a. Prior Restraint: (1) gravity of harm justifies restraint; and\n           (2) necessary to prevent harm\n        b. Vagueness & Overbreadth: A law is unconstitutionally vague if a\n           reasonable person cannot tell what speech is prohibited and what\n           is allowed.  A law is unconstitutionally overbroad if it\n           regulates substantially more speech than the constitution allows\n           to be regulated.\n        c. Symbolic speech is protected (e.g. flag burning, cross burning\n           (unless a threat), expenditures)\n        d. Unprotected speech\n              i. Incitement of illegal activity if substantial likelihood of\n                 imminent illegal activity\n             ii. Obscenity if (1) appeals to prurient interest, (2) patently\n                 offensive under the law, (3) taken as a whole, lacks\n                 serious redeeming, artistic, literary, political or\n                 scientific value.\n            iii. Commercial speech that inherently risks deception or ads\n                 for illegal activity\n        e. Places Available for Speech\n              i. Public Forums (e.g. sidewalks parks): regulations must be\n                 content and viewpoint neutral; may regulate the time, place\n                 and manner of speech to serve important interest.  Must\n                 leave open adequate alternative places for communication.\n             ii. Limited Public Forums (non-public forums gov. opens to\n                 speech): same as above\n            iii. Non-Public Forums (military bases, airports, schools): gov\n                 may regulate so long the regulation is reasonable and\n                 viewpoint neutral\n        f. Freedom of Association: laws that prohibit or punish membership\n           in a group must meet strict scrutiny.  Must prove that the\n           person (1) actively affiliated, (2) knowing of its illegal\n           activities, (3) with the specific intent to further those\n           activities.\n   C. Takings (5th Am)\n        a. Taking must be for public use\n        b. Taking requiring just compensation v. a regulation under police\n           power not requiring just compensation\n        c. Just compensation?  Usually fair market value.\n   D. Religion\n        a. Establishment Clause \xe2\x80\x93 the test: (1) law must have a secular\n           purpose, (2) neither advances nor inhibits religion, (3) no\n           excessive entanglement w/ religion.\n        b. Free exercise clause: can\xe2\x80\x99t be used to challenge a neutral law\n           of general applicability\n   E. Retroactive Legislation\n        a. Impairment of Contract: no state shall impair the obligation of\n           contracts.\n              i. Interference w/ private Ks \xe2\x86\x92 intermediate scrutiny; gov Ks\n                 \xe2\x86\x92 strict scrutiny.\n        b. Retroactive civil liability need only meet rational basis review\n   F. Equal Protection (14th Am) (applies to the fed gov through the due\n      process clause of the 5th Am)\n        a. Levels of Scrutiny\n              i. Strict \xe2\x80\x93 compelling state interest and means necessary to\n                 achieve state interest\n             ii. Intermediate \xe2\x80\x93 important state interest and means\n                 substantially related\n            iii. Rational basis \xe2\x80\x93 legitimate state interest and means\n                 rationally related\n        b. Fundamental rights: 1st Am, travel, voting \xe2\x86\x92 strict scrutiny\n        c. Classification (on its face, or if facially neutral \xe2\x86\x92\n           discriminatory impact and intent)\n              i. Suspect \xe2\x80\x93 race and alienage \xe2\x86\x92 strict scrutiny\n             ii. Quasi suspect \xe2\x80\x93 gender and illegitimacy \xe2\x86\x92 intermediate\n                 scrutiny\n            iii. Other classes \xe2\x80\x93 wealth, age, disability, sexual orientation\n                 \xe2\x86\x92 rational basis\n   G. Procedural Due Process (14th Am)\n        a. Has the government deprived a person of life, liberty (a\n           significant freedom secured by the Constitution or statute), or\n           property (an entitlement to a continued receipt of a benefit).\n        b. What process is due?  Balance: (1) importance of interest to the\n           individual, (2) ability of additional procedures to increase the\n           accuracy of the fact finding; and (3) gov. interest\n   H. Substantive due process (14th Am) \xe2\x80\x93 does the gov have an adequate\n      reason to take away a persons life, liberty or property \xe2\x86\x92 generally\n      must meet strict scrutiny.\n        a. Economic liberties \xe2\x86\x92 rational basis test\n        b. Taking \xe2\x86\x92 public purpose + just compensation\n        c. Abortion \xe2\x86\x92 can\xe2\x80\x99t place an undue burden on the ability to obtain\n           an abortion\n'