Fed Formal Adjudication
Agency must give notice in a reasonable time containing time, place, and nature of the hearing, the legal authority and jurisdiction for the hearing, and the matters of fact and law asserted. (+ admissibility of evidence, right to cross examine, unbiased decisionmaker). Final order must be in writing with enough sufficient findings to permit review by the courts.
Agency must give notice of the proposed rule by publishing it in the Sec State's bulletin at least 21 days before the effective date. It must include (1) subject matter and purpose of the intended rule, (2) time, place, and manner to comment, (3) statutory authority, (4) statement of need, and (5) fiscal impact statement. Public comment is accepted in writing unless 10 or more people request oral hearing.
Federal Informal Rulemaking
Agency must give notice published in the Federal Register 30 days before the effective date of the rule. Notice must include (1) subject matter and purpose of the proposed rule, (2) time, place, and nature of the proceeding; and (3) reference to the legal authority. Public has the right to comment in writing only. Final rule must be published in the Federal Register with a concise statement of the basis for the rule and its purpose.
Procedural Due Process
The Due Process Clause of the 14th Amendment provides that states may not deprive a person's life, liberty, or property without due process of law. . . In determining the amount of process due in a deprivation of a property interest, the court must apply Matthews v. Eldridge balancing test by weighing the interest of the individual and the risk of erroneous deprivation against the governmental interest of fiscal and administrative efficiency. Goldberg v. Kelly states that a pre-deprivation hearing may be required if the interest at issue is fundamental to survival.
Definition of Agency
Agency is a consensual fiduciary relationship created when two parties manifest the intent that the agent will act on the principal's behalf and subject to the principal's control.
Duties of the agent
The agent has duties as stated in the contract and implied by law. Agent has a duty to perform, using reasonable care, diligence, and skill, for the benefit of the principal. He must obey all reasonable directions and notify the principal of all matters. An agent also has a fiduciary duty of loyalty such as avoiding secret profits and conflicts of interest.
Apparent authority is the authority that principal allows the agent to assume, or holds the agent out as possessing. Apparent authority exists when an agent makes an agreement which appears to be within the scope of his authority.
A partnership is an association of 2 or more persons to carry on as co-owners of a business for profit. The partnership is a legal entity and generally treated as distinct from the individual partners. No formalities are required to form a partnership. In the absence of a formal partnership agreement, the parties' intent determines whether a partnership has been formed.
Partners' liability to Partnership
All partners are jointly and severally liable to pay partnership obligations. However, if a partner pays more than her pro rata share of any obligation, she has a right to seek indemnification from the partnership and the other partners.
Shareholders have voting rights in election and removal of directors, adoption and modification of bylaws, and fundamental changes to the corporate structure. They also have right to inspect the corporate books and records. They do not have the power to run the day to day affairs.
Shareholders generally do not have fiduciary duty to the corporation or to the other shareholders and can vote or sell their stock for their own personal benefit. Majority shareholders, however, cannot use their power to oppress the interests of minority shareholders.
Directors' duties include the fiduciary duties of loyalty and due care. Duty of care requires the exercise of reasonable business judgment such as would be used by a prudent investor to manage his own affairs. Duty of loyalty requires directors to avoid conflicts of interest, undue influence, and personal gain at the expense of the corporation.
Business Judgment Rule
There is a presumption that in making business decisions, directors of a corporation acted in the best interests of the corporation. P must overcome the presumption to prevail.
Piercing the corporate veil
Piercing may be proper when (1) the corporation is the alter ego of one of the shareholders; (2) corporation is undercapitalized at its inception; (3) corporation was formed to commit fraud; or (4) corporation failed to follow required formalities.
Subject Matter Jurisdiction
SMJ is the power of the court over the subject matter of an action. Federal courts are courts of limited jurisdiction. Therefore, there must be a jurisdictional basis (1) arising under Federal Law or (2) Diversity. A claim arises under federal law if the claim is either (1) created by federal law, or (2) created by state law but depends on a substantial Federal Question. Diversity jurisdiction requires complete diversity between the parties, and the amount in controversy must exceed $75,000.
Personal Jurisdiction (Statutory)
PJ is the power of the court over D's person or property. Oregon courts have PJ if the Oregon law grants the power and the law is constitutional. Under Oregon law, there are 3 bases for PJ: (1) consent, (2) presence, and (3) the long arm statute. [Consent: express and implied. . . Presence: (1) actual, (2) domiciled, (3) doing business. . . Long Arm: Land, Injury Matrimony, Insurance, Transaction].
Personal Jurisdiction (Constitutional)
Due Process of 14th Amendment allows a court to exercise general PJ over a non resident D when D maintains substantial, continuous, and systematic contacts with the forum state. In such case, state may assert jurisdiction even when the claim is unrelated to D's contacts with the state. State may exercise specific personal jurisdiction over a non resident D when D has (1) purposefully availed itself of the benefits and protections of the forum state through minimum contacts, (2) the claim arises out of those contacts, and (3) the exercise of jurisdiction does not offend traditional notions of fair play and substantial justice.
If the court does not have original jurisdiction over a claim, it may exercise supplemental jurisdiction over that claim. Supplemental jurisdiction authorizes a district court with original jurisdiction over one claim to exercise jurisdiction over other claims that are so related to the action with original jurisdiction that they are part of the same "case or controversy" and arise from a "common nucleus of operative facts."
Service of Process
For service to be adequate, it must be served in a manner reasonably calculated, under all circumstances, to apprise the interested parties of the pendency of the action and afford them an opportunity to be heard. ORCP allows service of summons & complaint by (1) personal service on D or D's agent authorized to accept service, (2) substituted service on D's abode, or (3) at D's office. (Elaborate on the methods relevant to the facts)
The court will grant summary judgment if there is no genuine dispute of material fact and the movant is entitled to judgment as a matter of law.
The court will grant JMOL if no reasonable jury would have a legally sufficient evidentiary basis to find for the non-moving party.
Alimony is payments in cash to or for benefit of an ex-spouse, pursuant to a written instrument, where two do not live together, and obligation terminates upon death of the payee. Payment must not be a property settlement or child support.
Gross income is all income, from whatever source derived unless excluded by the Code.
Government action (state or federal);
how it applies (e.g., 1st Amendment through 14th);
if speech asses prior restraint, vague, overbroad, and broad discretion
Dormant Commerce Clause
Congress has exclusive power under the Commerce Clause to regulate all foreign and interstate commerce. Unless preempted by Congress, state governments may regulate local aspects of interstate commerce as long as the regulation does not discriminate against out of state competition to benefit local economic interests and is not unduly burdensome.
Free Exercise clause of 1st Amendment prevents government from imposing burdens on individuals on the basis of their religious beliefs, but it may regulate conduct that relates to religion. A neutral law of general applicability that is not aimed at religion does not violate the FE Clause. . . Establishment Clause prohibits government from giving preference to one religion. According to the Lemon test, a non-discriminatory regulation will not violated the Establishment clause if (1) it has a secular purpose, (2) its primary effect does not advance of inhibit religion, and (3) it does not produce excess entanglement with religion.
14th Amendment EQ Protection Clause (& 5th Amendment Due Process for Federal) prohibits state governments from discriminating against similarly situated persons in certain circumstances. (Suspect class & fundamental rights = SS).
1st Amendment generally prohibits the government from restricting the content of speech unless the restriction is necessary to achieve a compelling government interest. (insert unprotected speech). A TPM regulation of speech in a public forum is invalid unless it is content neutral, narrowly tailored to serve an important government interest, and leaves open alternative channels of communication. (if limited or non-public, viewpoint neutral + rational basis).
A lawyer must keep separate all property of clients or third persons from the lawyer's own property. Client Funds must always be kept in a LTA until earned by the lawyer or expenses are incurred. Any sum paid to the lawyer for future work, and not yet earned, must be placed in a LTA. One exception is when the lawyer and client have a clear written agreement that the fee paid in advance constitutes a nonrefundable retainer, earned upon receipt. Lawyers must keep complete records of all funds provided to him for five years.
A lawyer may not reveal information relating to the representation of a current (or former) client unless the client gives informed consent. A lawyer cannot use information relating to a client to the disadvantage of that client unless the information is general knowledge, the client give informed consent, the disclosure is impliedly authorized by the representation, or is otherwise permitted by the Rules. Protected information includes information that would embarrass, be to the detriment of the client, or be protected under attorney client privilege.
Personal Conflict of Interest
When a lawyer is dealing with a person who is not represented by counsel, the lawyer must not state or imply that he is disinterested. Conflict of interest exists whenever there is a significant risk that the representation will be materially limited by the lawyer's responsibility to another client, former client, or a third person of interest to the lawyer.
Continued Representation Despite Conflict
A lawyer can continue representation despite a conflict of interest if: (i) the lawyer believes he can provide competent and diligent representation to each client; (ii) the representation is not prohibited by law; (iii) the representation does not obligate the lawyer to contend for one client that he has a duty to oppose for another; and (iv) each affected client give consent.
Conflict with Former Client
A lawyer may not represent a person, in the same or substantially related matter, if that person's interests are materially adverse to the interests of a former client unless both clients give informed written consent. Matters are substantially related if (i) representation of the current client in the subsequent matter is likely to damage the former client that the lawyer represented in a previous matter; or (ii) representation of the former client provided the lawyer with information relating to the representation which is likely to damage the former client in the subsequent matter.
An Offer is a promise or commitment to enter into a K that is communicated to the offeree, with intent to be bound, and contains definite and certain material terms.
An Acceptance is a manifestation of assent to the terms of an offer. Note: mirror image and mailbox.
Consideration is a bargained for exchange of legal value which is a benefit to the promisor and a detriment to the promise. Note: Mutual promises, acts, forbearance, etc. Courts will not question the adequacy of consideration.
Expectation - Put the non-breaching party in the position he would have been in if the K had been performed.
Consequential - Damages that flow naturally from a wrongful act
Reliance - Put the injured party in the position she would have been in had the K not been entered into.
Implied Warranty of Merchantability
Merchant warranties that the goods are fit for the ordinary purpose. Warranty arises without fault, in every sale by a merchant who deals in goods of the kind. It can be disclaimed by a conspicuous disclaimer that uses the words "merchantability," "as is," or "with all faults."
Express warranty arises when the seller makes an affirmation of fact or promise to the buyer that is not mere puffery. That statement becomes part of the basis of the bargain, and cannot be disclaimed. The warranted goods must conform to the claimed fact.
Implied Warranty of Fitness for a Particular Purpose
Warranty of fitness for a particular purpose arises when the seller knows that the buyer is relying upon the seller's skill or judgment to select the product for a particular purpose, and the buyer in fact relies upon the seller's skill or judgment. The warranted goods must conform to serve the purpose communicated.
Cover - after good faith purchase of goods, recover the difference between the cost of her cover and K price.
Warranty Damages - Value of goods as ordered minus the value of the goods as accepted.
Market Damages - Difference between the K price and current market price.
Incidental Damages - Are costs incurred in dealing with the breach. They are always recoverable.
Consequential Damages - Available if the damages were foreseeable to the breaching party at the time of contracting.
The elements of adverse possession are (1) actual occupation or use which is (2) open and notorious, (3) hostile or under claim of right or title, and (4) continuous for the statutory period. Evidence must be clear and convincing.
There are present covenants (seisin, right to convey, covenant against encumbrances) which are violated, if at all, at the time of conveyance. Future covenants (warrant of title, quiet enjoyment, further assurances) extend beyond the time of conveyance.
An easement is a non-possessory interest created by grant or implied law. An easement is appurtenant is the right to use benefits the dominant estate (estate of the holder of the easement). Easements appurtenant "runs with the land" (i.e., transfers automatically when the dominant estate is transferred).
Easement implied by use
The use claimed under implied easement must correspond to a prior use that was (1) continuous and not sporadic, (2) apparent to anyone making a reasonable inspection of the land, and (3) reasonably necessary.
Easement by necessity
When an owner of a tract of land sells a part of that tract that has no outlet to a public road except over the remaining land of the seller, a right-of-way of necessity is created by implied grant over the remaining land of the seller.
An assignment creates privity of estate between the landlord and the assignee, and a privity of contract between the assignor and the assignee.
To be effective a deed must; (i) be in writing, (ii) sufficiently describe the land, (iii) identify the grantor and grantee, (iv) evidence an intent to convey, (v) be signed by the grantor, (vi) be delivered, (vii) be accepted.
Marketable title is title that is reasonably free from doubt. It is a title that a reasonably prudent buyer would be willing to accept because there is no reasonable probability that it will subject him to a lawsuit.
Joint Tenancy Requirements
At common law, joint tenancy required the 4 unities: (1) a conveyance to two or more people at the same time, (2) by the same instrument, (3) of the same interest, and (4) giving identical rights to possession of the property. Under modern law, joint tenancy is disfavored and can only be created with a clear expression of a right of survivorship.
Evidence is relevant if it makes a fact of consequence more or less probable. However, the court may exclude relevant evidence if its probative value is substantially outweighed by its prejudicial effect.
Evidence of a person's character is not admissible to prove that he acted in conformity with that character. However, evidence of crimes, wrongs, or acts is admissible to prove motive, opportunity, intent, preparation, or plan.
Hearsay is an out of court statement offered to prove the truth of the matter asserted. Hearsay is generally inadmissible unless it falls within an exception to the hearsay rule.
The credibility of a witness may be attacked by evidence on the form of opinion or reputation, but the opinion or reputation evidence may refer only to the witness's truthfulness or untruthfulness. Extrinsic evidence of specific instances of misconduct to attack witness credibility is not allowed.
Conviction used to impeach
A conviction may be used to impeach a witness if it was a felony, or if it was a crime that involved a false statement or dishonesty. Under OEC, the crime must have occurred in the last 15 years, but must submit a certified copy of conviction. Under FRE the crime must have occurred in the last 10 years and its probative value must not be outweighed by unfair prejudice.
Expert testimony is admissible if the subject matter is one where scientific, technical, or other specialized knowledge would assist the trier of fact in understanding the evidence or determining a facts in issue. Expert witness must be qualified in the specific area and his opinion must be based on information relied upon by experts in that field.
If call of question asks "what motions should be filed", the answer is motion to suppress
Attempt requires a specific intent to commit a crime and an overt act in furtherance of the crime.
2 tests for overt act:
Proximity test: The act is evaluated based upon how close the defendant came to completing the offense
Substantial step (majority): The act or omission must constitute a substantial step in the course of conduct planned to culminate in the commission of the crime.
Murder is unlawful killing with malice aforethought.
Malice aforethought: intent to kill, intent to inflict great bodily injury, reckless indifference to an unjustifiably high risk to human life, intent to commit a felony
Note: proximate cause and "but for" test
Battery is an intentional, unlawful application of force to the victim's person.
If the police have probable cause to believe that a vehicle contains contraband, or evidence of a crime, they may search the vehicle without a warrant. The search may extend to any portion of the vehicle where the items may reasonably be found.
Search and Seizure
Under the 4th Amendment to the U.S. Constitution which is applicable to the states through 14th Amendment, a search or seizure must be reasonable to be valid. Generally, to be reasonable, a search or seizure must be pursuant to a warrant.
Miranda warnings must be given to protect the 5th Amendment rights, applicable to states through the 14th Amendment, before a custodial interrogation. [insert Miranda language here]
Note: look for actual custody
Conspiracy is an agreement between two or more persons with the intent to enter into an agreement and achieve the object of the agreement. Generally, proof of an overt act is required. A member of a conspiracy is liable for all foreseeable crimes committed by a co-conspirator in the furtherance of the conspiracy.
Note: MPC allows unilateral conspiracy
An accomplice is one who, with the intent that the crime be committed, aids, advises, or encourages the principal before or during the commission of the crime. The accomplice is liable for any crimes he aided and for any other crimes committed in the course of committing the contemplated crimes as long as the other crimes were foreseeable.
For attachment, secured party must give value, debtor must have rights in the collateral, and either the debtor must sign a security agreement or must give possession of the collateral to the secured party under an oral security agreement (pledge). A written security agreement must create (grant) a security interest, identify the collateral, and be signed by the debtor.
Perfection requires attachment plus. Perfection by filing requires a financing statement that gives the debtor's correct name; describe the collateral; and is authorized by the debtor. Financing statement must be filed in the correct place (Secretary of State) for everything except for fixtures, which are filed with county real estate records.
Generally, between 2 perfected interests, first to file or perfect has priority. PMSI in non-inventory has super-priority over a previously perfected floating lien if the financing statement is filed within 20 days after debtor receives possession of the collateral. PMSI in inventory has super-priority if written notice is given to the prior secured parties, and financing statement is filed before debtor receives possession of the collateral.
Good faith purchaser vs. Perfected Secured Party
A good faith purchaser for value generally takes subject to a perfected security interest and takes free of an unperfected security interest. It also attaches to proceeds of sale received by the debtor. However, a buyer in the ordinary course of business takes free of the secured interest. Buyer in the ordinary course of business is someone who bought in good faith, in the regular course of business from a debtor who was a dealer in the goods.
Sale of repossessed collateral
A repossessing creditor must give 10 days notice of the public or private sale to debtor, and other secured parties. All aspects of the sale must be commercially reasonable.
Scope of Art 9:
Consensual liens in personal property and fixtures
A prima facie case of negligence requires proof of (i) a duty, (ii) breach, (iii) actual and proximate cause, and (iv) damage.
Negligence - Reasonable Person
Generally, a person owes a duty to exercise the care of a reasonable prudent person to protect against unreasonable risks of danger to foreseeable plaintiffs.
Negligence - Owner Occupier (O/O)
The duty owed by a landowner depends on the status of the plaintiff.
Negligence - O/O - Licensee
A licensee is a social guest or one who enters the land with the landowner's permission for her own purpose. The landowner has a duty to warn the licensee of a dangerous condition known to the owner that creates an unreasonable risk of harm to the licensee and that the licensee is unlikely to discover.
Negligence - O/O - Invitee
An invitee is one who enters another's land with the landowner's permission for the benefit of the landowner. A landowner owes an invitee a duty to warn of or make safe all dangerous conditions that the landowner should know of, including conditions that could be discovered by a reasonable inspection.
Negligence - O/O - Discovered Trespasser
A discovered trespasser is one who enters the land of another without permission or who exceeds the scope of their licenses or invitation. A landowner owes a discovered trespasser the duty to warn or make safe artificial conditions that create a risk of serious injury and that the landowner knows of.
Negligence - Actual & Proximate Cause
But for D's negligent conduct, P would not have suffered injury. However, even where D's negligent actually caused P's injury, if the injury was not foreseeable, D will not be liable for P's damages.
Negligence - Defenses - Assumption of Risk
A P who knowingly and voluntarily assumes the risk of harm from the negligent or reckless conduct of another is barred from recovery of the risk involved.
D engaged in a volitional physical act intending to create a reasonable apprehension of immediate harmful or offensive contact, and the apprehension was reasonable.
D intentionally inflicted harmful or offensive contact with the P's person.
The elements of a claim of false imprisonment are: (i) intentional confinement of P and (ii) P is aware of confinement.
Intentional Infliction of Emotional Distress
Defendant is liable for intentional infliction of emotional distress if he engages in extreme and outrageous conduct that causes plaintiff to suffer substantial emotional distress.
A person is entitled to use reasonable force to protect against an imminent use of force. The person may only use a degree of force reasonably required to protect from the threatened harm.
A prima facie case for defamation is: (i) a defamatory statement (a statement that has a tendency to harm reputation) by the D; (ii) the statement is about the P; and (iii) the statement has been published to persons other than the P. In addition to the prima facie elements for regular defamation, the P must prove (i) that the statement was false, and (ii) that the D was negligent with regard to truth if P is a private figure, or with reckless disregard to its truth if P is a public figure.
Products Liability - Strict
A party who sells or leases a product in a defective condition that is unreasonably dangerous to the user is liable for any resulting personal injury or property damage if the seller is in the business of selling or leasing such products.
Products Liability - Negligence - Duty of Supplier
Generally, one who supplies a product for another to use has a duty to use reasonable care in designing, manufacturing, selling or distributing a product.
Will Formation - Elements of Proper Execution
A will must be properly executed. Proper execution requires that the will be (i) in writing; (ii) signed by the testator; (iii) attested to by two competent witnesses in the witnesses' presence; and (iv) signed by the witnesses in the testator's presence.
Note - If proper execution is an issue on an MEE question, the question will contain a statute that details the requirements. ORT will require we know the above test.
Will Formation - Testamentary Capacity
A valid will requires the testator to have testamentary capacity at the time of execution of the will. To have testamentary capacity the testator must be 18 years of age and be of sound mind. To be of sound mind, the testator must (i) have knowledge of the natural objects of his bounty, (ii) have knowledge of the nature and extent of his property, and (iii) understand the dispository scheme under his will.
Will Formation - Testamentary Intent
A valid will requires the testator to have testamentary intent. To have testamentary intent, the testator must intend the instrument to operate as his will. He must (i) intend to dispose of the property, (ii) intend that the disposition occur only on his death, (iii) intend that the instrument in question accomplish the disposition, and (iv) the intent was a present intent.
Intestate Succession - no surviving spouse but surviving descendants, per capita with representation
If there is no surviving spouse, the entire estate passes to the decedent's children and descendants of deceased children in equal shares at the first generational level at which there are living takers. Each living person at that level takes a share, and the share of each deceased person passes to his issue by right of representation.
Undue influence voids portions of a will that were affected by the undue influence. The elements of undue influence are that (i) influence was exerted on the testator, (ii) which overpowered the mind and free will of the testator, and (iii) the will that would not have been executed but for the influence. A presumption of undue influence arises where: (i) there was a confidential relationship between the testator and the beneficiary; (ii) the beneficiary participated in procuring or drafting the will; and (iii) the will unnaturally benefits the beneficiary. If a presumption arises, the burden shifts to the proponent of the will to prove that it was not induced by undue influence.
Order of Abatement
In the event the assets of an estate are insufficient to satisfy the testamentary dispositions, the devises will abate in the following order: (i) the residuary takers; (ii) general devises; then (iii) specific devises.
A valid will may be revoked by (i) a valid subsequent will properly executed, (ii) a physical act on the face of the will indicating testator's intent to revoke, or (iii) by operation of law.
Trusts - Elements
To create a valid trust, there must be a (1) settlor who, intending to create a trust for (2) a lawful trust purpose, delivers the (3) trust property to the (4) trustee to hold for the benefit of (5) one or more beneficiaries.
Trusts - Creditors' Rights
A creditor of a trust beneficiary cannot exercise greater rights over trust property than that of the debtor beneficiary. If the trust is a discretionary trust and the trustee has not decided to make distribution to the beneficiary, the creditor cannot reach the trust assets. If the trustee decides to make a distribution, the creditor can demand the trustee make the distribution to it to the extent of the distribution or the outstanding debt.