The outline

The MBE on one screen

200 questions, 175 scored, 25 per subject, two 3-hour sessions, four options, one best answer, no penalty: answer every one.

1. 200 questions in two 3-hour sessions of 100
2. 175 are scored and 25 are unscored pretest questions you cannot tell apart
3. The 175 scored questions split evenly: 25 in each of seven subjects
4. Four options, one best answer
5. No points are lost for a wrong answer, so never leave one blank

Exceptions: The seven subjects overlap with NextGen, but its scope and format differ: check NCBE's NextGen content scope for your jurisdiction

How the MBE counts toward your UBE score

The MBE is half of the UBE (MEE 30%, MPT 20%) and is reported on a scale of about 40 to 200, with no published raw-to-scale table.

1. MBE: 50% of the UBE score
2. MEE: 30% of the UBE score
3. MPT: 20% of the UBE score
4. UBE total: reported on a 400-point scale
5. MBE alone: a scaled score of about 40 to 200

Exceptions: NCBE says it is not possible to know in advance how many correct answers a given scaled score needs · Each jurisdiction sets its own minimum UBE score: check your board

The controlling-law assumptions

Each subject names the law it assumes: FRCP and Title 28, the Constitution, UCC Articles 1 and 2, the FRE, pure comparative fault. The stem names any split.

1. Civil Procedure: the FRCP as in effect, plus Title 28 on jurisdiction, venue and transfer
2. Constitutional Law: the federal Constitution
3. Contracts: the official text of UCC Articles 1 and 2 for a sale of goods
4. Evidence: the Federal Rules of Evidence as currently in effect
5. Torts: joint and several liability, pure comparative fault, survival and wrongful-death actions available
6. Criminal Law and Procedure: generally accepted principles; the stem names a split
7. Real Property: generally accepted principles; the stem names a split

Exceptions: Whenever the question says otherwise, the question wins · Stems name the rule set when it splits: 'The jurisdiction follows a race-notice statute' · Contracts: about a quarter of the questions are on UCC Articles 1 and 2, so settle goods or services first · FRE 801(d)(1)(A) is amended on Dec 1, 2026, before the February 2027 sitting; no item in this unit turns on it

The three parts of an MBE item

Stem (the facts), lead-in (the call), options (one key, three distractors): a distractor is plausible but never a second or partial key.

1. Stem: the facts, with only the actors and facts the question needs
2. Lead-in: one complete question that tells you what to decide
3. Key: the one best answer
4. Three distractors: plausible, but each wrong for a reason you can state

Exceptions: The stem may state the rule set ('the jurisdiction follows...'); it never states the answer

The because clause is the answer

Many options are a verdict plus a because. Two options can share a verdict; the key is the one whose reason is true on these facts and decides this call.

1. Pick the verdict the rule gives on these facts
2. Read the because clause: is it true law?
3. Check it is true on these facts, not on facts you added
4. Check it is the reason that decides this call

Exceptions: Yes/No x because grid: decide the verdict first, cross out the two options with the other verdict, then choose between the two reasons · 'Because': the reason must be true law and supported by these facts · 'If': the condition must be possible on these facts and, if met, enough on its own to produce the verdict · 'Unless': the condition must be the one thing that would flip the verdict; the stem may leave it open

The Torts defaults the exam assumes

Silence means pure comparative fault (reduce the plaintiff's damages, never bar) and joint and several liability (each liable defendant owes the whole award).

1. Find each party's percentage of fault
2. Reduce the plaintiff's damages by her own percentage; never bar recovery, whatever her share
3. Each liable defendant answers for the whole reduced award

Majority rule: Comparative fault in some form: the plaintiff's recovery is reduced by her share.
Minority rule: Contributory negligence: any fault by the plaintiff bars recovery.

Habit and routine practice (FRE 406)

FRE 406 admits a person's habit or an organization's routine practice to prove conformity on one occasion; general character does not (FRE 404(a)).

1. A specific response, not a general disposition
2. Repeated regularly in the same kind of situation
3. Offered to show the person or organization acted that way on this occasion

Exceptions: No corroboration and no eyewitness are required (FRE 406, second sentence) · A business's routine practice counts as much as a person's habit

The forum-defendant rule

A case removable only on diversity cannot be removed if any properly joined and served defendant is a citizen of the forum State.

1. Removal rests solely on diversity of citizenship
2. A defendant is a citizen of the State where the action was brought
3. That defendant was properly joined and served

Exceptions: Federal-question removal is not limited by this rule · Defendants sued under fictitious names are disregarded (28 U.S.C. §1441(b)(1)) · The defect is waived unless the plaintiff moves to remand within 30 days after the notice of removal is filed (§1447(c))

Two kinds of lead-in, and the words that change the task

Predictive lead-ins ask what will happen; practice-oriented ones ask what a lawyer or judge should do. 'If any', 'most accurate' and 'best' change the job.

1. Predictive lead-in: who prevails, is it admissible, is it constitutional
2. Practice-oriented lead-in: the best argument, response, objection or option
3. 'If any': no crime or no liability can be the key
4. 'Most accurate': judge all four statements and pick the most correct
5. 'Best' or 'strongest': a legally possible answer is not enough

Exceptions: Lead-ins are complete, positively framed sentences, so read the whole sentence before you choose

Modifying a contract: UCC 2-209 versus the common law

Common law: a modification needs new consideration. UCC 2-209(1): a modification of a sale of goods needs none, only good faith.

1. Decide: a sale of goods (Article 2) or not (common law)?
2. Common law: new consideration, or circumstances the parties did not anticipate?
3. Article 2: no consideration needed; was the modification made in good faith?
4. Does the contract as modified need a signed writing (statute of frauds)?

Common law: A modification is binding only with new consideration, unless it is fair and equitable in view of circumstances the parties did not anticipate (Rest. (2d) Contracts §89).
UCC Article 2: An agreement modifying a contract for the sale of goods needs no consideration to be binding, but must be made in good faith.

Miranda: custody plus interrogation

Warnings are required only before custodial interrogation: a restraint of the degree of formal arrest, plus express questioning or its functional equivalent.

1. Custody: formal arrest, or a restraint of the degree associated with formal arrest
2. Interrogation: express questioning or its functional equivalent
3. No valid warnings and waiver before the statement

Exceptions: A routine traffic stop is not custody (Berkemer v. McCarty, 1984) · A person who comes to the station voluntarily and is told he is free to leave is not in custody (Oregon v. Mathiason, 1977) · A volunteered statement is not the product of interrogation · Questions prompted by an immediate threat to public safety need no warnings first (New York v. Quarles, 1984)

Call first or facts first?

Sources disagree on the order of reading, not on the key point: cover the options until you can say your own answer.

1. Call first: you know what to look for before you read the facts
2. Or facts first, then the call: you read the story once, without a filter
3. Either way, cover the options until you can state your own answer
4. Then use the options to eliminate, and re-read the call before you choose

Exceptions: Both reading orders are prep-industry advice, not NCBE guidance: try each and keep the one that works for you

The clock: 1.8 minutes a question

100 questions in 3 hours is about 1.8 minutes each: question 33 by the first hour, 66 by the second, 100 by the end.

1. First hour: reach question 33
2. Second hour: reach question 66
3. Third hour: finish question 100

Exceptions: Past about 2.5 minutes on a first pass: mark your best guess, move on, and return if time allows · The 1.8-minute pace is arithmetic on NCBE's format; the 33/66/100 checkpoints and the 2.5-minute cap are prep-industry advice, not NCBE guidance

Which exam do you sit in 2027?

Most jurisdictions still give the legacy UBE with the MBE in 2027; ten began NextGen in July 2026 and more switch in July 2027. Check your board.

1. February 23-24, 2027: the legacy UBE in most jurisdictions; NextGen in the ten that began in July 2026
2. July 2027: more jurisdictions switch to NextGen; the rest keep the legacy exam
3. February 2028: the last legacy administration
4. July 2028: Family Law becomes a foundational NextGen subject

Exceptions: Your own board announces when it switches: check its page before you plan · NextGen adds Business Associations and replaces some four-option questions with select-two-of-six items, integrated question sets and performance tasks · Family Law appears on NextGen from July 2026 with the law supplied, and becomes a foundational subject from July 2028 · Where you sit NextGen, this app practises the doctrine you share with the MBE; the written and skills parts need other practice

Recording acts: race, notice, race-notice

Race: first to record wins. Notice: a later buyer for value without notice beats an earlier unrecorded deed. Race-notice: she must also record first.

1. Race: the first deed recorded wins, whether or not there was notice
2. Notice: a later buyer for value without notice wins, whether or not she records first
3. Race-notice: a later buyer for value without notice wins only if she records before the earlier deed is recorded

Exceptions: Notice is judged when the later buyer pays and takes the deed · Donees and heirs are not purchasers for value

Burglary: common law versus the Model Penal Code

Common law: breaking and entering a dwelling at night to commit a felony. MPC: any building not open to the public, entered with criminal purpose.

1. Common law: a breaking and entering
2. Common law: of the dwelling of another
3. Common law: at night
4. Common law: with intent to commit a felony inside

Exceptions: MPC §221.1(3): no conviction for both burglary and the intended offense unless that offense is a felony of the first or second degree; at common law burglary and the felony committed inside do not merge

Common law: Breaking and entering the dwelling of another at night with intent to commit a felony therein.
Model Penal Code: Entering a building or occupied structure with the purpose to commit a crime there, unless it is open to the public or the entrant is licensed or privileged to enter.

Federal-question jurisdiction and the well-pleaded complaint rule

Federal question means the plaintiff's own complaint shows a federal claim; a federal defense or counterclaim never opens the federal door.

1. A civil action
2. Federal law appears on the face of the plaintiff's well-pleaded complaint
3. The claim arises under the Constitution, laws or treaties of the United States

Exceptions: Complete preemption: a few federal statutes (such as ERISA §502(a) and LMRA §301) so fully occupy a field that a state-law claim is treated as federal · A state-law claim with an embedded federal issue can arise under federal law, but only in a narrow category (next card) · Declaratory judgment: the Act gives no jurisdiction; ask whether the coercive suit the declaratory defendant could bring would arise under federal law (Skelly Oil; Medtronic)

A state-law claim with an embedded federal issue (Grable and Gunn)

A state claim is federal only if the federal issue is necessarily raised, actually disputed, substantial, and safe for federal courts to hear.

1. The federal issue is necessarily raised by the state-law claim
2. The federal issue is actually disputed
3. The federal issue is substantial to the federal system
4. A federal court can decide it without disturbing the federal-state balance

Exceptions: Merrell Dow: a federal statute with no private right of action, used as an element of a state tort, does not by itself confer jurisdiction · The category is 'special and small': most state claims that touch federal law stay in state court

Diversity jurisdiction: complete diversity and more than $75,000

Diversity needs two things at filing: no plaintiff shares a State with any defendant, and more than $75,000 is in controversy.

1. Citizens of different States (or a State's citizen against an alien)
2. Complete diversity: no plaintiff shares citizenship with any defendant
3. The amount in controversy exceeds $75,000, exclusive of interest and costs
4. Both tested when the action is filed

Exceptions: Domestic-relations exception: no divorce, alimony or child-custody decrees, but the exception is narrow (Ankenbrandt) · Probate exception: no probating a will or administering an estate, but other claims may be heard, such as tortious interference with an expected inheritance (Marshall v. Marshall) · Class actions have their own door under the Class Action Fairness Act: minimal diversity, at least 100 members, and more than $5,000,000 in the aggregate (28 U.S.C. §1332(d))

Whose citizenship counts?

Individual: domicile. Corporation: State of incorporation and nerve center. LLC or partnership: every member. Estate or minor: the person represented.

1. Individual: the State of domicile (presence plus intent to remain)
2. Corporation: every State of incorporation and the State of its nerve center
3. LLC, partnership or association: the citizenship of every member
4. Estate, infant or incompetent: the citizenship of the person represented

Exceptions: A lawful permanent resident is still an alien, but §1332(a)(2) gives no jurisdiction over a suit between her and a citizen of the State where she is domiciled (as amended in 2011) · A United States citizen domiciled abroad is stateless: she cannot sue or be sued in diversity · A party's residence alone is not citizenship: a student who intends to return home keeps her old domicile · A traditional trust takes its trustee's citizenship; an unincorporated business entity called a trust, such as a REIT, takes every shareholder's citizenship (Americold) · In a direct action against a liability insurer, with the insured not joined, the insurer is also a citizen of every State of which the insured is a citizen (§1332(c)(1)(A)) · Rule 7.1(a)(2): in a diversity case each party must file a statement naming, and giving the citizenship of, every individual or entity whose citizenship is attributed to it

The amount in controversy: what counts and who aggregates

The plaintiff's good-faith figure controls unless legally certain to fall short; one plaintiff adds every claim against one defendant.

1. The plaintiff's good-faith claim controls, unless a legal certainty shows it cannot exceed $75,000
2. Counts: damages, punitive damages where available, and attorney's fees if a contract or statute provides them
3. Excludes interest and costs
4. One plaintiff may aggregate all her claims against one defendant, related or not
5. Separate plaintiffs may not aggregate separate claims, unless they share a common undivided interest
6. Equitable relief: the value of the object of the litigation

Exceptions: Measured when the complaint is filed (or, in a removed case, at removal): a later amendment, stipulation or smaller recovery below $75,000 does not defeat jurisdiction (St. Paul Mercury) · Supplemental jurisdiction can carry a co-plaintiff's smaller claim when another plaintiff meets the amount (Allapattah, lesson 3) · A defendant's counterclaim is not added to the plaintiff's claim · Plaintiffs with a common undivided interest, such as co-owners of one fund, may aggregate their interests (Snyder v. Harris; Troy Bank) · Claims against several defendants aggregate only if the defendants are jointly liable

Supplemental jurisdiction: the same case or controversy (§1367(a), (c), (d))

With one anchor claim, a federal court may hear other claims from the same common nucleus of operative fact, including claims that add parties.

1. The court has original jurisdiction over at least one claim in the action
2. The other claim shares a common nucleus of operative fact with it
3. No exception in §1367(b) applies
4. The court does not decline under §1367(c)

Exceptions: Claims that join or intervene additional parties are covered (§1367(a), last sentence) · §1367(c): the court may decline if the claim raises a novel or complex state-law issue, substantially predominates, all original-jurisdiction claims are dismissed, or other exceptional circumstances exist · §1367(d): the limitations period is tolled while the claim is pending and for 30 days after dismissal, unless state law gives longer

§1367(b): the diversity-only limit on plaintiffs

In a diversity-only case a plaintiff cannot use supplemental jurisdiction to sue a nondiverse Rule 14, 19, 20 or 24 party. Defendants' claims are fine.

1. Original jurisdiction rests solely on diversity (§1332)
2. The claim is asserted by a plaintiff
3. It is asserted against a person made a party under Rule 14, 19, 20 or 24
4. Exercising jurisdiction would be inconsistent with §1332

Exceptions: A defendant's counterclaim, crossclaim or impleader claim is not restricted by §1367(b) · Exxon v. Allapattah: if complete diversity exists and one plaintiff meets the amount, other plaintiffs' claims below $75,000 ride on supplemental jurisdiction · In a federal-question case, §1367(b) does not apply at all · §1367(b) also bars claims by persons proposed to be joined as plaintiffs under Rule 19, or intervening as plaintiffs under Rule 24, when that would be inconsistent with §1332

Removal: who, where, when and how

Only defendants remove, to the district embracing the state court, within 30 days of service, with every served defendant joining.

1. The action could have been brought in federal court originally
2. A defendant, not the plaintiff or a counterclaim defendant, files the notice
3. It is filed in the district embracing the place where the state action is pending
4. Every defendant properly joined and served joins or consents
5. It is filed within 30 days after that defendant is served

Exceptions: Federal-officer removal (§1442) and civil-rights removal (§1443) have their own rules · §1441(c): if a federal-question claim is joined with a claim outside federal jurisdiction, the whole action is removable and the court severs and remands the other claims · Rule 81(c)(2): after removal, a defendant answers within the longest of 21 days after receiving the pleading, 21 days after service of the summons, or 7 days after the notice of removal · If the case is not removable at the start, the 30 days run from receipt of an amended pleading, motion, order or other paper showing it has become removable (§1446(b)(3)) · A later-served defendant gets its own 30 days, and earlier-served defendants may consent to its removal (§1446(b)(2)(B)-(C)) · A party's change of domicile after filing cannot make a case removable: diversity must have existed at filing and at removal. A case does become removable later if the plaintiff voluntarily drops the nondiverse defendant (§1446(b)(3)), within one year of commencement for diversity cases (§1446(c)(1)) · Some actions can never be removed, such as a claim under a State's workers' compensation laws (§1445(c)) · Amount in controversy: the notice need contain only a plausible allegation of the amount; if the plaintiff contests it, the court decides by a preponderance of the evidence (§1446(c)(2); Dart Cherokee)

The forum-defendant rule and its limits

A diversity-only case cannot be removed if any properly joined and served defendant is a citizen of the forum State, and the plaintiff must object in time.

1. Removal rests solely on diversity jurisdiction
2. A defendant is a citizen of the State where the action was brought
3. That defendant was properly joined and served

Exceptions: Federal-question removal: the rule does not apply · The citizenship of fictitious (Doe) defendants is disregarded (§1441(b)(1)) · A procedural defect, not a jurisdictional one: waived unless the plaintiff moves to remand within 30 days after the notice of removal

Majority rule: Procedural defect: waived unless raised within 30 days of the notice of removal (§1447(c))
Minority rule: Eighth Circuit: jurisdictional, so it may be raised at any time

Remand: timing, grounds and review

No subject-matter jurisdiction: remand any time. Any other defect: move within 30 days. And a remand order can almost never be appealed.

1. A defect in subject-matter jurisdiction: remand at any time before final judgment
2. Any other defect (late notice, no unanimity, forum defendant): motion within 30 days of the notice of removal
3. A remand for lack of jurisdiction or a timely raised defect is not reviewable on appeal or otherwise (§1447(d))
4. Exception: remands in cases removed under §1442 or §1443 may be appealed

Exceptions: The court may require payment of just costs and actual expenses, including attorney's fees, incurred because of the removal · Other routes to review: a CAFA class-action remand by permission of the court of appeals (§1453(c)); a remand on a ground outside §1447(c), such as declining supplemental jurisdiction (Carlsbad Technology) · Improper (fraudulent) joinder: a nondiverse defendant against whom the plaintiff has no possible claim is disregarded for diversity · If the nondiverse party is properly dropped before judgment, the judgment stands despite an earlier wrong refusal to remand (Caterpillar v. Lewis); if it was wrongly dismissed, the defect was never cured and the judgment is vacated

Personal jurisdiction: the traditional bases

A court always has power over a person who is domiciled in the State, served there in person, consented, or waived the objection.

1. Domicile in the forum State
2. Personal service while voluntarily present in the forum State (tag jurisdiction)
3. Consent: a forum-selection clause, an agent, an appearance, or a registration statute saying so
4. Waiver by omitting the objection from the first Rule 12 response

Exceptions: Tag jurisdiction fails if the defendant was lured into the State by fraud or force · Mallory (2023): due process allows a State to treat registration to do business as consent to general jurisdiction where its statute says so; the opinions were fractured, and whether such statutes violate the dormant Commerce Clause was left open · Property in the State is only one contact: Shaffer v. Heitner applies the International Shoe standard to every assertion of jurisdiction

General jurisdiction: where the defendant is at home

General jurisdiction, for any claim, exists only where the defendant is at home: an individual's domicile, a corporation's incorporation State and headquarters.

1. Individual: the State of domicile
2. Corporation: its State of incorporation
3. Corporation: its State of principal place of business
4. Then any claim, even one that arose elsewhere

Exceptions: An exceptional case: a corporation's operations in another State may be so substantial that it is at home there (Perkins v. Benguet, where the company ran its wartime business from the forum) · Substantial in-State business is not enough (Daimler; BNSF v. Tyrrell)

Specific jurisdiction: availment, relatedness, fairness

Ask three things in order: did the defendant itself reach into the State, does the claim arise from or relate to that, and is it fair?

1. Purposeful availment: the defendant itself reached into the forum State
2. The claim arises out of or relates to those forum contacts
3. Fair play and substantial justice: burden, forum interest, plaintiff interest, efficiency, shared policies

Exceptions: Foreseeability that a product may reach the forum is not enough; the defendant must be able to anticipate being haled into court there (World-Wide Volkswagen) · The defendant's own contacts count: knowing the plaintiff lives in the forum creates none (Walden v. Fiore) · Stream of commerce: the Justices divided in Asahi over whether awareness is enough or 'something more' is needed, and Nicastro (2011) produced only a plurality requiring that the defendant target the forum State; a defendant that targets the forum market satisfies either view · 'Relates to' needs no strict causation (Ford), but nonresidents whose claims have no forum link cannot join residents' suits there (Bristol-Myers Squibb)

How far a federal summons reaches (Rule 4(k))

A federal court usually borrows its State's long-arm reach; Rule 14 and 19 parties within 100 miles, federal statutes and 4(k)(2) are the add-ons.

1. 4(k)(1)(A): defendants amenable to the courts of general jurisdiction of the State where the district court sits
2. 4(k)(1)(B): Rule 14 or 19 parties served within 100 miles of the courthouse
3. 4(k)(1)(C): defendants covered by a federal statute authorizing service
4. 4(k)(2): federal claim, no State has jurisdiction, and it is consistent with the Constitution and laws

Serving the summons and complaint (Rule 4)

A nonparty age 18 or older serves the summons with the complaint: by hand, at the defendant's home, on an agent, or by state-law method.

1. The summons is served with a copy of the complaint
2. Served by a nonparty at least 18 years old
3. Individual: hand delivery, abode service, an authorized agent, or a state-law method
4. Corporation: an officer, managing or general agent, authorized agent, or a state-law method
5. Within 90 days after the complaint is filed (Rule 4(m))

Exceptions: Abode service means leaving the papers at her dwelling or usual place of abode with someone of suitable age and discretion who resides there · Certified mail alone works only where state law allows it under Rule 4(e)(1) · Rule 4(m): after 90 days the court must dismiss without prejudice or order service by a set time; good cause requires an extension, and the court may extend without it (Henderson) · Abroad (Rule 4(f)): an internationally agreed means such as the Hague Service Convention, or another method the rule allows; Rule 4(h)(2) uses the same methods for a foreign-served corporation, except personal delivery

Waiver of service (Rule 4(d))

Waiving service buys time, not defenses: 30 days to return the form, 60 days from the request to answer, and personal-jurisdiction and venue objections survive.

1. The plaintiff sends a written request with the complaint, two copies of the waiver form and a prepaid means of return
2. The defendant has at least 30 days from the date sent to return it (60 if abroad)
3. A returned waiver gives 60 days from the date the request was sent to answer (90 if abroad)
4. Waiver gives up only service objections, not personal jurisdiction or venue

Exceptions: A defendant in the United States who refuses to waive without good cause must pay the later expenses of service

Constitutional notice (Mullane)

Due process asks for notice reasonably calculated, under all the circumstances, to reach the parties and let them object: mail for known addresses.

1. Notice is reasonably calculated, under all the circumstances
2. to apprise the interested parties of the action
3. and to afford them an opportunity to present their objections

Exceptions: Publication may suffice for beneficiaries or claimants who cannot be located with due diligence · If mailed notice comes back unclaimed, the State must take additional reasonable steps to give notice when it is practicable (Jones v. Flowers)

The waivable Rule 12(b) defenses: 2, 3, 4, 5

Personal jurisdiction, venue, process, service: omit one from your first Rule 12 motion, or the answer, and it is gone. Subject-matter jurisdiction never is.

1. 12(b)(2) lack of personal jurisdiction
2. 12(b)(3) improper venue
3. 12(b)(4) insufficient process
4. 12(b)(5) insufficient service of process

Exceptions: 12(b)(1) lack of subject-matter jurisdiction: never waived; raise it at any time (12(h)(3)) · 12(b)(6) failure to state a claim and 12(b)(7) failure to join a Rule 19 party: preserved through trial (12(h)(2)) · A party that makes a Rule 12 motion must join every available 12(b)(2)-(5) defense in it (12(g)(2)) · A defense left out of the answer (with no earlier Rule 12 motion) can still be added by amending the answer once as a matter of course within 21 days (12(h)(1)(B)(ii); 15(a)(1))

Where a civil action may be brought (§1391(b))

Three routes: all defendants live in one State; the events or property are there; or, only if neither works, any district with personal jurisdiction.

1. (b)(1): a district where any defendant resides, if all defendants reside in that State
2. (b)(2): a district where a substantial part of the events or omissions occurred, or of the property is located
3. (b)(3): only if no district qualifies, any district where a defendant is subject to personal jurisdiction

Exceptions: Venue is statutory, not jurisdictional: an objection is waived if omitted from the first Rule 12 response · Several districts may satisfy (b)(2): there is no 'best' venue

Where a party 'resides' for venue (§1391(c))

Individuals reside where domiciled. A defendant entity resides wherever it can be sued on this claim; a plaintiff entity only at its headquarters.

1. Natural person: the district of her domicile
2. Defendant entity: any district where it is subject to personal jurisdiction for this action
3. Plaintiff entity: only the district of its principal place of business
4. Defendant not resident in the United States: any district

Exceptions: In a State with several districts, a corporate defendant is deemed to reside in any district where its contacts would suffice for jurisdiction if the district were a separate State (§1391(d)) · A foreign defendant's joinder is disregarded in applying (b)(1)-(3) to the other defendants

Convenience transfer: §1404(a) and 'might have been brought'

A court may transfer a case for convenience to a district where it might have been brought, or to which all parties consent.

1. The transferee district is one where the action might have been brought, or all parties have consented
2. Transfer serves the convenience of parties and witnesses
3. Transfer is in the interest of justice

Exceptions: 'Might have been brought' is judged as of the time of filing: a defendant's later waiver of venue or jurisdiction objections does not satisfy it (Hoffman v. Blaski) · Private factors (access to proof, witnesses, cost) and public factors (congestion, local interest) are weighed; the plaintiff's choice gets weight but is not controlling · A valid forum-selection clause controls, and the plaintiff's choice gets no weight (Atlantic Marine)

Which law follows a transfer?

A convenience transfer carries the old court's choice-of-law rules along; a wrong-venue transfer or a forum-selection-clause transfer does not.

1. §1404(a) transfer: the transferee applies the choice-of-law rules the transferor State would have applied
2. That is so even when the plaintiff asked for the transfer (Ferens)
3. §1406(a) transfer (wrong venue, or lack of personal jurisdiction): the transferee applies its own State's rules
4. Forum-selection-clause transfer (Atlantic Marine): the transferee applies its own State's rules

Exceptions: A §1406(a) transfer is available even when the transferor court lacks personal jurisdiction over the defendant (Goldlawr)

Forum non conveniens

When another forum outside the federal system is far better, the court dismisses (it cannot transfer); a less favorable law abroad is not enough to defeat that.

1. Venue is proper here (the court may skip contested jurisdiction questions: Sinochem)
2. An adequate alternative forum exists (a foreign country or a State court)
3. Private-interest factors favor the alternative forum
4. Public-interest factors favor the alternative forum
5. The remedy is dismissal, often on conditions, not transfer

Exceptions: A foreign plaintiff's choice of a US forum gets less deference · A court may dismiss on forum non conveniens before deciding subject-matter or personal jurisdiction (Sinochem) · A valid forum-selection clause naming a state or foreign court is enforced by forum non conveniens dismissal; the plaintiff's choice and the private factors then get no weight (Atlantic Marine)

A valid Federal Rule on point beats state law (Hanna, Shady Grove)

If a Federal Rule is broad enough to answer the question and is valid under the Rules Enabling Act, it controls; the Erie outcome test is never reached.

1. A federal constitutional provision, statute or Federal Rule is on point
2. It is valid: it really regulates procedure and does not abridge, enlarge or modify a substantive right
3. It applies, and the conflicting state rule yields

Exceptions: Shady Grove: Rule 23 governs whether a suit may proceed as a class action, so a State ban on class actions for statutory penalties does not apply in federal court · No Federal Rule on point: apply the twin-aims test (Hanna), then ask whether a countervailing federal interest, such as jury trial, outweighs the state rule (Byrd)

What state law governs in a diversity case (Erie, York, Klaxon)

In diversity, state law supplies the claim, the limitations period and the forum State's choice-of-law rules; the Federal Rules supply procedure.

1. Elements of state-law claims and defenses
2. Statutes of limitations and tolling rules
3. Burdens of proof
4. The forum State's choice-of-law rules (Klaxon)
5. The State's standard for an excessive verdict (Gasperini)

Exceptions: A valid Federal Rule on point displaces a state rule even if the state rule is substantive (Hanna) · The right to a jury trial is governed by federal law (Byrd)

When the state high court has not spoken

Follow the State's highest court. If it has not ruled, predict what it would do, giving real weight to intermediate courts but not treating them as binding.

1. Follow the State's highest court where it has decided the point
2. If it has not, predict how that court would rule
3. Treat intermediate appellate decisions as strong evidence
4. Follow them unless persuasive data show the high court would decide otherwise

Exceptions: Where the State allows it, the federal court may certify the question to the State's highest court

Federal common law: the narrow enclaves

After Erie there is no general federal common law, only enclaves: the United States' own paper, interstate disputes, admiralty, foreign relations.

1. Rights and obligations of the United States (Clearfield Trust)
2. Disputes between States
3. Admiralty and maritime law
4. Foreign relations and the act-of-state doctrine

Exceptions: Courts may borrow state law as the federal rule where no federal interest requires uniformity (Kimbell Foods) · Courts do not create private rights of action where Congress has legislated (Texas Industries)

Pleading a claim: plausibility, not labels

A complaint needs facts that make the claim plausible; labels, conclusions and a bare recital of the elements do not count.

1. A short and plain statement of the grounds for jurisdiction
2. A short and plain statement showing entitlement to relief, with facts that make the claim plausible
3. A demand for the relief sought

Exceptions: Fraud or mistake: plead the circumstances with particularity (Rule 9(b)); malice, intent and knowledge may be alleged generally · Labels, conclusions and formulaic recitals of the elements are not accepted as true (Iqbal) · Parallel conduct alone does not plausibly show an agreement (Twombly) · Alternative and inconsistent claims may be pleaded (Rule 8(d)(2)-(3)); the old 'no set of facts' test is retired

Answering: denials and affirmative defenses (Rule 8(b)-(c))

Deny what you dispute or the allegation is admitted; plead each affirmative defense in the answer or lose it unless the court allows an amendment.

1. Admit or deny each allegation; lack of knowledge counts as a denial
2. An allegation that needs a response and is not denied is admitted (except the amount of damages)
3. State each affirmative defense in the answer
4. A defense not pleaded is forfeited unless the court allows an amendment

Exceptions: Rule 8(c) lists, among others: statute of limitations, statute of frauds, res judicata, release, payment, estoppel, laches, waiver, contributory negligence, assumption of risk, accord and satisfaction · A denial that the plaintiff can prove an element is not an affirmative defense; the plaintiff keeps the burden · A defense mislabeled as a counterclaim, or the reverse, is treated as properly designated if justice requires

Amending a pleading (Rule 15(a))

Amend once as of course within 21 days; after that you need the other side's written consent or the court's leave, freely given.

1. Once as of course within 21 days after serving the pleading
2. Or within 21 days after service of a responsive pleading or a Rule 12(b), (e) or (f) motion, whichever is earlier
3. Otherwise: the opposing party's written consent or the court's leave
4. Leave is freely given when justice so requires

Exceptions: After a scheduling-order deadline to amend, most courts require Rule 16(b)(4) good cause before Rule 15(a)(2) (majority view) · Issues tried by consent are treated as pleaded; a motion to conform to the evidence may be made at any time, even after judgment (Rule 15(b)) · A supplemental pleading about later events needs a motion and reasonable notice (Rule 15(d))

Relation back of an amendment (Rule 15(c))

Same conduct relates back to the original filing date; a new defendant also needs notice within the Rule 4(m) period and a mistake about identity.

1. The amendment arises from the same conduct, transaction, or occurrence as the original pleading
2. A new defendant received notice of the action within the Rule 4(m) period, enough to avoid prejudice
3. It knew or should have known it would have been sued but for a mistake about the proper party's identity

Exceptions: An amendment also relates back whenever the law that supplies the limitations period allows it (Rule 15(c)(1)(A)) · Krupski: the question is what the new defendant knew or should have known, not what the plaintiff knew or whether she was careless · Notice must come within the Rule 4(m) period: 90 days after the complaint was filed, plus any extension

Rule 11(b): the four certifications

Signing, filing or later advocating a paper certifies, after reasonable inquiry: proper purpose, warranted law, evidentiary support, warranted denials.

1. Not presented for an improper purpose such as harassment or delay
2. Legal contentions are warranted by existing law or a nonfrivolous argument to change it
3. Factual contentions have evidentiary support, or will likely have it after discovery if so identified
4. Denials of fact are warranted on the evidence or reasonably based on belief or lack of information

Exceptions: The duty attaches when a lawyer or unrepresented party signs, files, submits, or later advocates the paper · The test is an inquiry reasonable under the circumstances · Rule 11 does not reach disclosures or discovery requests, responses, objections, or motions under Rules 26 through 37 · Those are governed by Rule 26(g) and Rule 37

Rule 11 sanctions: the 21-day safe harbor

Serve the sanctions motion but do not file it for 21 days; withdraw or correct the paper in that time and the motion dies.

1. Make the motion separately from any other motion
2. Serve it on the other side without filing it
3. Wait 21 days; if the paper is withdrawn or corrected, never file it
4. Otherwise file it; the court may impose what suffices to deter repetition

Exceptions: The court may act on its own by an order to show cause: no safe harbor · No monetary sanction against a represented party for a violation of Rule 11(b)(2) (legal contentions) · A court acting on its own may not impose a monetary sanction unless it issued the show-cause order before a voluntary dismissal or settlement · A law firm is jointly responsible for its lawyer's violation absent exceptional circumstances · If warranted, the court may award the prevailing party the reasonable expenses, including fees, incurred for the motion (11(c)(2)); a sanction on motion may include fees that directly result from the violation, when warranted for effective deterrence (11(c)(4))

Joining claims and parties (Rules 18, 20, 21, 42)

Claims: join any against an opposing party. Parties: same transaction or series plus a common question; misjoinder is cured by severing.

1. Rule 18: a party may join any claims it has against an opposing party, related or not
2. Rule 20: parties may be joined if the claims arise from the same transaction, occurrence, or series
3. and a question of law or fact common to all parties will arise

Exceptions: Misjoinder is not a ground for dismissing an action; the court may add or drop a party or sever a claim (Rule 21) · Rule 18 opens the door only to claims against a party who is already an opposing party · The court may consolidate actions with a common question (Rule 42(a)) or order separate trials (Rule 42(b)) · Each added claim still needs subject-matter jurisdiction, often supplemental under 28 U.S.C. §1367

Counterclaims and crossclaims (Rule 13)

Same transaction as the opposing party's claim: counterclaim now or lose it. Crossclaims against a coparty are always optional.

1. Compulsory counterclaim: arises from the transaction or occurrence that is the subject of the opposing party's claim
2. A compulsory counterclaim must be pleaded or it is barred later
3. Permissive counterclaim: any other claim against an opposing party
4. Crossclaim: a claim against a coparty from the same transaction; always optional

Exceptions: A claim already the subject of another pending action is not compulsory · A compulsory counterclaim falls within supplemental jurisdiction and needs no independent federal basis (28 U.S.C. §1367(a)) · A counterclaim need not reduce the opposing party's recovery; it may seek more than the opposing party's claim · Rule 13(h): Rules 19 and 20 govern adding parties to a counterclaim or crossclaim

Impleader (Rule 14)

A defendant may implead a nonparty who is or may be liable to it for all or part of the plaintiff's claim: 'he owes me what I owe her', not 'he did it'.

1. A defending party serves a third-party complaint on a nonparty
2. The nonparty is or may be liable to the defendant for all or part of the plaintiff's claim
3. Without leave if filed within 14 days after serving the original answer; otherwise with leave

Exceptions: Derivative liability only: indemnity, contribution, subrogation, or warranty · 'Someone else was solely at fault' is a defense to the plaintiff's claim, not a ground for impleader · The third-party claim falls within supplemental jurisdiction; in a diversity case 28 U.S.C. §1367(b) bars the plaintiff's own claim against the third-party defendant unless it has independent jurisdiction · The third-party defendant may assert against the plaintiff any defense the defendant has to the plaintiff's claim

Required parties (Rule 19)

Is the absentee required? Can joinder happen? If not, in equity and good conscience: proceed, or dismiss without prejudice.

1. Is the absentee required? (complete relief, impaired interest, or a risk of multiple or inconsistent obligations)
2. Is joinder feasible? (service of process, subject-matter jurisdiction, venue)
3. If feasible: the court orders the absentee joined
4. If not feasible: weigh the Rule 19(b) factors, in equity and good conscience
5. Proceed without the absentee, or dismiss without prejudice

Exceptions: Rule 19(b) factors: prejudice to anyone, whether the relief can be shaped to lessen it, whether a judgment would be adequate, and whether the plaintiff has an adequate remedy if the action is dismissed · Joint tortfeasors are not required parties merely because they are jointly and severally liable (Temple v. Synthes) · A Rule 19 dismissal is not an adjudication on the merits (Rule 41(b)) · Failure to join under Rule 12(b)(7) is not waived by omission (Rule 12(h)(2))

Intervention (Rule 24)

A timely nonparty with an impairable, inadequately represented interest intervenes of right; with a common question it may intervene by permission.

1. The motion is timely
2. Of right: a statutory right, or an impairable interest in the subject that the parties do not adequately represent
3. By permission: a claim or defense that shares a common question of law or fact with the action
4. The motion is accompanied by a pleading stating the claim or defense

Exceptions: For permissive intervention the court must consider undue delay or prejudice to the original parties · In a diversity case, 28 U.S.C. §1367(b) limits supplemental jurisdiction over claims by plaintiffs who intervene under Rule 24 · Government officers or agencies may intervene permissively when a claim rests on a statute they administer

Interpleader (Rule 22 and 28 U.S.C. §1335)

A stakeholder facing rival claims to one fund may join the claimants in one action; the statute needs only two diverse claimants and $500.

1. A stakeholder holds money or property that rival claimants claim
2. The claims may expose the stakeholder to double or multiple liability
3. Rule 22: ordinary jurisdiction rules apply, such as diversity between the stakeholder and each claimant
4. Statute (§1335): two or more adverse claimants of diverse citizenship, a fund of $500 or more, deposited with the court

Exceptions: Rule 22 interpleader needs an independent basis: for diversity, complete diversity between the stakeholder and every claimant and more than $75,000 · Statutory interpleader needs only minimal diversity between two adverse claimants; the stakeholder's citizenship does not matter · The claims need not have a common origin, and the stakeholder may deny liability in whole or in part (Rule 22(a)(1)) · A defendant exposed to similar claims may use Rule 22 by counterclaim or crossclaim (Rule 22(a)(2)) · In statutory interpleader the court may serve claimants anywhere in the country and restrain other proceedings (28 U.S.C. §2361)

Class actions: the four Rule 23(a) prerequisites

A class needs numerosity, commonality, typicality and adequacy first; only then do you pick a Rule 23(b) type.

1. Numerosity: joinder of all members is impracticable
2. Commonality: a common contention capable of classwide resolution
3. Typicality: the representatives' claims or defenses are typical of the class
4. Adequacy: the representative parties will fairly and adequately protect the class's interests

Exceptions: Wal-Mart v. Dukes: the common contention must be one whose truth or falsity resolves an issue central to every claim in one stroke · No fixed number satisfies numerosity; the question is whether joinder is practicable · For diversity jurisdiction, the citizenship of the named representatives counts, not that of absent members (CAFA aside) · Predominance and superiority belong to Rule 23(b)(3), not to Rule 23(a) · Class counsel's adequacy is a separate requirement, decided when the court appoints counsel under Rule 23(g); Rule 23(a)(4) looks at the representative parties

Class actions: choosing a Rule 23(b) type

(b)(1) avoids inconsistent standards, (b)(2) means classwide injunction, (b)(3) means money with predominance, superiority, notice and opt-out.

1. (b)(1): separate actions would risk inconsistent standards or impair other members' interests
2. (b)(2): the defendant acted on grounds that apply to the class generally, so a classwide injunction fits
3. (b)(3): common questions predominate and a class action is superior
4. (b)(3) only: the best practicable notice, including individual notice to identifiable members, with a right to opt out

Exceptions: Individualized money awards do not fit (b)(2) (Wal-Mart v. Dukes) · The rule does not require notice or an opt-out right for a (b)(1) or (b)(2) class · Settlement or voluntary dismissal of a class needs court approval after notice, on a finding that the settlement is fair, reasonable, and adequate (Rule 23(e)) · A court order granting or denying class certification is reviewable only by permission, on a petition filed within 14 days (Rule 23(f)); 45 days if the United States, a federal agency, or a federal officer sued for official acts is a party · The court must decide certification at an early practicable time, and may alter or amend the order before final judgment (Rule 23(c)(1)) · Predominance is more demanding than commonality (Amchem), and the damages model must measure only the damages that flow from the theory of liability (Comcast)

Scope of discovery (Rule 26(b)(1))

Discoverable means nonprivileged, relevant to a claim or defense, and proportional to the needs of the case; admissibility is not required.

1. Nonprivileged matter
2. Relevant to any party's claim or defense
3. Proportional to the needs of the case

Exceptions: Information need not be admissible in evidence to be discoverable · Proportionality: importance of the issues, amount in controversy, access to the information, resources, importance of the discovery, burden versus benefit · Electronically stored information that is not reasonably accessible: the responding party must show undue burden or cost, and the court may still order it for good cause · For good cause and after a good-faith conferral, a court may issue a protective order (Rule 26(c))

Timing: the Rule 26(f) conference and initial disclosures

No discovery before the Rule 26(f) conference; disclosures follow 14 days after it; undisclosed witnesses and documents may be barred.

1. No discovery from any source before the Rule 26(f) conference
2. The conference takes place at least 21 days before the scheduling conference or order is due
3. The report to the court is due within 14 days after the conference
4. Initial disclosures are due 14 days after the conference

Exceptions: Exceptions: exempt proceedings, a stipulation, or a court order · Early Rule 34 requests may be delivered more than 21 days after service of the summons and complaint; they are treated as served at the first conference · Failure to disclose or supplement bars use of the information at trial unless substantially justified or harmless (Rule 37(c)(1)) · Experts: disclose at least 90 days before trial (rebuttal 30 days after the other side); pretrial disclosures at least 30 days before trial

Work product, experts and privilege claims (Rule 26(b)(3)-(5))

Trial-prep material is discoverable only on substantial need and undue hardship; a lawyer's mental impressions are protected far more strongly.

1. Prepared in anticipation of litigation by or for a party or its representative
2. Ordinary work product: discoverable on substantial need and no equivalent without undue hardship
3. Opinion work product (mental impressions, conclusions, legal theories): protected far more strongly
4. Withholding requires an express claim and a description that lets others assess it

Exceptions: A party may obtain his own earlier statement on request · A testifying expert gives a report; drafts and most lawyer-expert communications are protected · A consulting expert is discoverable only on exceptional circumstances · Clawback: after notice of a claim, the receiver must return, sequester or destroy the material and not use it until the claim is resolved · The Rule 26(f) plan and scheduling order may address the timing and method of privilege logs (amended Dec. 1, 2025)

The discovery tools and their limits (10-7-25)

Ten depositions per side, seven hours each, 25 interrogatories; requests to parties get 30 days, silence on admissions is admission, nonparties need a subpoena.

1. Depositions: 10 per side, one day of 7 hours each
2. Interrogatories: 25 including discrete subparts, to parties only, answered in 30 days
3. Requests for production and for admission: to parties, answered in 30 days
4. Nonparties: a Rule 45 subpoena, with compliance within 100 miles

Exceptions: More than 10 depositions, or a second deposition of the same person, needs a stipulation or leave · A request for admission not answered or objected to in 30 days is admitted and conclusively established unless the court allows withdrawal · Rule 35 examination: motion, good cause, and a physical or mental condition in controversy · A Rule 30(b)(6) organization designates the person to testify to information known or reasonably available to it · A deponent may review and change the transcript within 30 days, if requested before the deposition ends

Discovery sanctions and lost ESI (Rules 26(g) and 37)

Confer, then move to compel; the loser pays unless justified; lost electronic data earns an adverse inference only on intent to deprive.

1. Confer in good faith, then move to compel (Rule 37(a))
2. If granted, the court must award expenses unless the position was justified or an award would be unjust
3. Violating a discovery order opens the Rule 37(b) menu of sanctions
4. Lost ESI: curative measures on prejudice; an adverse inference or default only on intent to deprive

Exceptions: Negligence, even gross negligence, cannot support an adverse-inference instruction for lost ESI (37(e)(2)) · Failure to attend one's own deposition or to serve any response to interrogatories permits sanctions without a prior order (37(d)) · Signing a discovery paper certifies a reasonable inquiry; a violation requires an appropriate sanction (26(g)) · A party that fails to disclose may not use the information unless the failure was substantially justified or harmless (37(c)(1))

Pretrial conferences and orders (Rule 16)

A scheduling order issues early and bends only for good cause; the final pretrial order controls the trial and bends only to prevent manifest injustice.

1. Issued by the earlier of 90 days after service or 60 days after a defendant appears
2. It limits the time to join parties, amend pleadings, complete discovery, and file motions
3. It may be modified only for good cause and with the judge's consent
4. The final pretrial order controls the course of the trial and is modified only to prevent manifest injustice

Exceptions: After a scheduling-order deadline to amend, most courts require Rule 16(b)(4) good cause first, and then Rule 15(a)(2) (majority view) · Rule 16(f) sanctions: failing to appear, being substantially unprepared, or disobeying an order · Attorneys at a conference must be authorized to make stipulations and admissions

Preliminary injunctions and temporary restraining orders (Rule 65)

A preliminary injunction needs notice, security and the four Winter factors; a TRO without notice lasts at most 14 days.

1. Likelihood of success on the merits
2. Likelihood of irreparable harm without preliminary relief
3. The balance of equities tips in the movant's favor
4. An injunction is in the public interest

Exceptions: A preliminary injunction requires notice to the adverse party, and the movant must give security in an amount the court considers proper · A TRO without notice needs specific facts showing immediate irreparable injury and the movant's lawyer's written certification of efforts to give notice · A TRO without notice expires by its terms within 14 days; the court may extend it for a like period for good cause, or longer if the adverse party consents · The order binds the parties, their officers, agents, servants, employees and attorneys, and others in active concert who receive actual notice · An order granting or refusing a preliminary injunction is appealable now (28 U.S.C. §1292(a)(1)); a TRO generally is not

Dismissing without a trial (Rule 41)

A plaintiff dismisses by notice until the defendant serves an answer or a summary-judgment motion; a second notice dismissal is on the merits.

1. File a notice of dismissal before the opposing party serves an answer or a summary-judgment motion
2. A Rule 12(b) motion does not cut off the right to dismiss by notice
3. The dismissal is without prejudice unless the notice says otherwise
4. Two-dismissal rule: a second notice dismissal of the same claim is an adjudication on the merits

Exceptions: A stipulation signed by all parties who have appeared may be filed at any time (Rule 41(a)(1)(A)(ii)); otherwise dismissal needs a court order on terms the court considers proper (Rule 41(a)(2)), without prejudice unless stated · The two-dismissal rule counts a prior dismissal of any federal or state action based on or including the same claim · Rule 41(b): involuntary dismissal operates as an adjudication on the merits, except for lack of jurisdiction, improper venue, or failure to join a Rule 19 party · Class actions need court approval to be dismissed (Rule 23(e))

Offers of judgment (Rule 68)

Only a defendant may make a Rule 68 offer; refuse it and win less, and you pay the defendant's post-offer costs, not fees.

1. A defending party serves an offer to allow judgment on specified terms
2. Serve it at least 14 days before the trial date
3. The offeree has 14 days to accept in writing
4. If the final judgment is not more favorable than the offer, the offeree pays the costs incurred after the offer

Exceptions: Costs, not attorney's fees, unless the underlying statute defines costs to include fees (Marek v. Chesny) · Rule 68 does not apply if the defendant wins at trial (Delta Air Lines v. August) · An unaccepted offer is deemed withdrawn and is inadmissible except to determine costs

Rule 12 defenses: what is waived and what survives

Personal jurisdiction, venue, process and service are lost if omitted from your first Rule 12 move; claim and party defects survive; subject matter never dies.

1. 12(b)(2)-(5): waived if left out of the first Rule 12 motion or the answer
2. 12(b)(6) and (7): preserved until trial or a Rule 12(c) motion
3. 12(b)(1): subject-matter jurisdiction is never waived
4. One Rule 12 motion: raise every available (b)(2)-(5) defense together

Exceptions: A pending Rule 12 motion pauses the answer deadline; the answer is due 14 days after notice of the court's ruling (Rule 12(a)(4)) · The court must dismiss whenever it finds it lacks subject-matter jurisdiction (Rule 12(h)(3)) · Waiver of service under Rule 4(d) does not waive objections to personal jurisdiction or venue · A second Rule 12 motion may not raise a defense that was available but omitted, except under Rule 12(h)(2)-(3)

Motions on the pleadings: 12(b)(6), 12(c), and conversion under 12(d)

A 12(b)(6) motion tests the complaint alone; bring in outside evidence the court does not exclude and it becomes summary judgment.

1. Accept well-pleaded facts as true and draw reasonable inferences for the pleader
2. Disregard legal conclusions and labels
3. Ask whether the complaint states a plausible claim for relief
4. Consider the complaint, attached or incorporated documents, and matters subject to judicial notice
5. If other matters are presented and not excluded, treat the motion as one for summary judgment

Exceptions: After conversion, all parties must be given a reasonable opportunity to present all pertinent material (Rule 12(d)) · Rule 12(c): judgment on the pleadings after the pleadings are closed, but early enough not to delay trial; the same standard · A Rule 12(b)(6) dismissal is on the merits; dismissal for jurisdiction, venue or a Rule 19 party is not · Rule 12(e) more definite statement: before filing a responsive pleading. Rule 12(f) strike: before responding, or within 21 days after service if no response is allowed, or by the court on its own

Summary judgment (Rule 56)

Summary judgment asks one question: could a reasonable jury find for the other side? If not, and the law favors the movant, the court grants it.

1. The movant shows no genuine dispute as to any material fact
2. The movant is entitled to judgment as a matter of law
3. The court views the evidence and draws inferences for the nonmovant, without weighing credibility

Exceptions: Celotex: a movant that will not bear the burden at trial may point to the absence of evidence; the nonmovant must then cite specific facts · Anderson v. Liberty Lobby: a dispute is genuine if a reasonable jury could return a verdict for the nonmovant · Scott v. Harris: a version of events blatantly contradicted by an unchallenged video need not be credited · Rule 56(d): if the nonmovant cannot yet present essential facts, the court may defer or deny the motion or allow discovery · A party may move any time until 30 days after the close of all discovery, unless the court sets another time

Judgment as a matter of law: Rule 50(a) then 50(b)

Move under Rule 50(a) before the case goes to the jury; renew under 50(b) within 28 days; the judge never weighs evidence on either.

1. Move under Rule 50(a) after the opposing party has been fully heard and before the case goes to the jury
2. The test: no legally sufficient evidentiary basis for a reasonable jury to find for that party
3. The court does not weigh evidence or judge credibility
4. If denied, renew under Rule 50(b) within 28 days after entry of judgment
5. The renewed motion is limited to grounds raised in the Rule 50(a) motion

Exceptions: No Rule 50(a) motion before submission: no Rule 50(b) renewal · A party that does not renew its motion under Rule 50(b) after the verdict cannot obtain, on appeal, judgment as a matter of law or a new trial for insufficient evidence (Unitherm) · The 28 days cannot be extended (Rule 6(b)(2)) · A Rule 50(b) motion may include an alternative request for a new trial; a court granting it must conditionally rule on a new trial (Rule 50(c))

New trial and altering the judgment (Rules 59 and 52(b))

A Rule 59 motion within 28 days can win a new trial on the weight of the evidence; remittitur with a new-trial option is fine, additur never.

1. Grounds: verdict against the clear weight of the evidence, bad damages, prejudicial error, misconduct, new evidence
2. Motion within 28 days after entry of judgment
3. The judge may weigh the evidence and assess credibility
4. Remittitur: reduce the award, with a new trial as the plaintiff's alternative

Exceptions: Additur is unconstitutional in federal court (Dimick v. Schiedt) · Remittitur must offer the plaintiff a new trial as the alternative (Hetzel v. Prince William County) · A motion to alter or amend a judgment (Rule 59(e)) and a motion to amend findings (Rule 52(b)) have the same 28 days · A timely Rule 50(b), 52(b) or 59 motion restarts the time to appeal

Computing time (Rule 6)

Skip the trigger day, count every calendar day, and if the last day is a weekend or legal holiday, run to the next day that is not.

1. Exclude the day of the event that triggers the period
2. Count every day, including Saturdays, Sundays, and legal holidays
3. Include the last day of the period
4. If the last day is a Saturday, Sunday, or legal holiday, the period runs until the end of the next day that is not

Exceptions: Rule 6(d): 3 days are added after a period measured from service when service is by mail, by leaving the paper with the clerk, or by other means the recipient consented to; electronic service adds nothing · Rule 6(b)(2): the court may not extend the time to act under Rules 50(b) and (d), 52(b), 59(b), (d) and (e), and 60(b) · For electronic filing, the last day ends at midnight in the court's time zone

Relief from a judgment (Rule 60(b))

Rule 60(b) has six grounds; the first three expire in one year, all must be sought within a reasonable time, and (b)(6) is the extraordinary leftover.

1. (1) Mistake, inadvertence, surprise, or excusable neglect
2. (2) Newly discovered evidence that could not have been found in time for a Rule 59(b) motion
3. (3) Fraud, misrepresentation, or misconduct by an opposing party
4. (4) The judgment is void
5. (5) The judgment is satisfied, released, or no longer equitable
6. (6) Any other reason that justifies relief

Exceptions: Time: within a reasonable time, and for grounds (1), (2) and (3) no more than 1 year after entry of the judgment · Rule 60(b)(6) is for extraordinary circumstances and is not available when the reason fits (1) through (5) · Rule 60(a) lets the court correct clerical mistakes at any time · An independent action, or setting aside a judgment for fraud on the court, is not subject to the one-year limit (Rule 60(d)) · Every Rule 60(b) motion, including one claiming the judgment is void, must be made within a reasonable time (Rule 60(c)(1)); only grounds (1) through (3) also carry the one-year cap

The right to a jury (Seventh Amendment, Rules 38 and 39)

Damages claims get a jury, equity gets the judge; shared legal issues go to the jury first; demand it within 14 days of the last pleading or lose it.

1. A legal claim or legal issue (damages): the jury right applies in federal court
2. An equitable claim (injunction, specific performance): no jury right
3. Legal and equitable claims sharing an issue: the jury decides the legal issue first
4. Written demand within 14 days after the last pleading directed to the issue is served
5. No timely demand: waived, though the court may order a jury on motion (Rule 39(b))

Exceptions: The Seventh Amendment jury right applies in federal court only; it is not incorporated against the States · SEC v. Jarkesy (2024): a suit for civil penalties for securities fraud is legal in nature and requires a jury · A declaratory-judgment action takes the character of the coercive claim it replaces · A demand on specified issues lets any other party demand other issues within 14 days · A proper demand may be withdrawn only with the consent of the parties

Jury composition, challenges, and instruction objections

Six to twelve jurors, unanimous unless stipulated; three peremptories each, none by race or sex; object to an instruction on the record or get plain error only.

1. 6 to 12 jurors, and a unanimous verdict unless the parties stipulate otherwise
2. Three peremptory challenges per party; challenges for cause are unlimited
3. No race- or sex-based peremptory strikes, in civil cases too
4. Object to an instruction on the record, stating the matter and grounds, at the opportunity the court gives
5. An unpreserved instruction error gets plain-error review only

Exceptions: To challenge a refused instruction: request it and object, unless the court made a definitive ruling on the record rejecting the request (Rule 51(d)(1)(B)) · Multiple parties on a side may be treated as a single party for peremptory challenges (28 U.S.C. §1870) · A six-person civil jury is constitutional (Colgrove v. Battin) · On request the court must poll the jury (Rule 48(c)) · Rule 51 wording: the court gives an opportunity to object on the record before the instructions and arguments are delivered (51(b)(2)); a party not told of an instruction in advance objects promptly after learning of it (51(c)(2)(B)). The phrase 'before the jury retires' is not the current text

Verdict forms and bench findings (Rules 49 and 52)

If consistent answers conflict with the general verdict, the court may enter judgment on them, send the jury back, or order a new trial.

1. General verdict: the jury finds for a party
2. Special verdict: written answers to questions of fact
3. General verdict with answers: if they conflict, judgment on the answers, return the jury, or a new trial
4. Bench trial: the court finds the facts specially and states conclusions of law separately
5. Findings of fact are set aside only if clearly erroneous

Exceptions: If the answers are inconsistent with one another and with the verdict, no judgment: the jury is returned or a new trial ordered (Rule 49(b)(4)) · A party that does not demand submission of an issue omitted from a special verdict waives a jury on it (Rule 49(a)(3)) · A motion to amend or add findings is due within 28 days (Rule 52(b)) · On partial findings in a bench trial, the court may enter judgment once a party has been fully heard (Rule 52(c))

Default and default judgment (Rules 55 and 54(c))

The clerk enters default; the clerk enters judgment only for a sum certain against a nonappearing adult; and judgment can never exceed the demand.

1. The defendant fails to plead or otherwise defend: the clerk enters default
2. Default judgment: by the clerk for a sum certain against an adult who has not appeared
3. Otherwise the court enters it; a party who has appeared gets written notice at least 7 days before the hearing
4. The judgment may not exceed in amount or differ in kind from what the pleading demanded

Exceptions: An entry of default may be set aside for good cause; a final default judgment only under Rule 60(b) · Default admits well-pleaded allegations of liability but not the amount of damages · A default judgment is on the merits for claim preclusion, but issues are generally not 'actually litigated' for issue preclusion · Other final judgments grant the relief a party is entitled to even if it was not demanded (Rule 54(c))

Claim preclusion (res judicata)

A valid final judgment on the merits bars the same parties and privies from suing again on the same transaction, including claims they could have raised.

1. A valid final judgment on the merits in the first action
2. The same claim in the second action: the same transaction, including claims that could have been raised
3. The same parties or their privies

Exceptions: On the merits: trial, summary judgment, Rule 12(b)(6) dismissal, default judgment, Rule 41(b) dismissal, and a second notice dismissal · Not on the merits: dismissal for lack of jurisdiction, improper venue, or failure to join a Rule 19 party; a first notice dismissal · A compulsory counterclaim not pleaded is barred later · Claims based on events after the first complaint was filed are generally not barred (Lucky Brand Dungarees v. Marcel Fashions Group, 2020) · Effect of a judgment elsewhere: a state judgment in federal court gets the rendering State's preclusion law (28 U.S.C. §1738); a federal diversity judgment gets the law of the State where the federal court sits (Semtek)

Issue preclusion (collateral estoppel)

An issue actually litigated and necessarily decided binds the loser in later suits; nonmutual defensive use is allowed, offensive use is the judge's call.

1. The issue is identical to one decided in the first action
2. It was actually litigated and determined
3. Its determination was essential to the judgment
4. There is a valid and final judgment
5. The party to be bound had a full and fair opportunity to litigate

Exceptions: Defensive nonmutual use is allowed (Blonder-Tongue) · Offensive nonmutual use is discretionary: a wait-and-see plaintiff, small stakes in the first suit when later suits were not foreseeable, inconsistent judgments, or new procedures all weigh against it (Parklane) · No offensive nonmutual issue preclusion against the United States (Mendoza) · A nonparty is bound only by agreement, a preexisting legal relationship, adequate representation, control, proxy, or a special statutory scheme, not 'virtual representation' (Taylor v. Sturgell) · A criminal acquittal does not bind a civil plaintiff, because the burden of persuasion differs

Appeals: the final-judgment rule

Appeal only from a final decision, within 30 days (60 if the United States is a party); a timely post-trial motion restarts the clock.

1. The order is a final decision that ends the case on the merits as to all claims and parties
2. Notice of appeal within 30 days after entry of judgment (60 if the United States is a party)
3. A timely Rule 50(b), 52(b) or 59 motion restarts the period from the order disposing of it
4. An order resolving fewer than all claims or parties is not final without a Rule 54(b) determination

Exceptions: Denials of motions to dismiss, denials of summary judgment, discovery rulings and transfer orders wait for final judgment · Remand orders are generally unreviewable (28 U.S.C. §1447(d)) · The notice deadline is jurisdictional because a statute sets it (Bowles v. Russell) · Interlocutory appeals: §1292(a)(1) injunctions, §1292(b) certification, Rule 54(b), the collateral-order doctrine, and Rule 23(f); mandamus (28 U.S.C. §1651) is a writ, not an appeal

The collateral-order doctrine (Cohen)

A few orders before judgment count as final under §1291: they settle a question for good, apart from the merits, and could not be fixed after judgment.

1. The order conclusively determines the disputed question
2. It resolves an important issue completely separate from the merits
3. It is effectively unreviewable on appeal from a final judgment

Exceptions: Judged by the class of orders, not the facts of one case, and kept narrow (Will v. Hallock; Mohawk) · Qualifies: denial of qualified immunity on an issue of law (Mitchell v. Forsyth), and denial of a State's Eleventh Amendment immunity · Does not qualify: an order to disclose material claimed as privileged (Mohawk), an order on disqualifying counsel, or the denial of a defense to liability that is not a right not to be tried · No permission is needed: a collateral order is appealable as of right under 28 U.S.C. §1291, within the usual 30 days

Standards of review

Facts after a bench trial: clearly erroneous. Law and summary judgment: de novo. Discretion: abuse of discretion. Unobjected error: plain error.

1. Findings of fact after a bench trial: clearly erroneous
2. Questions of law, and summary judgment: de novo
3. Discretionary rulings (discovery, evidence, new trial): abuse of discretion
4. Unpreserved error: plain error
5. Error that does not affect substantial rights: harmless

Exceptions: JMOL is reviewed de novo, on the record made at trial · A jury verdict stands if a reasonable jury could reach it, viewing the evidence in favor of the verdict winner · Findings that rest on credibility get special deference (Rule 52(a)(6)) · An appellate court may not reexamine facts tried by a jury other than as the common law permitted

Standing: injury, traceability, redressability

To sue, a plaintiff needs a concrete, particularized injury that is actual or imminent, traceable to the defendant and redressable by the court.

1. Injury in fact: concrete and particularized, and actual or imminent
2. Causation: the injury is fairly traceable to the defendant's challenged conduct
3. Redressability: a favorable decision is likely to remedy the injury

Exceptions: The plaintiff bears the burden of proof at every stage · A bare statutory violation is not enough: the harm must be concrete (TransUnion, 2021) · A generalized grievance shared by all citizens is not a particularized injury · Future harm must be certainly impending or carry a substantial risk (Clapper); an injunction needs a real and immediate threat (Lyons) · A statute that lets 'any person' sue gives a cause of action, not an injury: the plaintiff still needs a concrete stake of her own (Lujan) · Harm that depends on the independent choices of third parties is hard to trace to the defendant (Allen v. Wright; Simon)

Who may sue: taxpayers, third parties, associations, States

Standing has special forms: a narrow federal-taxpayer door, third parties with a close tie, associations suing for members, and States.

1. Federal taxpayer: only a challenge to a congressional taxing-and-spending measure under the Establishment Clause (Flast)
2. Third party: the plaintiff has her own injury, a close relationship with the right-holder, and the right-holder is hindered from suing
3. Association: its members would have standing, the interests are germane to its purpose, and no member need participate
4. State: the ordinary three elements; no parens patriae suit against the federal government
5. Generalized grievance: a citizen's interest in seeing the law obeyed is not an injury

Exceptions: Hein (plurality): executive discretionary spending is outside Flast; Winn: a tax credit is not spending · Overbreadth in a First Amendment case is a separate exception that lets a litigant assert others' rights · States: Massachusetts v. EPA gave a State with a concrete stake and a statutory right to sue 'special solicitude'; United States v. Texas (2023) denied standing to challenge federal non-enforcement against others; Biden v. Nebraska (2023) found standing through a state instrumentality's own loss

Article III: cases and controversies

Federal courts decide real disputes only: no advisory opinions, and the claim must pass standing, ripeness and mootness.

1. An actual, adverse dispute between real parties (no advisory opinion)
2. A plaintiff with standing
3. A claim ripe for decision now
4. A controversy that is not moot
5. No political question

Exceptions: A declaratory judgment is not advisory when the dispute is real and the parties are adverse · The Court has declined to give advisory opinions since 1793, even when a President asked (the Jay letter)

Ripeness: fitness and hardship

A claim is ripe when the issues are fit for decision now and withholding review would cause real hardship.

1. Fitness: the issue is purely legal, or the facts are developed enough to decide
2. Hardship: withholding review would impose real hardship on the parties now

Exceptions: A pre-enforcement challenge is ripe when the issue is legal and the threat of enforcement is credible · Ripeness overlaps with standing: both ask whether the harm is real or imminent rather than hypothetical

Mootness and its four exceptions

A case must stay alive through every stage; it survives a mooting event only through repetition, voluntary cessation, a class, or lasting consequences.

1. A live controversy must exist at every stage, including appeal
2. Exception: capable of repetition yet evading review
3. Exception: voluntary cessation, unless it is absolutely clear the conduct cannot reasonably recur
4. Exception: a class action certified before the named plaintiff's claim ended
5. Exception: collateral consequences of a criminal conviction

Exceptions: Capable of repetition: the same complaining party is reasonably likely to face the same action again, and the action is too short to be fully litigated first · After voluntary cessation, the party claiming mootness bears a heavy burden (Friends of the Earth; FBI v. Fikre, 2024) · A defendant's own statement that it does not intend to resume is not enough: it must be absolutely clear that the conduct cannot recur (Fikre) · An expired parole revocation does not carry a presumption of collateral consequences (Spencer v. Kemna)

Political questions (Baker v. Carr)

A political question is committed to another branch or has no manageable standards, and the courts leave it alone.

1. A textually demonstrable commitment of the issue to a coordinate political branch
2. A lack of judicially discoverable and manageable standards for resolving it
3. Impossibility of deciding without an initial policy determination clearly for nonjudicial discretion
4. Prudential concerns: respect for the other branches, finality of a political decision, conflicting pronouncements

Exceptions: A case is not a political question merely because it touches politics or foreign affairs · Nonjusticiable: partisan gerrymandering (Rucho), Guaranty Clause claims (Luther v. Borden), the Senate's procedure for trying impeachments (Nixon v. United States, 1993), and, in a plurality opinion, a challenge to the President's termination of a treaty (Goldwater v. Carter) · Justiciable: unequal-population claims (Baker v. Carr; the one-person-one-vote standard is Reynolds v. Sims), racial gerrymandering, exclusion of a qualified member of the House (Powell v. McCormack), the steel-mill seizure (Youngstown), a passport statute (Zivotofsky v. Clinton, 2012)

Adequate and independent state ground

The Court will not review a state judgment on adequate, independent state law; if federal law is interwoven and no plain statement is made, it presumes it can.

1. The judgment is final and from the highest state court that could decide the case
2. It rests on a state-law ground
3. That ground is independent of the federal question and adequate to support the judgment
4. If federal law is interwoven, the state court clearly and expressly says its state ground is independent (Long)

Exceptions: A State may give more protection under its own constitution than the federal floor requires (PruneYard) · Reliance on federal cases for guidance does not make a state ground independent · A decision resting wholly on state law and citing no federal law triggers no presumption: the Court lacks jurisdiction · A state procedural default is an adequate ground unless it is unusual or discriminatory in application

Congress and the federal courts

Congress sets lower-court and appellate jurisdiction, but cannot dictate results under unchanged law, reopen final judgments or add to original jurisdiction.

1. Congress creates the lower federal courts and defines their jurisdiction
2. Congress may make exceptions to the Supreme Court's appellate jurisdiction (McCardle)
3. Congress may change the law for pending cases, but not dictate a result under unchanged law (Klein)
4. Congress may not reopen a final judgment (Plaut)
5. Congress may not add to the Supreme Court's original jurisdiction (Marbury)

Exceptions: Original jurisdiction covers ambassadors, other public ministers and consuls, and cases in which a State is a party (Art. III) · Congress may assign public-rights matters to non-Article III adjudicators, but a core private-rights claim must be finally decided by an Article III court unless the parties knowingly and voluntarily consent (Stern v. Marshall; Wellness International v. Sharif, 2015); otherwise a non-Article III judge may only propose findings for de novo review (Executive Benefits v. Arkison, 2014), and ordinary appellate review does not cure the defect (Stern) · Congress may not use its control over jurisdiction to violate another constitutional provision · Congress may let the lower federal courts share the Supreme Court's original jurisdiction (Ames v. Kansas); by statute, only suits between two States are exclusive (28 U.S.C. §1251(a)) · A limit on review by certiorari does not violate the Exceptions Clause while the Court keeps other routes, such as original habeas jurisdiction (Felker v. Turpin)

State sovereign immunity: the bar and the three ways in

A private party cannot sue a State or its arm without consent, valid abrogation, or an Ex parte Young suit against an officer.

1. The defendant is a State or an arm of the State
2. The plaintiff is a private party, even the State's own citizen
3. No consent or waiver by the State
4. No valid abrogation by Congress
5. Not an Ex parte Young suit against an officer for prospective relief

Exceptions: The immunity applies in federal court (Hans), in the State's own courts (Alden) and before federal agency adjudicators (FMC v. South Carolina Ports Authority) · Not protected: counties, cities and school districts · Not barred: suits by the United States or by another State, and personal-capacity damages against an officer (Hafer) · A State is not a 'person' under 42 U.S.C. §1983 (Will): a statutory rule, not the Eleventh Amendment · A waiver must be unequivocally expressed in the statute's text: receiving federal funds or doing business is not enough without a clear statement (Atascadero; College Savings Bank; Sossamon) · A State is also immune from private suits in the courts of other States (Franchise Tax Board v. Hyatt III, 2019)

Abrogation: only through Section 5, with congruence and proportionality

Abrogation works only under Section 5 with a congruent, proportional remedy, never under Commerce; bankruptcy, eminent domain and war are Convention waivers.

1. Congress unequivocally expresses its intent to abrogate
2. It acts under Section 5 of the Fourteenth Amendment, not the Commerce Clause
3. The remedy is congruent and proportional to the constitutional violation it targets

Exceptions: Commerce Clause abrogation fails (Seminole Tribe, overruling Union Gas) · Failed: ADEA damages (Kimel), ADA Title I damages (Garrett) and the FMLA self-care provision (Coleman, plurality opinion) · Passed: Title VII (Fitzpatrick v. Bitzer), FMLA family-care leave (Hibbs), ADA Title II as applied to access to courts (Lane) and to conduct that actually violates the Fourteenth Amendment (United States v. Georgia) · Waivers in the plan of the Convention: bankruptcy (Katz), federal eminent domain (PennEast), war powers (Torres v. Texas DPS, 2022)

Ex parte Young: prospective relief against an officer

A federal court may enjoin a state officer from continuing to violate federal law, but may not award past money from the treasury or enforce state law.

1. The suit is against a state officer in his official capacity
2. The plaintiff alleges an ongoing violation of federal law
3. The relief sought is prospective only

Exceptions: No retroactive payment from the state treasury (Edelman v. Jordan) · No injunction to make state officials follow state law (Pennhurst State School v. Halderman) · The officer must have some connection with the enforcement of the challenged law (Ex parte Young; Whole Woman's Health v. Jackson, 2021)

The Commerce power: three categories

Congress reaches channels, instrumentalities and substantial effects on interstate commerce, but not inactivity or local noneconomic conduct.

1. Channels of interstate commerce, such as highways and waterways
2. Instrumentalities of interstate commerce, and persons or things in it
3. Activities that substantially affect interstate commerce

Exceptions: Third category: economic activity may be aggregated across everyone who engages in it (Wickard; Gonzales v. Raich) · Noneconomic local conduct is not aggregated: the gun-near-school statute (Lopez) and the civil remedy for gender-motivated violence (Morrison) were invalid · Congress may not compel individuals to buy a product (NFIB v. Sebelius) · A jurisdictional element tying the conduct to interstate commerce can save a statute · Morrison asked four things: whether the activity is economic, whether the statute has a jurisdictional element, whether Congress made findings, and how attenuated the link to commerce is · Congress may protect the instrumentalities of interstate commerce even when the threat is local (Southern Railway)

The taxing power

Congress may tax even to regulate, so a modest IRS-collected exaction that raises revenue is a tax, not a penalty.

1. It raises revenue for the government
2. The amount is modest enough to leave a real choice rather than a prohibition
3. It is collected through the ordinary tax machinery, without a scienter requirement

Exceptions: A regulatory motive does not defeat a tax (Sonzinsky; Kahriger) · Direct taxes must be apportioned among the States by population · Taxes on exports are forbidden (Art. I, §9)

Spending conditions (South Dakota v. Dole)

Congress may attach conditions to federal funds if they are general-welfare, clear, related, lawful in themselves and not coercive.

1. In pursuit of the general welfare
2. Stated unambiguously, so a State can knowingly choose
3. Related to the federal interest in the funded program
4. Not barred by an independent constitutional provision
5. Not coercive: pressure that has not become compulsion

Exceptions: Congress may spend for the general welfare even where it could not regulate directly (Butler) · A condition unrelated to the purpose of the funds is suspect, and a condition that would itself require an unconstitutional act is invalid · Dole: losing five percent of highway funds was mild encouragement · NFIB: threatening to withdraw all of a State's existing Medicaid funds was 'a gun to the head'

Necessary and Proper, treaties and foreign affairs

Congress may use any rational means to carry out an enumerated power; a valid treaty can reach subjects otherwise left to the States.

1. Necessary and Proper: a means rationally related to carrying out an enumerated power (McCulloch; Comstock)
2. Treaties: made by the President with two thirds of the Senators present concurring
3. A valid treaty is supreme law and may reach matters otherwise left to the States (Missouri v. Holland)
4. A treaty cannot violate the Constitution (Reid v. Covert, plurality opinion)
5. Congress has no general police power

Exceptions: A self-executing treaty operates as domestic law; a non-self-executing treaty needs legislation (Medellin v. Texas) · Between a statute and a treaty that conflict, the later in time controls · Congress also has foreign commerce, naturalization, immigration, territory and property powers · Congress legislates for federal property and the territories (Art. IV, §3) and has exclusive legislative power over the District of Columbia (Art. I, §8, cl. 17)

Enforcing the Thirteenth, Fourteenth and Fifteenth Amendments

The Thirteenth reaches private conduct; Section 5 of the Fourteenth reaches state action with a congruent and proportional remedy.

1. Thirteenth Amendment, Section 2: Congress may eliminate slavery's badges and incidents, even in private conduct (Jones v. Alfred H. Mayer)
2. Fourteenth Amendment, Section 5: reaches state action only
3. Fourteenth Amendment, Section 5: the remedy must be congruent and proportional to the violation (City of Boerne)
4. Fifteenth Amendment, Section 2: enforces the right to vote free of racial discrimination

Exceptions: Section 5 may prohibit some conduct that is not itself unconstitutional if the remedy is congruent and proportional (Hibbs) · Private discrimination can still be reached under the commerce power (Heart of Atlanta) · The Court upheld the Voting Rights Act under a rational-means test (South Carolina v. Katzenbach, 1966); Shelby County v. Holder (2013) struck the coverage formula as outdated, not the Fifteenth Amendment power

Presidential power: Jackson's three zones

The President's power is at its maximum with Congress's authorization, uncertain in its silence, and at its lowest ebb against Congress's will.

1. Zone 1: the President acts with congressional authorization: authority at its maximum
2. Zone 2: Congress is silent: concurrent authority, a twilight zone
3. Zone 3: the President acts against Congress's expressed or implied will: authority at its lowest ebb

Exceptions: In zone 3 the President prevails only if Congress lacks the power to act on the subject · The President is not a lawmaker: an order has the force of law only if the Constitution or a statute authorizes it · Long-standing congressional acquiescence can support presidential action (Dames & Moore v. Regan)

War powers: Congress and the Commander in Chief

Congress declares war and funds the military; the President commands it and may repel attacks, but cannot make domestic law or ignore due process.

1. Congress declares war, raises and funds the armed forces, and makes rules for them
2. The President is Commander in Chief and directs the forces that Congress provides
3. Congress checks the use of force through the declaration, the purse and statutes
4. The Commander in Chief power does not make the President a lawmaker at home (Youngstown)
5. A citizen held as an enemy combatant gets notice and a fair chance to rebut (Hamdi, plurality)
6. Noncitizens held where the United States has complete control may seek habeas (Boumediene)

Exceptions: The President may act to repel a sudden attack without waiting for Congress (the Prize Cases) · Military commissions must comply with the statutes that Congress has enacted (Hamdan v. Rumsfeld) · Background, not a tested rule: the War Powers Resolution asks for a report within 48 hours and withdrawal after 60 days (plus 30) without authorization; the Court has never decided whether it is valid

Foreign affairs: recognition and executive agreements

The President alone recognizes foreign governments and may make some executive agreements, but cannot override a statute or the Constitution.

1. Recognition of foreign governments belongs exclusively to the President (Zivotofsky v. Kerry)
2. The President may make executive agreements without the Senate, such as settling claims (Dames & Moore)
3. An executive agreement or order cannot override a conflicting federal statute or the Constitution
4. A non-self-executing treaty is not domestic law until Congress implements it (Medellin)
5. Congress-President disputes in foreign affairs are analyzed in Jackson's three zones

Exceptions: Zivotofsky invalidated a statute that required the State Department to list 'Israel' as the birthplace on passports, against the President's recognition policy · A sole executive agreement may preempt conflicting state law in foreign affairs (Belmont; Garamendi) · Congress traditionally gives the President more latitude in foreign affairs than in domestic delegations (Curtiss-Wright)

The Appointments Clause: who may appoint whom

Principal officers need Senate confirmation; Congress may vest inferior officers in the President, courts or department heads; Congress itself may not appoint.

1. Principal officers: nominated by the President and appointed with the Senate's advice and consent
2. Inferior officers: Congress may vest appointment in the President alone, the courts of law, or heads of departments
3. Congress itself may not appoint officers who execute the laws (Buckley)
4. An 'officer' exercises significant authority under federal law; mere employees need no appointment

Exceptions: An inferior officer's work is directed and supervised at some level by a principal officer (Edmond); an officer whose final decisions no principal officer can review is a principal officer (Arthrex, 2021) · SEC administrative law judges are officers who must be appointed by the President, a court or the head of the agency (Lucia) · A recess shorter than ten days is presumptively too short for a recess appointment, and pro forma sessions count as sessions (Noel Canning)

Removal: who can fire an officer

The President may remove executive officers at will; Congress cannot keep removal for itself, and for-cause shields for executive power are suspect.

1. The President may remove executive officers at will (Myers)
2. Congress may not reserve removal for itself or its own officers (Bowsher)
3. A single agency head wielding executive power may not be shielded by for-cause protection (Seila Law)
4. Two layers of for-cause protection are invalid (Free Enterprise Fund)

Exceptions: Slaughter left open the Federal Reserve (the tradition of the First and Second Banks), non-Article III courts and officials not before the Court · Trump v. Cook (2026) was an interim order refusing to stay an injunction: not a merits ruling on the Fed · Whether inferior officers and civil servants may have for-cause protection (Morrison v. Olson) was not decided by Slaughter

Traditional rule: Humphrey's Executor (1935): Congress could protect the members of a multimember agency that exercised no part of the executive power.
Modern trend: Trump v. Slaughter (2026): officers who wield executive power are removable at will; the FTC's for-cause shield fails and any remaining part of Humphrey's is overruled.

Bicameralism and presentment

A law needs both Houses and the President's signature, or a two-thirds override: no one-House veto, no line-item veto.

1. Both Houses pass the same bill
2. The bill is presented to the President
3. The President signs it, or two thirds of each House override a veto

Exceptions: No legislative veto: a one-House veto of executive action is invalid (INS v. Chadha) · No line-item veto: the President may not cancel parts of a law (Clinton v. City of New York) · Pocket veto: an unsigned bill dies only if Congress's adjournment prevents its return; otherwise it becomes law after ten days, Sundays excepted

Nondelegation and the major questions doctrine

Congress may delegate if it states the policy and its bounds; the Court has found an intelligible principle lacking only twice, both in 1935.

1. Congress states the general policy the agency must pursue
2. Congress states the boundaries of the authority delegated

Exceptions: The Court has found an intelligible principle lacking only twice, both in 1935 (Panama Refining; Schechter Poultry); a 1936 case struck a delegation to private parties on a different ground (Carter v. Carter Coal) · Congress may leave an agency to fill in the details under broad general directives (Mistretta) · Major questions doctrine: decisions of vast economic and political significance need clear congressional authorization (West Virginia v. EPA, 2022; Biden v. Nebraska, 2023)

Impeachment and congressional oversight

The House impeaches, the Senate convicts by two thirds, and the penalty is removal and disqualification only; Congress may also investigate to legislate.

1. Impeachable: the President, Vice President and all civil officers of the United States
2. Grounds: treason, bribery, or other high crimes and misdemeanors
3. The House has the sole power to impeach; the Senate has the sole power to try
4. Conviction takes two thirds of the Senators present; the Chief Justice presides when the President is tried
5. Judgment: removal and disqualification only; the pardon power does not reach impeachment
6. Oversight: Congress may investigate and subpoena in aid of legislation (McGrain)

Exceptions: Federal judges hold office during good behavior and are removable only by impeachment and conviction · The Senate's procedure for trying an impeachment is a political question (Nixon v. United States, 1993) · A convicted official may still be indicted, tried and punished in the courts · A subpoena for a President's personal papers is weighed for legislative purpose, alternative sources, narrowness and burden (Trump v. Mazars, 2020)

Immunities of the President and of legislators

Presidents have civil immunity for official acts only; legislators are protected for legislative acts, not press releases.

1. President: absolute immunity from civil damages for official acts (Nixon v. Fitzgerald)
2. President: no immunity from civil suit over unofficial acts, even while in office (Clinton v. Jones)
3. Executive privilege is qualified: a generalized claim yields to a criminal trial's need for evidence (United States v. Nixon)
4. Speech or Debate: a legislator's legislative acts cannot be questioned elsewhere
5. Press releases and newsletters are not legislative acts (Hutchinson v. Proxmire)

Exceptions: Speech or Debate does not protect taking a bribe (Brewster) · Judges have absolute immunity for judicial acts (Stump v. Sparkman); presidential aides have qualified immunity (Harlow) · A state grand-jury subpoena to a sitting President is not barred by Article II or the Supremacy Clause (Trump v. Vance, 2020) · Trump v. United States (2024): criminal immunity is absolute for core constitutional powers, at least presumptive for other official acts (the Court left open whether it is absolute), and none for unofficial acts

Federal immunity from state law

A State may not tax or regulate the federal government directly or discriminate against it or those it deals with.

1. A State may not tax or regulate the federal government directly
2. A State may not discriminate against the federal government, its employees or its contractors
3. A State may apply nondiscriminatory taxes and rules to private parties who deal with the federal government
4. Federal officers doing what federal law authorizes are immune from state prosecution (Neagle)

Exceptions: Discrimination means treating the federal government, or those who deal with it, worse than the State treats itself or similarly situated others (Dawson v. Steager: state retirees exempt, federal retirees taxed; United States v. Washington, 2022) · Congress may consent to state taxation or regulation of federal property

Anticommandeering: the Tenth Amendment limit

Congress may regulate private actors and apply general laws to States, but cannot command a State to enact or enforce federal policy.

1. Congress directs a State's legislature or officers, not private actors
2. It orders the State to enact, administer or enforce federal policy, or forbids the State to enact a law

Exceptions: Generally applicable laws may bind States too (Garcia; Reno v. Condon) · Conditions on federal funds are tested under Dole, not as commandeering · Federal law may require state courts to hear federal claims on the same terms as state claims (Testa v. Katt) · A preemption provision must regulate private conduct, not the State's own lawmaking (Murphy v. NCAA)

Preemption: express, field, impossibility, obstacle

Valid federal law prevails over conflicting state law through express text, a pervasive scheme, impossibility, or obstruction of Congress's aims.

1. Express preemption: the federal statute says so
2. Field preemption: federal regulation is so pervasive that it leaves no room for the States
3. Conflict preemption: it is impossible to comply with both
4. Conflict preemption: the state law is an obstacle to the purposes and objectives of Congress

Exceptions: Presumption against preemption in fields of traditional state regulation, such as health and safety · Valid federal regulations preempt as well as statutes · The Supremacy Clause is a rule of priority, not a source of a federal cause of action (Armstrong v. Exceptional Child Center, 2015) · A preemption provision must regulate private conduct, not commandeer the States (Murphy) · Whether the FDA would have rejected a label change (the 'clear evidence' in Wyeth) is a question for the judge (Merck v. Albrecht, 2019)

Dormant Commerce Clause: discriminatory state laws

A state law that discriminates against interstate commerce is virtually per se invalid unless no neutral alternative can serve a legitimate local purpose.

1. The law favors in-state economic interests over out-of-state ones, on its face, in purpose or in effect
2. It is then virtually per se invalid
3. Unless it is necessary to serve a legitimate local purpose that no nondiscriminatory alternative can serve

Exceptions: The escape routes (market participant, congressional authorization) are on the Escape routes card · Facially discriminatory laws almost always fail (Philadelphia v. New Jersey; Dean Milk); one that passed was Maine v. Taylor, the live-baitfish import ban · A durational residency requirement for liquor retailers fails, and the Twenty-first Amendment is no shield (Tennessee Wine, 2019) · A State may not let in-state wineries ship directly to consumers while burdening out-of-state wineries; the Twenty-first Amendment does not authorize discrimination (Granholm v. Heald, 2005) · A neutral-looking law that discriminates in effect gets the same strict review (Hunt v. Washington State Apple Advertising Commission, 1977) · Flow control to a publicly owned facility is valid (United Haulers); to a private one it is not (Carbone)

Pike balancing: neutral laws

A neutral state law is invalid only if its burden on interstate commerce is clearly excessive in relation to its local benefits.

1. The law regulates even-handedly, without discriminating
2. It serves a legitimate local public interest
3. The burden on interstate commerce is clearly excessive in relation to the putative local benefits

Exceptions: A mere burden is not enough: it must be clearly excessive · National Pork Producers v. Ross (2023): the Court rejected an almost per se rule against laws with extraterritorial effects · Laws that disrupt the uniformity of interstate transportation are the classic Pike losers (Bibb v. Navajo Freight Lines, the mudguard case)

Escape routes: market participant and congressional approval

A State that buys or sells may favor its own citizens, and Congress may authorize otherwise-invalid state laws if its intent is unmistakably clear.

1. Market participant: a State buying or selling in the market may favor its own citizens (Reeves)
2. The preference may not reach downstream beyond the State's own market participation (South-Central Timber, plurality on this point)
3. Congressional authorization: Congress may authorize state laws that would otherwise burden commerce, if its intent is unmistakably clear

Exceptions: Congress cannot authorize a State to violate individual-rights provisions: an authorized discriminatory insurance tax still failed Equal Protection (Metropolitan Life v. Ward, 1985) · The authorization must be unmistakably clear: Congress's silence, or its deference to state law in a field, is not enough (South-Central Timber; Sporhase), but express text can do it (Prudential v. Benjamin) · The market-participant exception is a dormant Commerce Clause doctrine only: it does not displace the Article IV Privileges and Immunities Clause (United Building & Construction Trades Council v. Camden, 1984)

Article IV Privileges and Immunities

A State may not discriminate against nonresident citizens on livelihood without a substantial reason that the discrimination closely serves.

1. The plaintiff is a natural person who is a citizen of another State, not a corporation or alien
2. The State discriminates against nonresidents on a fundamental right or important economic interest, such as livelihood
3. The State has no substantial reason, or the discrimination is not substantially related to its objective

Exceptions: Not fundamental: recreational elk hunting (Baldwin v. Fish and Game Commission) · A city's residency preference is covered too, and being a market participant is no defense under Article IV (United Building & Construction Trades Council v. Camden) · The Fourteenth Amendment Privileges or Immunities Clause protects only the rights of national citizenship; Saenz applies it to a new resident's right to the same benefits as longer-term residents · A nonresident corporation challenges discrimination under the Dormant Commerce Clause instead

State taxes on interstate commerce (Complete Auto)

A state tax on interstate commerce needs a substantial nexus, fair apportionment, no discrimination and a fair relation to state services.

1. Substantial nexus between the activity taxed and the taxing State
2. Fair apportionment
3. No discrimination against interstate commerce
4. Fair relation to the services the State provides

Exceptions: Physical presence is not required for a substantial nexus: an economic presence suffices (South Dakota v. Wayfair, 2018, overruling Quill)

State action: the government, a public function, or entanglement

The Bill of Rights and the Fourteenth Amendment restrain government, not private parties, unless private conduct is attributed to the state.

1. The actor is the government itself: a federal, state or local official or body
2. Or a private party exercises a power traditionally and exclusively reserved to the state
3. Or the state is so entwined with the private conduct that the conduct is the state's own

Exceptions: Exclusive public functions: running a company town (Marsh) and running the election that picks a party's candidates (Terry v. Adams; Smith v. Allwright) · Not exclusive public functions: a shopping center (Hudgens), electric service (Jackson), a school for troubled students (Rendell-Baker), public-access cable channels (Halleck) · Entanglement: a court enforcing a racial covenant (Shelley), a joint venture with a public landlord (Burton), public officials running an athletic association (Brentwood), officials helping a private party seize property (Lugar) · Licensing, regulation and funding alone are not enough (Moose Lodge; Blum v. Yaretsky; Jackson) · Congress may reach private conduct through its commerce power and the Thirteenth Amendment, which has no state action requirement: Congress may ban private racial discrimination in property sales (Jones v. Alfred H. Mayer) · Section 5 of the Fourteenth Amendment reaches only state action (Civil Rights Cases; United States v. Morrison)

An official's personal account: both prongs or no state action

An official's post is state action only if the official had actual authority to speak for the state and purported to use it in that post.

1. The official possessed actual authority to speak on the State's behalf on the subject
2. The official purported to exercise that authority in the speech at issue

Exceptions: The authority must come from law, such as a statute, ordinance, regulation, custom or usage · On a mixed-use page, each post or deletion is judged separately · Holding public office, or talking about one's job, is not enough

Substantive due process: fundamental rights get strict scrutiny

A right deeply rooted in the Nation's history and tradition, carefully described, gets strict scrutiny; every other interest gets rational basis.

1. Describe the claimed right carefully
2. Is it deeply rooted in the Nation's history and tradition (Glucksberg)?
3. Yes: strict scrutiny; no: rational basis

Exceptions: Fundamental: marry, procreate and use contraception, direct the upbringing and education of one's children, keep the family together (Moore, plurality), travel, vote · A protected liberty interest in refusing treatment (Cruzan, assumed; the state may require clear and convincing evidence of an incompetent patient's wishes) · Intimate private conduct is protected liberty (Lawrence; the Court named no tier) · Not fundamental: abortion (after Dobbs), physician-assisted suicide (Glucksberg), a public education (Rodriguez) · Only laws that significantly interfere with the right to marry get strict scrutiny; reasonable regulations do not (Zablocki)

Traditional rule: Abortion before viability: Roe's trimester framework, then Casey's undue burden standard
Modern trend: Abortion: no fundamental right, rational basis review (Dobbs)

Everything else: rational basis (economic rules, abortion)

A law that burdens no fundamental right is valid if rationally related to a legitimate purpose, and the challenger must negate every conceivable basis.

1. The law burdens no fundamental right
2. The government's purpose is legitimate
3. The law is rationally related to that purpose, on any conceivable basis
4. The challenger carries the burden

Exceptions: Lochner-era scrutiny of economic regulation is dead (Lee Optical; Ferguson v. Skrupa) · Separate due process limit on punitive damages awards; not a rational basis question: reprehensibility, ratio to actual harm, comparable penalties (BMW v. Gore); a single-digit ratio is the likely limit (State Farm v. Campbell)

The Second Amendment: text, then history

If the Second Amendment's text covers the conduct, the government must show a historical tradition of similar regulation; no interest balancing.

1. Does the plain text cover the person, the arm and the conduct?
2. If so, the Constitution presumptively protects the conduct
3. The government must show the regulation fits the Nation's historical tradition of firearm regulation
4. Compare relevantly similar historical analogues by how and why they burdened the right

Exceptions: No means-end or interest balancing (Bruen rejected intermediate scrutiny) · A historical twin is not required: the principles must be relevantly similar (Rahimi, 2024) · The right applies to the states through the Fourteenth Amendment (McDonald) · Longstanding bans on felon and mentally ill possession and on carrying in sensitive places are presumptively lawful (Heller)

The right to travel: new residents cannot be penalized

A law that penalizes new residents for having recently moved, such as a waiting period for benefits, burdens the right to travel and gets strict scrutiny.

1. The law treats new residents worse than long-term residents because they recently moved
2. It penalizes the fundamental right to travel between states
3. Strict scrutiny: necessary to a compelling interest
4. Saving money or discouraging migration is not a compelling interest

Exceptions: Bona fide residence rules can be valid, such as higher university tuition for nonresidents (Vlandis v. Lee) · A one-year residence requirement to file for divorce was upheld (Sosna v. Iowa) · The right also covers entering and leaving a state and being treated as a welcome visitor (Saenz v. Roe) · No fundamental right to education (Rodriguez), housing (Lindsey v. Normet) or welfare (Dandridge): the travel penalty, not the benefit, triggers strict scrutiny

Procedural due process: interest, deprivation, process

Before the government deprives a person of life, liberty or property, it owes notice and a meaningful chance to be heard. No protected interest, no process.

1. State action
2. A protected interest in life, liberty or property
3. A deprivation of that interest by the government, not mere negligence
4. Process that is inadequate: no notice or no meaningful opportunity to be heard

Exceptions: How much process is a flexible question: use the Mathews balance · A general legislative act aimed at many people needs no individual hearing (Bi-Metallic)

Protected interests: property and liberty

Property is a legitimate claim of entitlement under state law; liberty is physical freedom, fundamental rights, or reputation plus a tangible loss.

1. Property: a legitimate claim of entitlement under state law or rules, not a unilateral expectation
2. Liberty: physical freedom, fundamental rights, or reputation plus a tangible loss (stigma plus)
3. Prisoners: only an atypical and significant hardship in relation to ordinary prison life

Exceptions: No property interest: an at-will or untenured employee with no entitlement (Roth); police enforcement of a restraining order (Castle Rock v. Gonzales) · A public school suspension of ten days or less requires notice and an informal hearing (Goss v. Lopez) · Corporal punishment in schools needs no advance hearing, because state tort remedies suffice (Ingraham v. Wright)

Mathews v. Eldridge: how much process is due

Weigh the private interest, the risk of error and the value of added safeguards, and the government's interest including the burden of more process.

1. The private interest affected by the official action
2. The risk of erroneous deprivation and the probable value of added safeguards
3. The government's interest, including the fiscal and administrative burden of more process

Exceptions: Welfare benefits: an evidentiary hearing before termination (Goldberg v. Kelly) · Disability benefits: a post-termination hearing suffices (Mathews) · Tenured public employee: notice and a chance to respond before dismissal, with a full hearing afterwards (Loudermill)

No deprivation: negligence and random acts with a remedy

A state official's negligence is not a deprivation, and a random, unauthorized act is not a violation when the state offers an adequate remedy afterward.

1. Mere negligence by a state official is not a deprivation of life, liberty or property (Daniels v. Williams)
2. A random, unauthorized loss of property is no violation if an adequate remedy follows (Parratt; Hudson v. Palmer)

Exceptions: If the deprivation follows an established state procedure, pre-deprivation process is required (Logan v. Zimmerman Brush) · An impartial decisionmaker is part of due process: a judge must recuse when there is a serious risk of actual bias (Caperton) · No automatic right to appointed counsel in civil cases (Lassiter; Turner v. Rogers)

Equal protection: classification, state action and purpose

Equal protection needs state action and a classification; a neutral law that merely has a disparate impact fails only if it was adopted because of that impact.

1. State action
2. A classification, on the face of the law or in its application
3. For a facially neutral law: discriminatory purpose, not just disparate impact
4. Then ask which tier of review the classification receives

Exceptions: Disparate impact is evidence of purpose but not enough alone (Washington v. Davis; Arlington Heights) · 'Because of, not merely in spite of' the effect on a group (Personnel Administrator v. Feeney) · The federal government is bound through the Fifth Amendment's due process clause (Bolling v. Sharpe)

Strict scrutiny: race, national origin, state alienage, fundamental rights

Race, national origin and state alienage classifications, and burdens on fundamental rights, must be necessary to a compelling interest.

1. Race and national origin classifications, even when the purpose is benign
2. State classifications based on alienage, except for political functions
3. Burdens on fundamental rights, such as voting and interstate travel

Exceptions: Political-function jobs get rational basis: police (Foley v. Connelie), public school teachers (Ambach v. Norwick), probation officers (Cabell v. Chavez-Salido) · Federal alienage classifications get rational basis review (Mathews v. Diaz) · Plyler v. Doe: Texas could not exclude children not lawfully present from public school, but the Court did not say that immigration status is suspect · Access to courts: no fee may bar an indigent from divorce (Boddie) or from appealing a criminal conviction or a termination of parental rights (Griffin; Douglas; M.L.B.); fees for bankruptcy and welfare appeals are valid (Kras; Ortwein)

Race-conscious government programs: still strict scrutiny

Even a benign racial classification must be necessary to a compelling interest; the accepted interests are very few, and educational diversity is not one.

1. Any racial classification, benign or invidious, triggers strict scrutiny
2. The government must show a compelling interest
3. Accepted: remedying identified, unlawful past discrimination the government took part in; prison safety
4. The means must be narrowly tailored: race-neutral alternatives, no quotas, a logical end point

Exceptions: Race-conscious college admissions fail: diversity interests are too amorphous to measure (SFFA v. Harvard, 2023) · Generalized societal discrimination is not a compelling interest (Croson) · Federal and state programs get the same scrutiny (Adarand)

Sex classifications: intermediate scrutiny and a persuasive justification

A sex classification needs an important objective, a substantial relationship, and an exceedingly persuasive justification without stereotypes.

1. A classification by sex, whichever sex it favors
2. The government must show an important objective
3. The classification is substantially related to that objective
4. The justification is exceedingly persuasive and does not rest on stereotypes

Exceptions: Male-only draft registration was upheld with deference to Congress on military matters (Rostker v. Goldberg) · Nonmarital birth also gets intermediate scrutiny (Clark v. Jeter) · A facially neutral law still needs discriminatory purpose (Feeney) · Real biological differences can support a sex classification (Nguyen v. INS; Michael M. v. Superior Court), and a pregnancy classification is not itself a sex classification (Geduldig v. Aiello)

Rational basis classes: age, wealth, disability, and animus

Age, wealth, disability and most economic lines get rational basis; a bare desire to harm an unpopular group is not a legitimate purpose.

1. The class is not suspect or quasi-suspect: age, wealth, disability, most economic lines
2. The law has a legitimate purpose and a rational relation to it, on any conceivable basis
3. The challenger bears the burden, and over- and under-inclusion are tolerated
4. But a bare desire to harm a politically unpopular group is not legitimate

Exceptions: Animus cases: Moreno (food stamps denied to households of unrelated people), Cleburne (group homes), Romer (state constitutional amendment against protection of gays and lesbians)

Voting and districting

Wealth tests for voting fail, nearly equal population is required, and a district drawn with race as the predominant factor gets strict scrutiny.

1. Poll taxes and wealth or property tests for voting are invalid (Harper; Kramer)
2. Ballot-access and voting rules: weigh the burden against the state's interest (Anderson-Burdick; Crawford)
3. One person, one vote: nearly equal districts; a state plan under 10 percent total deviation is presumptively valid
4. A district drawn with race as the predominant factor gets strict scrutiny (Shaw; Miller)

Exceptions: State legislative districts: a total deviation over 10 percent is prima facie discriminatory and needs a legitimate justification (Brown v. Thomson) · Congressional districts must be as nearly equal as practicable (Wesberry; Karcher) · Partisan gerrymandering claims are nonjusticiable political questions (Rucho) · A state may disenfranchise felons (Richardson v. Ramirez) · Special-purpose districts whose costs and functions fall mainly on landowners may limit or weight the vote by land (Salyer; Ball v. James); a general school district may not limit its vote to owners and parents (Kramer) · A state may apportion by total population (Evenwel) · A residency requirement of one year (three months in the county) for voting fails strict scrutiny (Dunn v. Blumstein); about 30 days has been treated as enough for registration

The Takings Clause: public use and just compensation

Property may be taken only for public use with just compensation: almost any rational public purpose counts, and compensation is fair market value.

1. The government takes private property, by physical seizure or by regulation
2. The taking is for public use: any rationally conceivable public purpose suffices
3. Just compensation is paid: fair market value at the time of the taking

Exceptions: The Clause applies to the states through the Fourteenth Amendment · Economic development under a comprehensive plan is a public use (Kelo); breaking up concentrated land ownership is too (Midkiff) · Abating a nuisance is not a taking; ordinary zoning that leaves economically viable use is usually upheld (Euclid), though zoning is still tested under Penn Central or Lucas · A temporary taking still requires compensation for the period it lasts (First English)

Takings without balancing: occupation, appropriation, wipe-out, surplus

Permanent physical occupation, appropriation of property, and total loss of economic use are takings per se; all other regulations are balanced.

1. A permanent physical occupation, however small (Loretto)
2. A government-authorized physical invasion that appropriates the right to exclude, even if intermittent (Cedar Point)
3. An appropriation of personal property, such as a raisin reserve (Horne)
4. A regulation that eliminates all economically beneficial use of land (Lucas)
5. Keeping the surplus above a tax debt after foreclosure: a taking, because the surplus is the owner's property (Tyler)

Exceptions: Lucas: no taking if background principles of state property or nuisance law already barred the use · Health and safety inspections and isolated physical invasions are not takings (Cedar Point) · Tyler rests on the owner's property interest in the surplus under state property law and the common law, not on a separate per se rule

Penn Central: the balance for every other regulatory taking

For any other regulation, weigh the economic impact, the interference with investment-backed expectations, and the character of the government action.

1. The economic impact of the regulation on the claimant
2. The extent of interference with distinct investment-backed expectations
3. The character of the government action

Exceptions: Landmark designation was not a taking (Penn Central) · A temporary moratorium is judged under Penn Central, not per se (Tahoe-Sierra) · The parcel as a whole is the unit, considering unity of ownership (Murr v. Wisconsin) · A later purchaser is not automatically barred from claiming a taking (Palazzolo) · Whether a regulation 'substantially advances' a legitimate interest is a due process question, not a takings test (Lingle)

Exactions: nexus and rough proportionality

A permit condition that takes property needs an essential nexus to the permit's impact and rough proportionality to it, even if imposed by a legislature.

1. The government conditions a land-use permit on the owner giving up property or money
2. There is an essential nexus between the condition and the permit's impact (Nollan)
3. The condition is roughly proportional in nature and extent to that impact (Dolan)

Exceptions: Applies to demands for money tied to a specific parcel (Koontz) and when the permit is denied for refusing the demand · Applies to conditions imposed by legislation, not only by ad hoc decisions (Sheetz v. County of El Dorado, 2024) · Sheetz left open whether a condition imposed on a class of properties must be tailored as specifically as one aimed at a single development, and it did not decide whether the fee there passed the test

Unconstitutional conditions

A benefit cannot be conditioned on giving up a right the government could not take directly, unless the condition only defines the funded program.

1. A benefit, job or funding is conditioned on waiving a constitutional right
2. The government could not demand the waiver directly
3. So the condition is invalid, unless it only defines the scope of the program the government funds

Exceptions: The government may define the program it funds (Rust v. Sullivan) · It may not leverage funding to control a recipient's own speech outside the program (AOSI, 2013) · Examples: a tax exemption scheme that made claimants prove they did not advocate overthrow (Speiser); a job conditioned on silence (Perry v. Sindermann); permits conditioned on property (Koontz) · An oath to support the Constitution and oppose its forcible overthrow is a valid condition of public employment (Cole v. Richardson) · The government may not bar funded lawyers from challenging existing welfare law in their cases (Legal Services Corp. v. Velazquez)

The Contracts Clause: states only

A state law that substantially impairs a contract must be reasonable and necessary to a significant and legitimate public purpose; Congress is not bound.

1. A state or local law, not a federal law
2. Impairs an existing contract
3. The impairment is substantial
4. It is valid only if a reasonable and necessary means to serve a significant and legitimate public purpose

Exceptions: Courts defer to the legislature on reasonableness and necessity for private contracts (Energy Reserves) · No deference when the state impairs its own contract for financial self-interest (U.S. Trust v. New Jersey) · Emergency measures may be valid (Home Building & Loan v. Blaisdell) · Congress is not bound by the Contracts Clause; retroactive federal contract changes face due process and takings review · Only contracts that exist when the state law takes effect are protected

Bills of attainder: legislative punishment without a trial

A legislature may not punish named persons or an identifiable group without a judicial trial; the ban binds Congress and the states.

1. A legislative act, federal or state
2. That inflicts punishment
3. On an identified individual or group
4. Without a judicial trial

Exceptions: Punishment is found by the historical, functional (nonpunitive purpose) and motivational tests (Nixon v. Administrator of General Services) · Attainder: barring Communist Party members from union office (United States v. Brown) · Not attainder: a statute that singled out one former President's papers for custody (Nixon v. GSA)

Ex post facto laws: criminal and retroactive

Ex post facto bars retroactive criminal laws that criminalize, aggravate, increase punishment or lower the proof required; civil laws are not covered.

1. A criminal law, not a civil law
2. Applied retroactively to conduct before the law's enactment
3. That makes innocent conduct criminal, aggravates a crime, increases punishment, or lowers the proof needed to convict

Exceptions: Reviving an expired limitations period is invalid, but extending an unexpired period is valid (Stogner) · Civil sex-offender registration is not punishment (Smith v. Doe) · Retroactive civil laws face due process review for rationality only

Privileges and Immunities: Article IV and the Fourteenth Amendment

Article IV bars discrimination against out-of-state citizens in livelihood without a substantial reason; the Fourteenth Amendment clause is narrow.

1. The law discriminates against citizens of other states (natural persons only, not corporations or aliens)
2. It burdens a fundamental right or an important economic interest, such as pursuing a livelihood
3. It is valid only if there is a substantial reason for the discrimination
4. And the discrimination bears a substantial relationship to that reason

Exceptions: Corporations and aliens cannot invoke the Article IV clause · Recreational hunting is not a fundamental interest (Baldwin v. Fish and Game Commission) · The Fourteenth Amendment clause protects only rights of national citizenship (Slaughter-House Cases), though it bars a state from paying new residents less than long-term residents (Saenz v. Roe) · A state acting as a market participant is not excused from the Article IV clause (Camden)

Content-based laws get strict scrutiny; viewpoint discrimination is worst

A law that targets speech because of its subject, function or viewpoint is content-based and must be necessary to a compelling interest.

1. Government action restricts speech
2. The restriction is content-based: it applies because of the topic, idea or viewpoint expressed
3. Strict scrutiny: necessary to a compelling interest, by the least restrictive means
4. Viewpoint discrimination is invalid even in limited and nonpublic forums

Exceptions: A benign motive does not save a facially content-based law (Reed) · An on-premises versus off-premises sign rule is content-neutral (City of Austin, 2022) · Trademark names clause: content-based but viewpoint-neutral, upheld on history and tradition (Vidal v. Elster, 2024) · Viewpoint-based: bans on disparaging or immoral trademarks (Matal v. Tam; Iancu v. Brunetti); a university's refusal to fund a religious viewpoint (Rosenberger)

Time, place and manner: Ward

A content-neutral time, place or manner rule must be narrowly tailored to a significant interest and leave open ample alternative channels.

1. The regulation is content-neutral
2. It is narrowly tailored to serve a significant government interest
3. It leaves open ample alternative channels of communication

Exceptions: Narrow tailoring does not require the least restrictive means (Ward; Clark v. CCNV) · A 35-foot buffer zone at clinic entrances burdened substantially more speech than necessary (McCullen v. Coakley) · A ban on picketing before a single residence is valid (Frisby v. Schultz)

Forums: where the speech happens

Streets and parks get strict scrutiny for content-based rules; limited and nonpublic forums need only viewpoint neutrality and reasonableness.

1. Public forums (traditional, designated): content-based rules get strict scrutiny; neutral rules get Ward review
2. Limited public forums: restrictions must be viewpoint-neutral and reasonable in light of the forum's purpose
3. Nonpublic forums: restrictions must be viewpoint-neutral and reasonable

Exceptions: Traditional: streets, sidewalks and parks (Hague v. CIO) · Nonpublic: an airport terminal, where a solicitation ban was reasonable (ISKCON v. Lee); a polling place, where a political-apparel ban was too indeterminate to be reasonable (Mansky, 2018) · Limited: a public school's after-hours use policy (Good News Club) and a law school's recognition program for student groups (Christian Legal Society v. Martinez)

R.A.V., secondary effects and the heckler's veto

A city cannot ban only the unprotected speech it dislikes, but it can zone adult businesses by their secondary effects; hostile listeners cannot veto speech.

1. The government may not ban only the fighting words or threats that express disfavored messages (R.A.V.)
2. Unless the line tracks the very reason the category is unprotected, as with threats against the President
3. Zoning adult businesses to curb crime is a content-neutral time, place and manner rule (Renton)
4. A fee or ban may not depend on how hostile the audience is likely to be (Forsyth County)

Exceptions: A city may ban all fighting words, or all true threats, without regard to their message · Public nudity bans can be applied to nude dancing under the O'Brien test (Barnes; Erie v. Pap's)

Expressive conduct: O'Brien

A neutral law with an incidental burden on expressive conduct survives if it serves an important, unrelated interest and burdens no more speech than essential.

1. The regulation is within the government's constitutional power
2. It furthers an important or substantial government interest
3. The interest is unrelated to the suppression of free expression
4. The incidental restriction on expression is no greater than essential to that interest

Exceptions: Conduct is expression only if the actor intends to convey a particularized message and it is likely to be understood (Spence) · If the law is aimed at the message, strict scrutiny applies: flag burning is protected (Texas v. Johnson; Eichman)

Government speech

When the government speaks, or selects and controls the message, the Free Speech Clause does not apply; a program open to everyone is not government speech.

1. The government itself speaks, or selects and controls the message
2. It may choose its message and favor viewpoints without Free Speech Clause limits
3. A program that accepts all comers is not government speech (Shurtleff)

Exceptions: Examples: permanent monuments in a public park (Summum); specialty license plates (Walker) · Other limits still apply, such as the Establishment Clause and the political process

Compelled speech and funding

The government generally cannot force a person to speak, host or fund a message, but it may require factual, uncontroversial commercial disclosures.

1. The government cannot compel a person to speak or display a message the person rejects (Barnette; Wooley; Hurley)
2. It cannot compel a business to create expressive work conveying a message it opposes (303 Creative)
3. Professional speech gets no lower tier of protection (NIFLA)
4. It cannot force nonmember public employees to pay agency fees (Janus)

Exceptions: Factual, noncontroversial commercial disclosures that are not unjustified or unduly burdensome need only be reasonably related to the state's interest in preventing deception (Zauderer; NIFLA) · Requiring a law school to host military recruiters is not compelled speech (Rumsfeld v. FAIR)

Campaign finance

Contribution limits survive if closely drawn to prevent quid pro quo corruption; independent expenditures, even by corporations, cannot be limited.

1. Contribution limits are valid if closely drawn to prevent quid pro quo corruption or its appearance (Buckley)
2. Independent expenditures cannot be limited, including by corporations (Citizens United)
3. Aggregate limits on a donor's total contributions are invalid (McCutcheon)

Exceptions: Austin (1990) allowed limits on corporate independent expenditures; Citizens United overruled it · Disclosure requirements are reviewed under exacting scrutiny

Traditional rule: Austin (1990): corporate independent expenditures may be limited to stop the distorting effect of corporate wealth
Modern trend: Citizens United (2010): independent expenditures cannot be limited, even by corporations

Incitement: Brandenburg

Advocating force or lawbreaking is unprotected only if it is directed to inciting imminent lawless action and is likely to produce it.

1. Speech advocating force or lawbreaking
2. Directed to inciting or producing imminent lawless action
3. Likely to incite or produce such action

Exceptions: Abstract advocacy of lawbreaking, even of violence, is protected (Hess v. Indiana) · Brandenburg replaced the 'clear and present danger' test

True threats and fighting words

True threats are unprotected, but a prosecution needs at least recklessness; fighting words must be personal and face to face, and offense alone never suffices.

1. True threat: a serious expression of intent to commit unlawful violence against a person or group
2. The speaker consciously disregarded a substantial risk of the words being seen as threatening violence (Counterman)
3. Fighting words: personally abusive face-to-face epithets likely to provoke immediate violence (Chaplinsky)

Exceptions: An objective reasonable-person standard alone is not enough (Counterman, 2023) · Offensive speech is protected: a jacket with a vulgar slogan opposing the draft (Cohen v. California) · Cross burning done with intent to intimidate may be banned; a presumption of intent from the act alone cannot (Virginia v. Black)

Obscenity: the Miller test

Obscene only if all three Miller prongs are met: prurient by community standards, patently offensive under state law, no serious value (reasonable person).

1. Applying community standards, the average person finds the work, as a whole, appeals to the prurient interest
2. It depicts or describes sexual conduct, as defined by state law, in a patently offensive way
3. Taken as a whole, it lacks serious literary, artistic, political or scientific value, judged by a reasonable person

Exceptions: Private possession of obscene material at home is protected (Stanley v. Georgia) · Child pornography is unprotected whether or not obscene (Ferber), but virtual child pornography is protected (Ashcroft v. Free Speech Coalition) · Violent video games sold to minors are protected (Brown v. EMA) · Indecent but not obscene broadcasts may be regulated (Pacifica) · Age verification for sites with sexual material obscene to minors gets intermediate scrutiny, because it only incidentally burdens adults (Free Speech Coalition v. Paxton, 2025)

Commercial speech: Central Hudson

Truthful ads for lawful products get intermediate scrutiny: substantial interest, directly advanced, and no more extensive than necessary.

1. The speech concerns lawful activity and is not misleading
2. The asserted government interest is substantial
3. The regulation directly advances that interest
4. The regulation is not more extensive than necessary to serve it

Exceptions: Truthful price advertising of a lawful product cannot be banned to reduce consumption (44 Liquormart) · Factual, noncontroversial disclosures that are not unduly burdensome need only be reasonably related to the state's interest in preventing deception (Zauderer; NIFLA) · In-person solicitation by lawyers for pecuniary gain may be banned (Ohralik) · Content- and speaker-based burdens on commercial speech get heightened scrutiny (Sorrell)

Defamation and emotional distress: the First Amendment limits

Public figures must prove actual malice; private figures may use a lesser state standard, but presumed or punitive damages on public issues need it too.

1. A public official or public figure must prove a false statement made with actual malice (Sullivan)
2. A private figure may recover on a lesser fault standard, such as negligence, set by the state (Gertz)
3. Presumed or punitive damages on a matter of public concern also need actual malice (Gertz)
4. A public figure cannot recover for a parody without a false statement of fact and actual malice (Hustler)

Exceptions: Presumed and punitive damages on a private concern need no actual malice (Dun & Bradstreet) · Picketing on public issues near a funeral was protected against an emotional distress claim (Snyder v. Phelps) · The elements of defamation itself belong to the Torts unit

Public employees: Pickering, Connick, Garcetti

A public employee's speech is protected only if made as a citizen on a matter of public concern and the employee's interest outweighs the employer's.

1. The employee spoke as a citizen, not pursuant to official duties (Garcetti)
2. The speech addressed a matter of public concern (Connick)
3. The employee's interest in speaking outweighs the employer's interest in efficient service (Pickering)

Exceptions: Truthful sworn testimony outside ordinary job duties is protected (Lane v. Franks) · Patronage dismissals of non-policymaking employees violate the First Amendment (Elrod; Branti; Rutan)

Public school students: Tinker and its limits

Students keep their speech rights unless the speech substantially disrupts school; vulgar, school-sponsored and drug-promoting speech have their own rules.

1. Tinker: restrict only speech that would materially and substantially disrupt school activities or invade others' rights
2. Fraser: lewd, vulgar or plainly offensive speech at a school assembly may be punished
3. Hazelwood: school-sponsored speech may be restricted for legitimate pedagogical reasons
4. Morse: speech reasonably viewed as promoting illegal drug use at a school event may be restricted

Exceptions: Off-campus speech: school authority is diminished; a vulgar social media post by a student was protected (Mahanoy, 2021)

Prior restraint and licensing

A prior restraint carries a heavy presumption of invalidity, and a licensing scheme that gives an official unbridled discretion is invalid on its face.

1. Prior restraints on speech carry a heavy presumption of invalidity (Near; Pentagon Papers; Nebraska Press)
2. A licensing scheme giving an official unbridled discretion is facially invalid (Shuttlesworth; Forsyth County)
3. A content-neutral permit scheme needs narrow, objective standards (Thomas v. Chicago Park District)
4. A censorship scheme needs prompt judicial review, with the burden on the censor (Freedman)

Exceptions: A prior restraint is an order or law that stops speech before it occurs; punishing speech afterward is a different question · A person may challenge an unconstitutional licensing law without first applying for a permit (Shuttlesworth)

Vagueness and overbreadth

A vague law denies fair notice; an overbroad law is facially invalid if a substantial number of its applications are unconstitutional.

1. Vagueness: the law fails to give fair notice or invites arbitrary enforcement (Grayned; Coates)
2. Overbreadth: a substantial number of applications are unconstitutional compared with the legitimate sweep (Stevens)
3. A facial challenge requires assessing the full range of the law's applications (Moody v. NetChoice, 2024)

Exceptions: Overbreadth is 'strong medicine' used sparingly · A statute banning offers to provide or requests for child pornography was not overbroad (Williams)

The press

The press has no special privilege against subpoenas, but may publish truthful lawfully obtained information, and cannot be forced to print a reply.

1. No privilege to refuse to testify before a grand jury (Branzburg)
2. A right of access to criminal trials; closure needs an overriding interest and narrow tailoring (Richmond Newspapers)
3. Truthful, lawfully obtained information cannot be punished without a need of the highest order (Florida Star)
4. A newspaper cannot be compelled to publish a reply (Tornillo)

Exceptions: Broadcasters get less protection (Red Lion) · No access to prisons beyond the public's (Pell; Houchins) · Discriminatory taxes on the press are invalid (Minneapolis Star)

Freedom of association

The government cannot force disclosure of a group's members or donors without narrow tailoring, or force a group to admit members who change its message.

1. Compelled disclosure of members or donors needs exacting scrutiny and narrow tailoring (NAACP v. Alabama; Bonta)
2. Forced inclusion of unwanted members is invalid if it significantly affects the group's expression (Boy Scouts v. Dale)
3. The state may bar discrimination by large, commercial, nonexpressive associations (Roberts v. Jaycees)

Exceptions: Public employee union dues: no forced fees from nonmembers (Janus) · Political party and ballot rules are tested under Anderson-Burdick · A ban on anonymous campaign leaflets is invalid (McIntyre v. Ohio Elections Commission)

Establishment Clause: history and tradition, not Lemon

Establishment claims are judged by historical practices and understandings, with coercion and denominational preference still barred; Lemon is abandoned.

1. Is the practice consistent with historical practices and understandings of the Establishment Clause?
2. Does it coerce participation in a religious exercise, especially in public schools?
3. Does it prefer one denomination over others (strict scrutiny)?

Exceptions: Lemon's purpose, effect and entanglement test was abandoned (Kennedy v. Bremerton, 2022) · Legislative prayer fits the historical tradition (Town of Greece v. Galloway) · A longstanding cross war memorial on public land may stand (American Legion)

Traditional rule: Lemon: secular purpose, primary effect, no excessive entanglement
Modern trend: Historical practices and understandings, with coercion still barred (Kennedy v. Bremerton)

School prayer and denominational preference

State-sponsored school prayer is barred as coercive, a coach's private prayer is protected, and preferring one denomination triggers strict scrutiny.

1. State-sponsored prayer or Bible reading in public schools is invalid, even if voluntary (Engel; Schempp)
2. Clergy-led prayer at a public school graduation is coercive (Lee v. Weisman)
3. Student-led, school-sponsored prayer before football games is invalid (Santa Fe v. Doe)
4. A law that prefers one denomination over others gets strict scrutiny (Larson)

Exceptions: A coach's private, personal prayer at midfield after games is protected (Kennedy v. Bremerton) · Private student religious speech is protected like other private speech

Religious displays

Displays are judged by history and context: a monument among many on state grounds or a longstanding memorial may stand. Classroom posters are contested.

1. Ten Commandments on classroom walls: struck in Stone v. Graham (1980), not overruled
2. A Ten Commandments monument among others on state capitol grounds: valid (Van Orden)
3. A longstanding monument judged by history and context may stand (American Legion)
4. A crèche within a larger secular holiday display: valid (Lynch)

Exceptions: Stone v. Graham has not been overruled by the Supreme Court, but a divided en banc Fifth Circuit (Apr. 2026) held it no longer controls after Kennedy and upheld Texas's classroom-display law; a cert petition is pending (No. 26-257) · McCreary County (2005) struck a courthouse display for religious purpose under Lemon, which Kennedy abandoned: know the result, not the test · A crèche alone on a courthouse staircase was invalid, while a menorah beside a tree and a sign saluting liberty was valid (County of Allegheny, 1989; decided under the endorsement test, which Kennedy abandoned: know the results)

Aid to religious schools and institutions

Neutral aid reaching religious schools through private choice is valid, and a state may not exclude religious schools from a benefit for being religious.

1. Neutral aid reaching religious schools through genuine private choice is valid (Zelman)
2. No exclusion from a general public benefit for religious status (Trinity Lutheran; Espinoza) or use (Carson v. Makin)
3. A state may decline to fund a devotional theology degree (Locke v. Davey)

Exceptions: Property tax exemptions for churches are valid (Walz) · Laws banning evolution or requiring creationism are invalid (Epperson; Edwards; decided under Lemon-era purpose analysis: know the results, not the test)

Free Exercise: Smith, and when it flips to strict scrutiny

A neutral, generally applicable law needs no religious exemption; a law that targets religion or has comparable secular exceptions gets strict scrutiny.

1. Is the law neutral and generally applicable?
2. Yes: rational basis review, and no religious exemption is required (Smith)
3. No (it targets religion or has discretionary or comparable exceptions): strict scrutiny (Lukumi; Fulton; Tandon)

Exceptions: Official hostility to religion in applying a law violates the Clause (Masterpiece Cakeshop) · A system of discretionary exceptions means the law is not generally applicable (Fulton) · Systems of individualized exemptions, like the unemployment benefits denied for refusing Saturday work, still get strict scrutiny (Sherbert) · Hybrid claims: free exercise joined with another right, such as parents' right to direct their children's upbringing, still get strict scrutiny (Yoder, as explained in Smith; Mahmoud, 2025)

Ministers, sincerity, religious tests and statutes

Ministers cannot sue their churches for employment discrimination, courts ask only whether a belief is sincere, and RFRA and RLUIPA are statutes.

1. The ministerial exception bars employment suits by ministers against their religious employers (Hosanna-Tabor)
2. Courts ask whether a belief is sincerely held, not whether it is true (Ballard; Thomas)
3. No religious test for public office (Torcaso; McDaniel v. Paty)
4. RFRA and RLUIPA are statutes, not constitutional rules (Hobby Lobby; Holt v. Hobbs)

Exceptions: RFRA and RLUIPA protect religious exercise beyond the constitutional minimum, but only as the statutes provide · RFRA binds only the federal government: as applied to the states it exceeded Congress's section 5 power (City of Boerne v. Flores); RLUIPA reaches state prisons and land-use rules through the Spending and Commerce powers · The sincerity inquiry does not ask whether the belief is true, reasonable or shared by the denomination

Goods or not? The first move in every Contracts question

Goods take UCC Article 2; services, land and employment take the common law. A mixed deal follows its predominant purpose.

1. Ask whether the subject is movable goods (UCC 2-105)
2. Mixed deal: decide whether goods or services predominate
3. Goods: Article 2, supplemented by the common law (UCC 1-103(b))
4. Services, land, employment: common law

Common law: Governs services, land, employment and intangibles: the mirror image rule, the pre-existing duty rule and substantial performance live here.
UCC Article 2: Governs transactions in goods: 2-207 acceptance, modification without consideration, perfect tender and the Code remedies live here.

Offer and the objective theory

An offer is a manifestation of willingness to bargain on definite terms, judged objectively; ads and price quotes are usually invitations, not offers.

1. Manifestation of willingness to enter a bargain on definite terms
2. Justifies the other party in understanding that assent will conclude it
3. Judged objectively by what a reasonable person would understand
4. Ads and quotes are invitations unless definite, with nothing left to negotiate

Exceptions: An ad that says 'first come, first served' with a definite quantity and price is an offer · A reward is an offer to the public, accepted by performance · The offeror is master of the offer: it may set the mode, time and medium

Merchant status (UCC 2-104)

A merchant deals in goods of the kind or holds out special skill in the practices involved; the goods-specific rules need a seller who deals in those goods.

1. Deals in goods of the kind involved
2. Or, by occupation, holds himself out as having knowledge or skill peculiar to the practices or goods involved
3. Or employs an agent or broker who does

Exceptions: Business-practice rules (2-201(2), 2-205, 2-207, 2-209): almost anyone in business counts as a merchant (Official Comment 2) · Goods-specific rules (2-314 merchantability, 2-312(3) infringement): the seller must deal in goods of that kind · 'Between merchants' means both parties are chargeable with a merchant's knowledge or skill (2-104(3))

How an offer dies (DR. CLR)

An offer ends by death or incapacity, rejection, counteroffer, lapse or revocation; options, firm offers and begun unilateral performances survive revocation.

1. Death or incapacity of the offeror or offeree, with no notice needed
2. Rejection by the offeree
3. Counteroffer, which rejects the original offer
4. Lapse of time, stated or reasonable
5. Revocation by the offeror, effective on receipt

Exceptions: An option contract, a UCC 2-205 firm offer, reliance under §87(2) and a begun unilateral performance (§45) cannot be revoked · A mere inquiry ('is that your best price?') is not a rejection or a counteroffer (Stevenson v. McLean); 'I'll pay $300' is a counteroffer · A grumbling acceptance is still an acceptance

Acceptance: timing, mode and performance

Acceptance by an authorized medium is effective when sent; revocation, rejection and option acceptances are effective when received; silence is not acceptance.

1. Acceptance by mail or another authorized medium: effective when sent
2. Revocation and rejection: effective when received
3. Acceptance of an option: effective when received
4. An offer for a performance: beginning it creates an option (§45)
5. Silence is not acceptance, with narrow exceptions

Exceptions: The offer may fix when acceptance takes effect · If a rejection is sent first and an acceptance second, the acceptance is effective only if received before the rejection (§40) · Silence accepts if the offeree takes services knowing compensation is expected, or by a prior course of dealing

Accepting an order for goods: common law versus 2-206

At common law acceptance must mirror the offer; under 2-206 prompt shipment of goods, conforming or not, accepts, and a nonconforming one also breaches.

1. An offer invites acceptance in any reasonable manner and medium
2. An order for prompt shipment is accepted by a prompt promise or prompt shipment
3. Shipping conforming or nonconforming goods is an acceptance
4. Nonconforming shipment is also a breach
5. Unless the seller seasonably notifies that it is only an accommodation

Common law: Acceptance must mirror the offer (mirror image rule); a response that varies the terms is a counteroffer.
UCC Article 2: Shipment of conforming or nonconforming goods against a prompt-shipment order is an acceptance; shipping nonconforming goods also breaches unless sent as an accommodation (2-206(1)(b)).

Consideration: the bargained-for exchange

Each side's promise or performance must be the price of the other's; the court never weighs adequacy, and past help or a gift is not consideration.

1. A promise or performance sought by the promisor in exchange for her promise
2. Given by the promisee in exchange for it
3. Bargained for, not past or gratuitous
4. Adequacy is not examined, but a sham or illusory exchange fails

Exceptions: Past consideration and bare moral obligation do not count · Forbearance from a claim honestly believed to be valid is consideration (§74) · Binding without new consideration: a new promise to pay a debt barred by limitations (§82), and, in a minority of courts that follow Rest. (2d) §86, a promise made in recognition of a material benefit previously received

Majority rule: Past consideration and moral obligation do not support a promise: the help was not bargained for.
Minority rule: A promise made in recognition of a material benefit previously received is binding to the extent necessary to prevent injustice (Rest. (2d) §86).

Illusory promises, output and requirements contracts

A promise that commits the promisor to nothing is illusory; output and requirements contracts are real because of the good-faith limit on quantity (2-306).

1. A promise that leaves performance wholly to the promisor's will is illusory
2. A good-faith duty, or a termination right exercisable only on notice, makes a promise real
3. Quantity under an output or requirements contract is what occurs in good faith (2-306(1))
4. No quantity unreasonably disproportionate to a stated estimate or to normal prior output or requirements
5. Exclusive dealing: best efforts to supply and to promote (2-306(2))

Modifying a contract: common law versus Article 2

Common law: a modification needs new consideration or unanticipated circumstances (§89); Article 2: no consideration, but good faith (2-209(1)).

1. Decide whether the contract is for goods
2. Common law: new consideration, or fair and equitable in view of unanticipated circumstances (§89)?
3. Article 2: no consideration needed, but was the modification made in good faith?
4. A signed no-oral-modification clause bars a bare oral change, but a failed attempt can operate as a waiver (2-209(2), (4))
5. If the modified contract is within the statute of frauds, is there a writing (2-209(3))?

Exceptions: Pre-existing duty escapes at common law: something new on either side, a good-faith dispute, mutual rescission and a new contract, or unanticipated circumstances (§89) · Waiver of a term can be retracted for future performance on reasonable notice unless the other party materially changed position in reliance (2-209(5))

Common law: A modification of an executory contract needs new consideration, unless it is fair and equitable in view of circumstances not anticipated when the contract was made (§89).
UCC Article 2: An agreement modifying a contract for the sale of goods needs no consideration to be binding, but must meet the test of good faith (2-209(1)).

Promissory estoppel (§90)

A promise that should induce definite, substantial reliance, and does, binds if injustice can be avoided only by enforcement; the remedy may be limited.

1. A clear promise
2. The promisor should reasonably expect definite and substantial action or forbearance
3. The promisee actually and reasonably relies
4. Injustice can be avoided only by enforcing the promise

Exceptions: The remedy may be limited as justice requires: often reliance damages, sometimes expectation · Charitable subscriptions and marriage settlements bind without proof of reliance (§90(2)) · A subcontractor's bid relied on by a general contractor is irrevocable (§87(2)): it binds the sub, not the general contractor

Restitution and quasi-contract

Restitution returns the benefit conferred, valued to the defendant, when keeping it unpaid would be unjust; under §374 a breaching party gets the net benefit.

1. A benefit conferred on the defendant
2. The defendant appreciated or retained it
3. Retention without payment would be unjust: not a volunteer or officious helper
4. Measured by the benefit to the defendant, not the plaintiff's cost

Exceptions: Emergency services to an unconscious person are recoverable at reasonable value · Under Rest. (2d) §374 a party in breach recovers the benefit conferred, less the other party's damages; some states deny this to a willful breacher · A contract unenforceable under the statute of frauds or avoided for mistake or fraud leaves restitution available

Open terms and gap-fillers (UCC 2-204(3), 2-305 to 2-311)

A sale of goods does not fail for indefiniteness if the parties meant to contract and a court can give a remedy; the Code fills price, place, time, payment.

1. The parties intended to make a contract, shown in any manner sufficient to show agreement
2. There is a reasonably certain basis for giving an appropriate remedy
3. Price left open: a reasonable price at the time for delivery
4. Place, time and payment: the seller's place of business, a reasonable time, payment on receipt

Exceptions: If the parties intend not to be bound unless the price is fixed or agreed, and it is not, there is no contract (2-305(4)) · A price to be fixed by one party must be fixed in good faith (2-305(2))

Common law: Essential terms (parties, subject matter, price, quantity, time) must be reasonably certain to give a remedy; an agreement to agree on a material term fails.
UCC Article 2: A contract does not fail for indefiniteness if the parties intended one and a reasonably certain basis for a remedy exists (2-204(3)).

The firm offer (UCC 2-205)

A merchant's signed written assurance that an offer will stay open is irrevocable without consideration for the time stated, never more than three months.

1. An offer to buy or sell goods
2. Made by a merchant
3. In a signed writing
4. That by its terms gives assurance it will be held open

Exceptions: Irrevocable for the time stated, or a reasonable time if none is stated, but never more than three months · If the assurance is on a form supplied by the offeree, the offeror must separately sign it · After three months the offer survives as an ordinary revocable offer, unless supported by consideration

2-207(2): additional terms (O-M-N)

Between merchants, an additional term joins the contract unless the offer limits acceptance, the term materially alters it, or objection is given: O-M-N.

1. A definite, seasonable acceptance not expressly made conditional forms a contract
2. An additional term is only a proposal
3. Between merchants it joins the contract unless the offer expressly limits acceptance to its terms
4. Or the term materially alters the contract (surprise or hardship)
5. Or notice of objection has been given or is given within a reasonable time

Exceptions: Materially alter: a clause negating standard warranties, a right to cancel, most arbitration clauses · Not material: interest on overdue invoices, a reasonable limit on the time for complaints, a reasonable limit on remedy · If a non-merchant is a party, additional terms stay proposals unless assented to

2-207: different terms and the knockout rule

Where the offer and acceptance contain conflicting terms on the same subject, the majority knocks both out and lets the UCC gap-filler supply the term.

1. The offer addresses a subject and the acceptance contradicts it: a different term
2. Majority: the conflicting terms knock each other out
3. The UCC gap-filler supplies the term
4. Minority views: treat it as an additional term, or let the offeror's term control

Exceptions: Contract by conduct under 2-207(3) is built the same way: agreed terms plus gap-fillers

Majority rule: The conflicting terms cancel each other and a gap-filler supplies the term (the knockout rule).
Minority rule: A different term is treated like an additional term under 2-207(2), or the offeror's term controls.

The statute of frauds for goods (UCC 2-201)

A sale of goods for $500 or more needs a writing, signed by the party to be charged, indicating a contract and stating a quantity; SAMP lists the exceptions.

1. The contract is for the sale of goods for $500 or more
2. A writing sufficient to indicate a contract for sale has been made
3. Signed by the party against whom enforcement is sought
4. States a quantity; other terms may be omitted or misstated

Exceptions: Specially manufactured goods not suitable for sale to others, with manufacture substantially begun · Admission in pleading, testimony or otherwise in court (to the quantity admitted) · Merchant's written confirmation, received and not objected to in writing within 10 days · Payment made and accepted, or goods received and accepted (only to that extent) · A signature can be electronic: a typed name or click adopted with intent to sign counts, and an email can be the writing (1-201(b)(37); E-SIGN, 15 U.S.C. §7001; UETA)

The statute of frauds: MY LEGS

Marriage, a Year, Land, Executor, Goods and Surety need a writing signed by the party to be charged; without one the contract is unenforceable, not void.

1. Marriage: a promise made in consideration of marriage
2. Year: cannot be performed within one year of the making
3. Land: a sale or transfer of an interest in real property
4. Executor: an executor's personal promise to pay estate debts
5. Goods: a sale for $500 or more (UCC 2-201)
6. Surety: a promise to answer for another's debt or default

Exceptions: Year: ask whether performance is possible within a year, not whether it is likely; a lifetime contract can end by death within a year · Land part performance (majority): possession plus part payment or improvements; payment alone is not enough · Surety: the main-purpose rule takes a promise out of the statute when the promisor's own economic benefit is the main purpose · Unenforceable, not void: restitution and estoppel remain, and an e-signature or typed name can be a signature

Incapacity: minors, mental incapacity, intoxication

A minor may avoid a contract. Mental incapacity: avoidable if one could not understand, or could not act reasonably and the other side had reason to know.

1. A minor's contract is voidable at the minor's option
2. Disaffirmance during minority or within a reasonable time after
3. The minor returns what remains (majority); no liability for damage or depreciation
4. Necessaries: reasonable value, not the contract price
5. Ratification after majority by words or conduct

Exceptions: Mental illness or defect, cognitive prong: voidable if the person could not understand the nature and consequences of the transaction, whether or not the other party knew (§15(1)(a)) · Mental illness or defect, volitional prong: voidable if the person could not act reasonably in relation to the transaction and the other party had reason to know of the condition (§15(1)(b)) · Limit on avoidance: where the terms were fair and the other party was unaware, a court may limit or end avoidance to the extent performance or changed circumstances would make it unjust (§15(2)) · Under adjudication or guardianship: void in many states (the stem will say) · Intoxication: voidable only if the other party had reason to know the condition prevented understanding or reasonable action (§16)

Majority rule: A disaffirming minor returns what remains and owes nothing for use, damage or depreciation.
Minority rule: The 'benefit' rule: a disaffirming minor must account for the use of the goods and for damage or depreciation.

Duress and undue influence

Duress needs an improper threat that leaves no reasonable alternative; undue influence is unfair persuasion by a dominant or trusted party.

1. An improper threat
2. That leaves the victim no reasonable alternative
3. And induces the victim's assent
4. Undue influence instead: unfair persuasion in a confidential or dominating relationship

Exceptions: A threat to do what one has a legal right to do, such as sue on a valid claim, is not improper unless made in bad faith · A threat of criminal prosecution, or a bad-faith threat to breach to force a modification, is improper · Physical compulsion (a guided hand) makes the contract void; duress by threat makes it voidable

Mistake and misunderstanding

Mutual mistake about a basic assumption makes a deal voidable if the loser does not bear the risk; different meanings unknown to both mean no contract.

1. Mutual mistake: both mistaken about a basic assumption
2. The mistake has a material effect on the agreed exchange
3. The adversely affected party does not bear the risk of the mistake
4. Unilateral mistake also needs: unconscionable enforcement, or the other party knew or had reason to know of the mistake, or caused it (§153)

Exceptions: A party bears the risk if the agreement allocates it, if she acted despite limited knowledge (conscious ignorance), or if the court allocates it (§154) · Misunderstanding: the parties attach different meanings to a material term and neither knows the other's: no contract (§20) · A writing that misstates an agreed term because of a scrivener's error is reformed

Misrepresentation, concealment and nondisclosure

A fraudulent or material misrepresentation that induces assent and is justifiably relied on makes a contract voidable; puffery and bare silence do not count.

1. An assertion not in accord with the facts
2. Fraudulent (knowing or reckless) or material
3. That induces the other party's assent
4. Reliance that is justifiable

Exceptions: Fraud in the factum (no reasonable opportunity to learn what is signed) makes the contract void; fraud in the inducement makes it voidable · Opinion and sales talk (puffery) are generally not actionable · Silence is a misrepresentation only for half-truths, fiduciary relationships, or a duty to disclose known latent defects; active concealment counts as an assertion · UCC 2-721: remedies for fraud include all remedies for non-fraudulent breach

Unconscionability, illegality and public policy

A court may refuse to enforce an unconscionable contract or clause judged at formation; illegal bargains are generally left where the parties lie.

1. Procedural unfairness: surprise, adhesion, no meaningful choice
2. Substantive unfairness: grossly one-sided terms or price
3. Judged at the time the contract was made
4. The court may refuse to enforce the contract, strike the clause, or limit it (2-302)

Exceptions: Most courts want both kinds of unfairness, on a sliding scale · Illegal bargain: no enforcement, though a protected party, a withdrawing party and severable terms are exceptions · An unlicensed provider cannot recover if the licensing law protects the public · A covenant not to compete must be ancillary, reasonable in time, area and scope, and protect a legitimate interest

Traditional rule: A court refuses to enforce an overbroad covenant not to compete at all.
Modern trend: A court enforces an overbroad covenant to the extent it is reasonable (blue pencil or reformation).

The parol evidence rule

A writing adopted as the final word bars proof of earlier or simultaneous terms that contradict it, and, if complete and exclusive, consistent additions too.

1. Is there a writing adopted as the final expression of at least some terms (an integration)?
2. Is the evidence of a prior or contemporaneous agreement?
3. Is the writing completely or only partially integrated (a merger clause is strong evidence)?
4. Contradiction is barred; a consistent additional term is barred only if completely integrated
5. Does an exception apply?

Exceptions: Defenses: fraud, duress, mistake, illegality, incapacity · A condition on the effectiveness of the contract · Ambiguity (to interpret, not to contradict) · Later modifications, because the rule bars only prior and contemporaneous terms · Reformation, and collateral agreements outside the writing's scope

Common law: Evidence of usage and prior dealings comes in mainly to resolve ambiguity; a completely integrated writing bars consistent additional terms.
UCC Article 2: Course of performance, course of dealing and usage of trade explain or supplement even a final writing, with no threshold finding of ambiguity; consistent additional terms come in unless the writing is complete and exclusive (2-202).

Interpretation: what outranks what (UCC 1-303)

Express terms outrank course of performance, then course of dealing, then usage of trade; specific terms beat general ones and negotiated beat printed.

1. Express terms
2. Course of performance
3. Course of dealing
4. Usage of trade

Exceptions: Course of performance is repeated occasions for performance within this contract; course of dealing is prior transactions between the parties; usage is a regular practice in the trade · Ambiguity is construed against the drafter only as a last resort, and seldom between negotiating businesses · Specific over general; handwritten over typed over printed · Course of performance can show waiver or modification, subject to 2-209 (1-303(f); 2-208 in older enactments)

Good faith and implied terms (UCC 1-304, 1-201(b)(20))

Good faith is honesty in fact plus reasonable commercial standards of fair dealing, for everyone; at common law it cannot override an express term.

1. Every contract or duty within the UCC imposes good faith in performance and enforcement
2. Honesty in fact
3. And observance of reasonable commercial standards of fair dealing, for every party (1-201(b)(20))
4. The obligation cannot be disclaimed, though standards may be set if not manifestly unreasonable

Exceptions: At common law, an implied covenant of good faith cannot override an express term, such as an at-will termination right · Employment of indefinite duration is at will (subject to statute and public policy) · Gap-fillers: price, time, place, reasonable notice of termination (2-309(3))

Modern trend: Revised Article 1, 1-201(b)(20): honesty in fact and observance of reasonable commercial standards of fair dealing, for every party.
Traditional rule: Older Article 2 text, 2-103(1)(b): honesty in fact for everyone, but the fair-dealing standard for merchants only.

The warranties in a sale of goods

Express: affirmations in the basis of the bargain. Implied: title; merchantability from a merchant; fitness when the seller knows the purpose and you rely.

1. Express (2-313): affirmation, promise, description or sample that is part of the basis of the bargain
2. Title (2-312): good title and rightful transfer
3. Merchantability (2-314): merchant seller of goods of the kind; fit for ordinary purposes
4. Fitness (2-315): seller knows the particular purpose and the buyer relies on its skill; any seller

Exceptions: Puffery and opinion do not create an express warranty · Merchantability needs a merchant seller; fitness and express warranties do not · Warranties are cumulative; inconsistent ones: express displaces implied (other than fitness) · 2-318: the three alternatives extend warranties to third persons, and the stem states which one applies

Disclaiming warranties and notice of breach

Disclaim merchantability by naming it, conspicuously; fitness needs a conspicuous writing; 'as is' kills both; the buyer must notify the seller in time.

1. Merchantability: the disclaimer must mention 'merchantability' and, if written, be conspicuous
2. Fitness: the disclaimer must be in a conspicuous writing
3. 'As is' or 'with all faults' excludes all implied warranties
4. A disclaimer cannot defeat an express warranty
5. The buyer must notify the seller of breach within a reasonable time after discovery (2-607(3)(a))

Exceptions: Examination: no implied warranty for defects that a fair examination ought to have revealed, if the buyer examined or refused to examine · Implied warranties can also be excluded by course of dealing, course of performance or usage of trade · Conspicuous means a reasonable person ought to have noticed it, such as capitals or contrasting type

Conditions and their excuse

An express condition must occur exactly; a constructive one needs substantial performance; courts excuse conditions for waiver, prevention or forfeiture.

1. A condition is an uncertain event that must occur before a duty arises
2. An express condition requires strict compliance; a constructive condition, substantial performance
3. Doubtful language is read as a promise, not a condition
4. Excuse by waiver or estoppel, or by prevention or hindrance
5. Excuse to avoid disproportionate forfeiture when the condition is not a material part of the exchange (§229)

Exceptions: Waiver of a condition can be retracted for future performance on reasonable notice unless the other party has relied · Satisfaction clauses: an objective, reasonable-person standard for commercial or operative fitness, and a good-faith subjective standard for taste or personal judgment · A breach of the implied duty to cooperate excuses a condition

Material breach and substantial performance

A material breach excuses the other party's performance; substantial performance earns the price minus damages; for goods the perfect tender rule is stricter.

1. Decide whether the breach is material (§241): benefit lost, adequacy of damages, forfeiture, cure, good faith
2. Material: the other party may suspend, then terminate and sue for total breach
3. Minor: damages only; the other party must still perform
4. Substantial performance earns the price less damages for the deviation
5. Damages: cost of repair, unless that is economic waste, then diminution in value

Exceptions: Divisible contract: where the performances are apportioned into corresponding pairs, a party who has fully performed a pair is owed its agreed price, less the other side's damages (§240) · Willful breach: states divide on whether a deliberate breacher may rely on substantial performance, and the stem says which approach applies

Common law: A party who has substantially performed, in good faith, recovers the price minus damages for the defect (substantial performance).
UCC Article 2: In a single-delivery sale of goods, the buyer may reject if the goods or tender fail in any respect to conform (perfect tender, 2-601), subject to cure and the installment rules.

Anticipatory repudiation and adequate assurance

An unequivocal refusal lets the other side wait or sue until retraction; reasonable insecurity allows a demand for assurance; 30 days of silence is repudiation.

1. An unequivocal statement, or a voluntary act that makes performance impossible
2. A bilateral, executory contract
3. The aggrieved party may suspend and await a reasonable time, or resort to remedies now
4. Retraction is possible until the aggrieved party cancels, materially changes position or says it treats the repudiation as final
5. Reasonable grounds for insecurity: demand adequate assurance; none within a reasonable time, not over 30 days, is a repudiation (2-609)

Exceptions: Statements of doubt or a good-faith request to modify are not repudiations · No anticipatory repudiation of a unilateral money debt due in installments after the other side has fully performed (majority) · The aggrieved party cannot run up damages by continuing to perform after repudiation

Common law: A party with reasonable grounds for insecurity may demand assurance under Restatement §251, a rule many courts follow, and may suspend performance.
UCC Article 2: A party with reasonable grounds for insecurity may demand adequate assurance in writing and, if commercially reasonable, suspend; failure to give assurance within a reasonable time, not exceeding 30 days, is repudiation (2-609).

Impracticability, frustration and force majeure

A supervening event that the parties assumed would not happen can excuse performance; more cost alone does not, and frustration needs a purpose both knew.

1. A supervening event, not the party's fault
2. Whose nonoccurrence was a basic assumption of the contract
3. Makes performance impracticable (§261, UCC 2-615), or frustrates a principal purpose known to both (§265)
4. The party did not assume the risk
5. Effect: duties are discharged or suspended, with restitution

Exceptions: Increased cost alone, even a large one, does not excuse · UCC 2-615: a seller with partial capacity must allocate fairly and notify seasonably · UCC 2-613: casualty to goods identified when the contract was made, before risk passes, avoids the contract (total) or lets the buyer accept with a price allowance (partial) · Force majeure clauses are enforced as written; a catch-all is read in light of the listed events

Discharging a duty: accord, substituted contract, novation, rescission, release

An executory accord only suspends the old duty; a substituted contract discharges it at once; a novation also swaps a party and frees the old one.

1. Accord: agreement to accept a different performance in satisfaction of an existing duty
2. Executory accord: the original duty is suspended until the accord is performed
3. Satisfaction: performance of the accord discharges the original duty
4. Substituted contract: immediately discharges the original duty
5. Novation: a new party is substituted with the obligee's consent and the old party is discharged

Exceptions: If the accord is breached, the creditor may sue on the original duty or on the accord · Mutual rescission of an executory contract is supported by the mutual release of duties · Under the UCC a claim for breach may be discharged by a signed written waiver or renunciation, without consideration (1-306)

Perfect tender, installments and cure

Buyers may reject goods failing in any respect; installments need substantial impairment; sellers may cure within the contract time or on reasonable grounds.

1. Single delivery: if goods or tender fail in any respect, the buyer may reject all, accept all, or accept any commercial units and reject the rest (2-601)
2. Installment contract: reject only for a nonconformity that substantially impairs the installment and cannot be cured (2-612(2))
3. The seller may cure within the contract time on seasonable notice (2-508(1))
4. After the time has run, cure only if the seller reasonably believed the tender would be acceptable (2-508(2))
5. Rejection must be within a reasonable time, with seasonable notice (2-602)

Exceptions: A nonconformity that substantially impairs the value of the whole installment contract is a breach of the whole (2-612(3)) · A failure to give notice of shipment is ground for rejection only if material delay or loss follows (2-504) · A buyer who fails to state a defect that reasonable inspection would have revealed cannot rely on it if the seller could have cured it (2-605)

Common law: A party may refuse performance only for a material breach; substantial performance is enough to earn the price.
UCC Article 2: In a single-delivery sale of goods the buyer may reject if the goods or tender fail in any respect to conform (2-601), subject to cure; installment contracts need substantial impairment (2-612).

Rejection, acceptance and revocation of acceptance

Reject promptly with notice before acceptance; once you accept, you pay and notify, and may revoke only for substantial impairment on specific grounds.

1. Rejection: within a reasonable time after delivery, with seasonable notice (2-602)
2. After rejecting, hold the goods with reasonable care and do not exercise ownership
3. Acceptance: after a reasonable opportunity to inspect, the buyer signifies, fails to reject, or acts inconsistently with the seller's ownership (2-606)
4. After acceptance: pay at the contract rate and notify the seller of breach within a reasonable time (2-607)
5. Revocation: substantial impairment; accepted on the assumption of cure or without discovery because of difficulty or the seller's assurances; within a reasonable time, before substantial change, with notice (2-608)

Exceptions: A buyer who rightfully rejects or revokes has a security interest in the goods in its possession for payments made and expenses (2-711(3)) · A merchant buyer must follow the seller's reasonable instructions on rejected goods and may sell perishables for the seller's account (2-603) · Acceptance does not bar damages: the buyer keeps its remedy for breach if it gives notice

Risk of loss (UCC 2-509, 2-510)

Risk follows the delivery terms and the seller's status, not title; a breach by the seller leaves risk on the seller until cure or acceptance.

1. Title does not decide risk of loss (2-401)
2. Carrier, shipment contract: risk passes when the goods are duly delivered to the carrier
3. Carrier, destination contract: risk passes when the goods are duly tendered at destination
4. Goods in a bailee's hands: on receipt of a negotiable document or acknowledgment of the buyer's right
5. Otherwise: merchant seller, on the buyer's receipt; non-merchant seller, on tender
6. A nonconforming tender that gives a right of rejection leaves risk on the seller until cure or acceptance

Exceptions: F.O.B. place of shipment sets a shipment contract; F.O.B. place of destination sets a destination contract (2-319) · An agreement of the parties can change the allocation of risk · Casualty to goods identified when the contract was made, before risk passes, avoids the contract (total loss) or lets the buyer accept with an allowance (2-613)

Identification, insolvent buyers and reclamation

Identification gives the buyer an insurable interest; an unpaid seller who finds the buyer insolvent may reclaim credit goods within ten days of receipt.

1. Identification of goods to the contract gives the buyer a special property and insurable interest (2-501)
2. The seller may refuse delivery except for cash if the buyer is insolvent (2-702(1))
3. A seller who delivered on credit to a buyer insolvent when it received them may reclaim by demand within 10 days of receipt
4. The 10 days does not apply if the buyer misrepresented solvency in writing within 3 months before delivery
5. A buyer in the ordinary course of business or a good-faith purchaser takes free of reclamation

Exceptions: Stoppage in transit: for any goods if the buyer is insolvent; for carload or truckload lots if the buyer repudiates or fails to pay (2-705) · A seller who reclaims goods cannot also use other remedies as to those goods

Expectation damages and their limits

Expectation = loss in value + other loss − cost avoided − loss avoided; foreseeability, certainty and mitigation are the three filters.

1. Loss in value of the performance promised
2. Plus other loss: incidental and consequential damages
3. Minus the cost or other loss avoided by not having to perform
4. Minus the loss avoided through reasonable mitigation

Exceptions: Foreseeable at the time of contracting, in the ordinary course or from special circumstances the breacher had reason to know (§351) · Proved with reasonable certainty; a new business's lost profits can qualify (§352) · Mitigation: only comparable work or a reasonable substitute; the lost-volume seller still recovers lost profit (2-708(2)) · Emotional distress and punitive damages are generally not recoverable for breach of contract

Liquidated damages, deposits and limits on remedies

A damages clause stands if reasonable and the loss is hard to prove; larger sums are penalties; a breaching buyer's deposit is kept only to 20% or $500.

1. The sum is reasonable in light of anticipated or actual loss
2. Loss is difficult to prove, or another remedy is inconvenient or unavailable
3. An unreasonably large sum is void as a penalty (2-718(1))
4. With no valid clause, a breaching buyer recovers its payments above the smaller of 20% of the price or $500 (2-718(2))
5. A limited remedy that fails of its essential purpose revives the Code remedies (2-719(2))

Exceptions: Excluding consequential damages is allowed unless unconscionable; for injury to the person from consumer goods it is prima facie unconscionable (2-719(3)) · The seller's right to keep the deposit is subject to offset for proven damages · The UCC limitations period is four years, reducible by agreement to not less than one year (2-725)

Specific performance, injunction and reformation

Equity orders performance if damages fall short: land and unique goods yes, personal services no; reformation corrects a writing that misstates the deal.

1. Damages are inadequate
2. Terms are definite and enforceable without constant supervision
3. Land and unique goods qualify, as do other proper circumstances (2-716(1))
4. Personal services cannot be compelled; a negative injunction may bar unique services from a rival
5. Reformation: a writing misstates an agreed term by mutual or scrivener's mistake, proved by clear and convincing evidence

Exceptions: The parol evidence rule does not bar proof for reformation · The buyer may also recover goods by replevin if cover is unavailable after reasonable effort (2-716(3)) · Rescission as a remedy requires prompt action and restoration of the status quo

The seller's remedies (UCC 2-703 to 2-710)

A seller facing a buyer's breach may withhold, resell, claim market or lost-profit damages, or, only in narrow cases, sue for the price.

1. Withhold delivery, or stop delivery in transit (2-705)
2. Resell and recover contract price less resale price plus incidental damages (2-706)
3. Or recover contract price less market price plus incidentals less expenses saved (2-708(1))
4. Or, if those are inadequate, lost profit including reasonable overhead (2-708(2))
5. Sue for the price only for accepted goods, goods lost after risk passed, or identified goods that cannot be resold (2-709)

Exceptions: A resale must be in good faith and commercially reasonable, with reasonable notice to the buyer for a private sale · Incidental damages cover stopping delivery, transport, care and custody (2-710)

The buyer's remedies (UCC 2-711 to 2-717)

A buyer may cancel and recover the price paid, then cover or claim market damages, plus extras; for accepted goods, value as warranted less value as accepted.

1. Cancel and recover so much of the price as has been paid
2. Cover: cost of substitute goods less contract price, plus incidentals (2-712)
3. Or market damages: market price less contract price (2-713)
4. Accepted goods: value as warranted less value as accepted (2-714(2))
5. Incidental and consequential damages, if foreseeable and not preventable by cover (2-715)

Exceptions: Failure to cover does not bar other remedies, but consequential damages that cover could have prevented are not recoverable · The buyer may deduct damages from the price still due on notice (2-717) · The buyer must notify the seller of breach within a reasonable time (2-607(3)(a))

Third-party beneficiaries

An intended beneficiary may sue the promisor, subject to the promisor's defenses; an incidental one may not; rights vest on reliance, assent or suit.

1. Intended beneficiary: recognising her right effectuates the parties' intent
2. Performance satisfies a money debt the promisee owes her, or the promisee intends to give her the benefit
3. An incidental beneficiary has no enforceable right
4. The promisor may assert against her defenses it has against the promisee
5. Her rights vest on material reliance, suit, or manifested assent (§311)

Exceptions: Creditor and donee labels survive as shorthand for the two kinds of intended beneficiary · A donee beneficiary may sue the promisor; she cannot sue the promisee for the gift · UCC 2-318 extends warranties to specified persons, the alternative named by the stem

Modern trend: Rights vest on material reliance, suit or manifested assent, and until then the promisor and promisee may modify or discharge them (Restatement (Second) §311).
Traditional rule: Restatement (First): a donee beneficiary's rights vest when the contract is made; a creditor beneficiary's vest on a material change of position or suit.

Assignment of rights and delegation of duties

An assignee steps into the assignor's shoes, defenses and all; a delegator never leaves; under 2-210 a ban on assigning 'the contract' bars only delegation.

1. Assignment: present transfer of a right; the assignee takes subject to the obligor's defenses
2. Payment to the assignor before notice discharges the obligor; after notice it does not
3. A gratuitous assignment is revocable unless supported by a writing, token, reliance or performance
4. A duty may be delegated unless personal or barred by the contract
5. The delegator remains liable unless the obligee agrees to a novation
6. An assignment of 'the contract' assigns rights and delegates duties (2-210(5); (4) in pre-1999 texts)

Exceptions: A clause barring assignment of 'the contract' bars only delegation (2-210(4); (3) in pre-1999 texts) · An anti-assignment clause that says 'void' can invalidate the assignment in many jurisdictions · A right to damages for breach of the whole contract is assignable despite a ban (2-210(2))

Majority rule: Successive assignees: the first assignee in time prevails (Restatement §342).
Minority rule: Successive assignees: the first to give notice to the obligor prevails (the English rule).

Murder and malice aforethought: the four roads

Malice has four roads: intent to kill, intent to inflict serious bodily harm, a depraved heart, or a death during a dangerous felony.

1. Intent to kill
2. Intent to inflict serious bodily harm
3. Depraved heart: conscious disregard of a very high risk to human life
4. A death caused during a dangerous felony (felony murder)

Exceptions: Malice needs neither ill will nor forethought: it is a term of art · Intent to kill may be inferred from the use of a deadly weapon aimed at a vital part of the body · A killing without malice is manslaughter at most

Depraved-heart murder (extreme recklessness)

Depraved heart is awareness of a very high risk of death plus extreme indifference to life. 'I only meant to scare them' does not stop it.

1. An act that creates a very high risk of death to others
2. The defendant is aware of the risk and consciously disregards it
3. Extreme indifference to the value of human life
4. A death results

Exceptions: No intent to kill or injure is needed: intending only to frighten does not defeat it · Gross negligence without awareness of the risk is involuntary manslaughter, not murder · Conscious disregard of a substantial risk that falls short of a very high risk is involuntary manslaughter, not murder

Degrees of murder: first and second

Statutes make premeditated, deliberate murder first degree (also poison, lying in wait, torture, listed felonies); all other murder is second degree.

1. Unlawful killing with malice (murder)
2. Premeditation: the defendant actually thought about the killing beforehand
3. Deliberation: a cool, reflective weighing of the decision
4. Premeditated and deliberate murder is first degree; every other murder is second degree

Exceptions: Statutes usually make a killing by poison, lying in wait or torture, or during an enumerated felony, first degree too · Planning, motive and a calculated manner of killing are the usual proof of premeditation · Rage does not rule out premeditation: a furious person can still plan · Courts divide on how brief the reflection may be; the stem says which rule applies

How long must premeditation take?

Premeditation needs actual reflection before the killing; courts split on how brief it may be. The stem says which rule applies.

1. Intent to kill
2. Formed before the fatal act
3. Some actual reflection on the decision, however brief the stem's rule allows

Exceptions: How courts infer reflection: planning activity, motive and a calculated manner of killing · Where appreciable reflection is required, a purely impulsive killing is not premeditated · Where no appreciable time is required, no time is too short: the intent may be formed and acted on almost at once

Majority rule: No appreciable time is required: the intent to kill may be formed and acted on almost instantly.
Minority rule: Some appreciable time for actual reflection is required, usually shown by planning, motive or the manner of killing.

Voluntary manslaughter: heat of passion

Passion reduces murder to manslaughter only if the provocation was adequate, the defendant was actually provoked, and neither the law nor he had cooled off.

1. Adequate provocation: enough to arouse sudden, intense passion in a reasonable person
2. Actual provocation: the defendant was in fact provoked
3. No reasonable cooling time: too little time for a reasonable person to cool
4. No actual cooling: the defendant did not in fact cool off

Exceptions: Traditionally adequate: serious battery or assault, mutual combat, an illegal arrest, discovery of a spouse in adultery, a threat of deadly force · Words alone are not adequate provocation at common law · Heat of passion reduces murder to manslaughter: it is never a complete defense

Common law: Provocation of a recognised kind, a sudden reaction and no time to cool; words alone are not enough.
Model Penal Code: Extreme mental or emotional disturbance with a reasonable explanation or excuse, judged from the viewpoint of a person in the actor's situation as he believes it to be; no categories and no suddenness requirement.

Imperfect self-defense

Where recognised, imperfect self-defense reduces murder to manslaughter if the killer honestly but unreasonably believed deadly force was necessary.

1. An intentional killing
2. The defendant honestly believed deadly force was necessary to meet a threat
3. The belief was unreasonable
4. The jurisdiction recognises the doctrine and reduces murder to voluntary manslaughter

Exceptions: It is a mitigation, not a complete defense · In a jurisdiction that does not recognise it, an unreasonable belief is no defense and no mitigation · Some jurisdictions also apply it when the defendant started the fight with non-deadly force and so lost full self-defense · Under the MPC, a reckless or negligent belief leaves liability for a crime of recklessness or negligence, such as manslaughter or negligent homicide

Traditional rule: Where the doctrine is not recognised: an honest but unreasonable belief in the need for deadly force is no defense and no mitigation, so the killing is murder.
Modern trend: Where the doctrine is recognised: an honest but unreasonable belief mitigates murder to voluntary manslaughter.

Involuntary manslaughter: criminal negligence and the unlawful act

An unintended killing without malice is involuntary manslaughter if caused by criminal negligence, recklessness short of malice, or a causal unlawful act.

1. An unintended killing without malice
2. Caused by criminal negligence or conscious disregard of a substantial (not extreme) risk of death
3. Or caused by an unlawful act (misdemeanor-manslaughter) that is dangerous or malum in se and causes the death

Exceptions: Ordinary civil negligence is not enough: the deviation must be gross · Conscious disregard of a substantial and unjustifiable risk of death, short of extreme indifference, also supports involuntary manslaughter; the NCBE outline lists reckless and negligent killings, and the MPC calls a reckless killing manslaughter · Misdemeanor-manslaughter: the unlawful act must cause the death; a paperwork violation unrelated to the death is not enough · The MPC calls a reckless killing manslaughter and a negligent killing negligent homicide

Felony murder and its limits

A killing during a dangerous felony is murder without malice toward the victim, but merger, the flight limit and the agency rule fence it in.

1. The defendant commits or attempts an inherently dangerous (or enumerated) felony
2. The felony does not merge with the killing (assault and manslaughter cannot be the predicate)
3. A death is caused during the felony or the flight, until temporary safety
4. The death is attributable to the felons under the jurisdiction's causation rule (agency or proximate cause)

Exceptions: No malice toward the victim is needed: the felony's mental state supplies it · Each co-felon is liable for a death caused by any of them in furtherance of the felony · Take the victim as found: a fatal heart attack from the fright of a robbery counts · A defense to the felony (for example claim of right) defeats felony murder · Courts divide on whether a felony is inherently dangerous in the abstract or as committed; a stem that lists the felonies settles it · Eighth Amendment: the death penalty for a non-killer needs major participation plus reckless indifference (Enmund, Tison)

Majority rule: Agency rule: the killing must be committed by a felon or accomplice in furtherance; a death caused by the victim, police or a bystander is not felony murder.
Minority rule: Proximate-cause rule: felons are liable for any death that is a foreseeable result of the felony, even if the victim or police fired the fatal shot.

Murder under the Model Penal Code

The MPC drops malice and degrees: murder is purposely or knowingly killing, or recklessly killing with extreme indifference to the value of human life.

1. Purposely or knowingly causing death
2. Or recklessly causing death under circumstances manifesting extreme indifference to the value of human life
3. Extreme indifference is presumed (rebuttably) during robbery, rape, arson, burglary, kidnapping or felonious escape

Exceptions: The Code has one grade of murder, a first-degree felony, with no first and second degree · A reckless killing without extreme indifference is manslaughter; a negligent killing is negligent homicide

Common law: Malice in four forms (intent to kill, intent to inflict serious bodily harm, depraved heart, felony murder); statutes add degrees.
Model Penal Code: Purpose, knowledge, or extreme-indifference recklessness; no malice vocabulary, no degrees, no felony-murder rule.

Felony murder under the Model Penal Code

The MPC has no felony-murder rule; listed felonies only create a rebuttable presumption of recklessness and extreme indifference.

1. The actor is engaged in, or fleeing from, robbery, rape, arson, burglary, kidnapping or felonious escape
2. A death results
3. Recklessness and extreme indifference to human life are presumed
4. The presumption is rebuttable

Common law: Felony murder: a death in a dangerous felony is murder without proof of malice toward the victim.
Model Penal Code: No felony-murder rule: the listed felonies only create a rebuttable presumption of extreme-indifference recklessness.

Larceny

Larceny is the trespassory taking and carrying away of another's personal property with intent to deprive the owner of it permanently.

1. Trespassory taking (without the owner's consent)
2. And carrying away (any movement)
3. Of personal property
4. Of another
5. With intent to permanently deprive

Exceptions: Claim of right: an honest belief that the property is the defendant's, even if unreasonable, negates the intent · A short borrowing with a prompt return and no substantial risk of loss is not intent to deprive permanently · Continuing trespass: if the intent to keep forms later while the trespass continues, larceny occurs then · Larceny by trick: consent to possession obtained by fraud is no consent, because only possession passes · Taking a debtor's property to collect a debt is a split: many courts deny the claim-of-right defense there, so a stem that turns on it states the rule

Embezzlement

Embezzlement is fraudulent conversion by someone who already lawfully holds the property; a plan to repay later is no defense.

1. Property of another
2. Lawfully in the defendant's possession (entrusted to him)
3. Fraudulent conversion of the property

Exceptions: An intent to repay later, even with the means to do so, is not a defense: the conversion is the wrong · An employee who has only custody (not possession) and converts the property commits larceny, not embezzlement · Embezzlement is a statutory offense: a stem that names it gives its traditional definition rather than a common-law one

False pretenses

False pretenses is obtaining title to another's property by a knowing false statement of past or existing fact, intending to defraud.

1. A false representation of a past or existing fact
2. Known to be false, made with intent to defraud
3. The victim relies on it
4. Title to the property passes to the defendant

Exceptions: If only possession passes, the crime is larceny by trick, not false pretenses · Traditionally a false promise about the future is not a false pretense (many modern statutes reach it) · Modern consolidated theft statutes merge larceny, embezzlement and false pretenses (MPC 223.1) · False pretenses and embezzlement are statutory offenses: a stem that names them gives their traditional definitions

Receiving stolen property

Receiving is taking control of stolen goods knowing they are stolen; goods recovered by police are no longer stolen, so a sting is an attempt.

1. Receives possession or control
2. Of property that is stolen
3. Knowing that it was stolen
4. Intending to deprive the owner

Exceptions: Property recovered by the police is no longer stolen, so a buyer in a sting is guilty of attempt, not receiving · Impossibility is no defense to attempt where the conduct would be a crime had the facts been as the defendant believed; older cases called this sting case legal impossibility · The thief who stole the property generally cannot be convicted of receiving it

Robbery

Robbery is larceny from a person or presence by force or fear of immediate harm; a threat of future harm is not robbery, and a pickpocket commits only larceny.

1. Larceny: trespassory taking and carrying away of another's personal property with intent to permanently deprive
2. From the person or presence of the victim
3. By force, or by intimidation: fear of immediate bodily harm

Exceptions: A pickpocket or surprise snatch is larceny, not robbery · A threat of future harm is not robbery; modern statutes treat it as extortion or blackmail · A fake or unloaded gun can still cause reasonable fear · 'Presence' means within the victim's reach or control, even in another room · Force used after the taking, to keep the property or to escape: not robbery at strict common law, but robbery under the MPC and many modern statutes, which the stem will state · A threat of immediate harm to a family member or another person present also counts

Common-law burglary

Common-law burglary is breaking and entering a dwelling of another at night with intent to commit a felony inside, formed at the time of entry.

1. Breaking
2. And entering
3. The dwelling
4. Of another
5. At night
6. With intent to commit a felony therein at the time of entry

Exceptions: Breaking: opening a closed door or window, even unlocked, or entering by fraud or threat; walking through an open door is not a breaking · Entering: any part of the body, or an instrument used to commit the felony · The intent must exist at the moment of entry; an intent formed later makes no burglary

Common law: Breaking and entering the dwelling of another at night with intent to commit a felony inside.
Modern trend: Most statutes: unlawful entry into any building or structure, at any time, with intent to commit a crime inside; no breaking, dwelling or night requirement.

Common-law arson

Common-law arson is the malicious burning of another's dwelling; some charring is needed, and mere negligence is not malice.

1. Malice: intent, or reckless disregard of an obvious risk of burning
2. Burning: some charring, not just scorching or smoke
3. Of the dwelling
4. Of another

Exceptions: Negligence, even gross negligence, is not malice for arson · Modern statutes reach any structure and the defendant's own property (insurance fraud) · Burning one's own house is not common-law arson, but a fire that spreads to a neighbor's house may be, if the risk was obvious

Battery and assault

Battery is unlawful force causing injury or offensive touching; assault is an attempted battery or intentionally causing reasonable fear of one.

1. Battery: unlawful application of force to another's person (injury or offensive touching)
2. Assault: an attempted battery
3. Assault: intentionally causing reasonable apprehension of immediate bodily harm
4. Mental state: intent or criminal negligence, not ordinary negligence

Exceptions: Words alone are not an assault · Apparent ability is enough: a victim frightened by an unloaded gun has been assaulted · A conditional threat, such as 'your money or your life', is still an assault unless the condition is one the defender has a right to impose · Consent defeats battery for ordinary contact but not for serious injury

Rape and consent

Rape is sexual penetration without consent; a lie that induces consent is not rape, but deceit about the nature of the act is.

1. Sexual penetration (intercourse)
2. Without consent: by force or threat, or of a person incapable of consenting
3. General intent: intent to engage in the act; a mistaken belief in consent helps only if reasonable, in most courts

Exceptions: Fraud in the factum (the victim does not know it is a sexual act, as when it is posed as a medical procedure) vitiates consent: rape · Fraud in the inducement (a lie that wins consent, such as a false promise of money or marriage) does not: no rape · Unconsciousness, severe intoxication or mental incapacity means no valid consent · The marital exemption has been abolished · Mistake about consent: rape is a general-intent crime, so many courts require the belief in consent to be reasonable; courts divide, and the stem says which rule applies

Majority rule: Most courts: rape is general intent, so a mistaken belief in consent is a defense only if it was reasonable.
Minority rule: Some courts: an honest belief in consent, even if unreasonable, negates the mental state.

Statutory rape: strict liability as to age

Intercourse with a person under the age of consent is a crime even if she agrees; in most states a reasonable mistake about age is no defense.

1. Sexual intercourse
2. With a person below the statutory age of consent
3. No mental state as to age: strict liability, so consent and mistake are no defense

Exceptions: The minor's consent is irrelevant · Even an honest and reasonable belief that the partner was of age is no defense in the majority of states

Majority rule: Strict liability as to the victim's age: even a reasonable mistake is no defense.
Model Penal Code: 1962 Model Penal Code: a reasonable belief that the child was above the critical age is a defense, unless the critical age is ten.

Kidnapping and false imprisonment

Kidnapping is unlawful confinement with movement or secrecy; whether movement incidental to another crime counts depends on the jurisdiction.

1. Unlawful confinement of another person
2. By force, threat or fraud
3. Accompanied by movement (asportation) or concealment (secrecy)

Exceptions: False imprisonment is unlawful confinement without consent, with no movement or secrecy needed · A child or an incompetent can be taken by deception

Traditional rule: Any movement or confinement, however brief, can satisfy the asportation element.
Modern trend: Movement or confinement merely incidental to another crime, such as robbery, is not kidnapping.
Model Penal Code: Removal from home or workplace or a substantial distance, or confinement in isolation for a substantial period, with a listed purpose such as ransom or facilitating a felony.

Possession offenses

Possession means knowing control for long enough to end it; mere presence near the item is not enough, but dominion over it, alone or jointly, is.

1. Knowledge of the item's presence and character
2. Control: actual possession, or constructive dominion over the item
3. Long enough to have terminated the possession

Exceptions: Constructive possession: knowledge plus power and intent to control the item, alone or jointly · Mere presence near contraband, or in a shared car or room, is not possession without more · Possession is treated as an act if the defendant knowingly procured or received the item, or was aware of controlling it long enough to end the possession

Attempt

Attempt is specific intent to commit a crime plus an act beyond mere preparation; it cannot be reckless, and it merges into the completed crime.

1. Specific intent to commit the target crime
2. An act beyond mere preparation
3. The crime is not completed

Exceptions: No attempt of a reckless or negligent crime: depraved-heart murder and felony murder cannot be attempted · Factual impossibility is no defense; true legal impossibility (what was intended is not a crime) is · Abandonment: no defense once the attempt is complete at common law; the MPC allows complete and voluntary renunciation · Merger: an attempt merges into the completed crime · Older cases called buying recovered goods believed stolen legal impossibility; modern courts and the MPC judge it on the facts as the defendant believed them

Common law: The act must come dangerously close to completing the crime (dangerous proximity, or the older last-act test).
Model Penal Code: A substantial step strongly corroborating criminal purpose, such as lying in wait, reconnoitering the scene or possessing materials specially designed for the crime.

Solicitation

Solicitation is asking another to commit a crime, intending that it be committed; it is complete on the asking and merges if the crime follows.

1. Asks, commands or encourages another to commit a crime
2. Intends that the crime be committed
3. Complete when the request is made: no agreement or act by the other is needed

Exceptions: A refusal by the person asked does not matter · Solicitation merges into the completed crime (the solicitor is then an accomplice) or, if the person asked agrees, into the conspiracy · The MPC allows a complete and voluntary renunciation defense

Conspiracy

Conspiracy is an agreement to commit a crime, with intent to achieve it; at common law no overt act is needed and it never merges.

1. Agreement between two or more persons
2. Intent to enter the agreement and to achieve its unlawful objective
3. An overt act, where the statute requires one

Exceptions: Wharton's Rule: no conspiracy to commit a crime that by definition needs two people (adultery, dueling) unless a third person takes part · Pinkerton (the federal rule): each member answers for foreseeable crimes of co-conspirators committed in furtherance; the MPC and some states reject it, so the stem says when it applies · Withdrawal does not undo the conspiracy but ends liability for later crimes if communicated in time · Conspiracy does not merge with the target crime: both can be punished · A person the statute is meant to protect cannot be a co-conspirator in its violation (Gebardi v. United States)

Common law: Bilateral: at least two persons must genuinely agree, so an undercover officer who only pretends cannot be a co-conspirator.
Model Penal Code: Unilateral: a person who genuinely agrees is guilty even if the other only pretends to.

Accomplice liability

An accomplice intentionally helps or encourages a crime, intending that it succeed; mere presence is not enough, and the accessory after the fact is separate.

1. Aids, abets, counsels or encourages the principal
2. Intends to assist the principal
3. Intends that the crime be committed

Exceptions: Mere presence or silent knowledge is not enough; words of encouragement are · Failure to act counts only if there is a legal duty · The accomplice can be convicted even if the principal is acquitted or unknown · Withdrawal requires timely repudiation and neutralising the help already given · An accessory after the fact helps a felon escape after the crime: a separate, lesser crime, not the underlying felony · Supplying goods or services with knowledge alone is not enough where the stem requires intent or purpose to promote the crime · A feigned accomplice, who pretends to help in order to get the principal arrested, lacks the intent that the crime succeed · A person the statute protects, such as the minor in statutory rape, cannot be an accomplice to the crime against her

Common law: The accomplice is liable for the planned crime and for other crimes that are its natural and probable consequences.
Model Penal Code: The accomplice is liable only for the offense he intended to promote or facilitate.

The voluntary act requirement

A crime needs a voluntary act, an omission with a legal duty, or knowing possession; reflexes and unconscious acts do not count, but a prior voluntary act can.

1. A voluntary act: a willed bodily movement
2. Or an omission where there is a legal duty to act
3. Or possession: knowing control long enough to end it

Exceptions: Reflexes, convulsions, sleepwalking and acts during unconsciousness are not voluntary · A prior voluntary act can supply the act: driving while aware of a risk of seizures · Status crimes are unconstitutional (Robinson v. California, 1962); punishing a public act is not (Powell v. Texas, 1968) · City of Grants Pass v. Johnson (2024): enforcing public-camping bans against homeless people punishes conduct, not status, so Robinson does not bar it

Omissions: when failing to act is a crime

Failing to act is criminal only with a legal duty: statute, relationship, contract, assumed care that secludes the victim, or having created the peril.

1. A statute imposes a duty
2. A special relationship, such as parent and child
3. A contract
4. Voluntary assumption of care that secludes the victim
5. The defendant created the peril

Exceptions: A bystander has no duty to rescue, however easy the rescue would be · The defendant must be able to perform the duty and have the required mental state

Mental states: common law and the Model Penal Code

Common law sorts crimes into specific intent, general intent, malice and strict liability; the MPC ranks purposely, knowingly, recklessly, negligently.

1. Purposely: conscious object to engage in the conduct or cause the result
2. Knowingly: aware the conduct is of that nature or the result is practically certain
3. Recklessly: consciously disregards a substantial and unjustifiable risk
4. Negligently: should be aware of a substantial and unjustifiable risk

Exceptions: A higher mental state satisfies a lower one · When a statute states no mental state for a material element, the MPC supplies recklessness · Transferred intent: intent to harm one person carries over to an unintended victim of the same kind of harm · Concurrence: the mental state must coincide with the act that causes the harm

Common law: Specific intent, general intent, malice and strict liability.
Model Penal Code: Purposely, knowingly, recklessly, negligently; recklessness is the default.

Strict liability crimes

A strict-liability offense needs no mental state as to an element, so even a reasonable mistake about it is no defense.

1. A statutory offense, usually regulatory or protecting the young
2. No mental state is required as to the strict-liability element
3. A mistake about that element, even a reasonable one, is no defense

Exceptions: Strict liability applies to the element only: the other elements still need their mental states · Federal courts presume a mens rea requirement unless Congress clearly omits it (Morissette; Staples; Rehaif) · Due process bars punishing a pure omission with no notice of a duty to act (Lambert v. California)

Mistake of fact

An honest mistake negates a specific-intent crime; a general-intent crime needs a reasonable mistake; strict liability allows none.

1. Identify the mental state the crime requires
2. Specific intent: an honest mistake is a defense
3. General intent: only a reasonable mistake is a defense
4. Strict liability: no mistake is a defense

Exceptions: The mistake must negate an element of the offense, not merely excuse the defendant · A claim-of-right belief that property is one's own is a mistake that negates larceny's intent

Mistake of law

Ignorance or mistake of the law is no defense, even on a lawyer's advice, with narrow exceptions such as official statements and knowledge-of-law elements.

1. General rule: ignorance or mistake of law is no defense
2. Exception: the statute makes knowledge of the law an element (Cheek)
3. Exception: reasonable reliance on an official statement later held erroneous (MPC 2.04(3))
4. Exception: no fair notice of a duty to act (Lambert)

Exceptions: Advice of private counsel is not a defense, even if the advice was wrong · A mistake about civil law that negates an element (claim of right) is a defense

Causation

Causation needs but-for cause plus proximate cause; foreseeable intervening acts do not break the chain, unforeseeable independent ones do.

1. Actual cause: but for the defendant's act, the result would not have occurred
2. Proximate cause: the result was a foreseeable consequence
3. No superseding cause: an unforeseeable, independent intervening event

Exceptions: Dependent (responsive) acts, such as negligent medical care or a victim's flight, do not break the chain unless grossly abnormal · Independent, unforeseeable coincidences do: an ambulance hit by a drunk driver · Take the victim as found: a fragile victim's death is the defendant's · Hastening a death counts as causing it · Most jurisdictions have abolished the common-law year-and-a-day rule: a death long after the act can still be homicide · Burrage v. United States (2014): 'results from' requires but-for causation

The insanity defense: the tests

M'Naghten asks whether a mental disease kept the defendant from knowing the act's nature or wrongfulness; the MPC adds a capacity to conform conduct.

1. A disease or defect of the mind
2. Caused the defendant not to know the nature and quality of the act
3. Or not to know that the act was wrong

Exceptions: Irresistible impulse (a minority addition): mental disease left the defendant unable to control his conduct · MPC/ALI: lacks substantial capacity to appreciate the criminality of the conduct or to conform it to the law · Burden: a state may put it on the defendant (Leland v. Oregon); in federal court the defendant must prove it by clear and convincing evidence · A state may limit mental illness to a mens rea defense (Kahler v. Kansas, 2020) · Competency to stand trial is a different question (Dusky v. United States) · Diminished capacity (a minority doctrine): evidence of a mental disorder may negate a specific intent such as premeditation; a state may bar it (Clark v. Arizona, 2006)

Intoxication

Voluntary intoxication can negate specific intent (and premeditation) but not recklessness or malice; involuntary intoxication is treated like insanity.

1. Was the intoxication voluntary or involuntary?
2. Voluntary: it can negate specific intent only
3. Voluntary: no defense to general intent, malice or strict liability
4. Involuntary: a defense to any crime if it prevents the mental state or causes insanity

Exceptions: Involuntary intoxication includes unwitting ingestion, coerced intoxication and an unexpected reaction to a prescribed drug · Voluntary intoxication can negate the premeditation or specific intent to kill that first-degree murder requires, reducing it to second degree; it is no defense to depraved-heart murder or to general-intent crimes · Due process does not require that a state allow voluntary-intoxication evidence (Montana v. Egelhoff)

Common law: Voluntary intoxication negates specific intent only, never general intent or malice.
Model Penal Code: Voluntary intoxication may negate purpose or knowledge, but unawareness of a risk caused by it is treated as awareness, so it is no defense to recklessness.

Self-defense

Self-defense needs a reasonable belief in imminent unlawful force and a proportionate response; deadly force answers only deadly force or serious harm.

1. Reasonable belief that unlawful force is imminent
2. Force proportionate to the threat: deadly force only against deadly force or serious bodily harm
3. Not the initial aggressor (or withdrew and communicated it)
4. Retreat rule satisfied, if the jurisdiction imposes one

Exceptions: An initial aggressor in a nondeadly fight regains the right if the other side escalates to deadly force · An arrestee may use reasonable force against an officer's excessive force but not against a lawful arrest · An officer's own use of force is judged under the Fourth Amendment, not this doctrine (Tennessee v. Garner; Graham v. Connor; Barnes v. Felix) · An honest but unreasonable belief is no defense; some jurisdictions mitigate murder to manslaughter (imperfect self-defense) · Castle doctrine: no duty to retreat from one's own home (some jurisdictions require retreat from a co-occupant) · MPC: an honest belief that force is immediately necessary is enough, though liability remains for a reckless or negligent mistake where the crime can be committed that way

Majority rule: No duty to retreat before using deadly force.
Minority rule: Must retreat if it can be done in complete safety, except from one's own home.

Defense of others

Most courts protect a defender's reasonable belief that another needs help; the alter-ego minority protects only a third party who could really use force.

1. A third person faces apparent unlawful force
2. The defender reasonably believes that force is needed
3. The force is proportionate to the threat

Majority rule: A reasonable belief that the third person was entitled to defend himself is enough, even if the belief turns out to be wrong.
Minority rule: Alter ego: the defender stands in the third person's shoes and is protected only if that person actually could have used force.

Defense of property

Reasonable non-deadly force may protect property; deadly force never may, except to stop a violent entry into a home by someone bent on harm inside.

1. Reasonable belief that property is under unlawful interference
2. Force limited to what is reasonably necessary
3. Never deadly force to protect property alone

Exceptions: Booby traps and spring guns are deadly force: the owner is liable unless he would have been privileged to use deadly force had he been present · Deadly force is allowed if the occupant faces a threat of death or serious bodily harm (self-defense), as with an intruder who attacks him · Defense of habitation: deadly force may be used to prevent a violent or forcible entry into the dwelling if the occupant reasonably believes the intruder intends a felony or personal harm inside; property alone, outside that, never

Consent as a defense

Valid consent defeats a battery for ordinary contact; it is no defense to serious injury or murder, and a child's or fraudulent consent is invalid.

1. The victim actually consents to the conduct
2. The victim has the capacity to consent
3. The consent was not obtained by force, threat or fraud about the nature of the act
4. The harm is within what the law lets a person consent to

Exceptions: Consent is a defense to ordinary battery, such as contact within the rules of a sport or a medical procedure · Consent is not a defense to serious bodily injury (public policy), though the MPC allows an exception for the foreseeable hazards of a lawful sport · Consent is never a defense to murder · A child below the age of consent and an incapacitated person cannot give valid consent · Consent defeats the trespass in larceny and the lack of consent in rape

Necessity (choice of evils)

Necessity excuses a crime committed to avoid a greater harm when there was no lawful alternative, but never an intentional killing of an innocent.

1. A significant, imminent harm threatens
2. No reasonable lawful alternative
3. The harm avoided is greater than the harm caused
4. The defendant did not create the danger

Exceptions: Not a defense to intentionally killing an innocent person (Dudley and Stephens) · It usually arises from natural forces; a threat by another person is duress

Duress

Duress excuses a crime done under a threat of imminent death or serious harm, but not murder at common law; the MPC asks about a person of reasonable firmness.

1. An unlawful threat of imminent death or serious bodily harm to the defendant or another
2. A reasonable belief that the threat will be carried out
3. No reasonable opportunity to escape
4. The crime is not murder

Common law: Imminent threat of death or serious bodily harm; never a defense to murder.
Model Penal Code: A person of reasonable firmness in the actor's situation could not have resisted; no imminence requirement, and murder is not excluded.

Jurisdiction and dual sovereignty

A state may prosecute conduct or results within it; separate sovereigns, state and federal or two states, may each prosecute the same act.

1. Conduct occurs in the state
2. Or the result occurs in the state
3. Or an attempt or conspiracy aimed at the state
4. Separate sovereigns may each prosecute the same act

Exceptions: Double jeopardy does not bar successive prosecutions by separate sovereigns (Heath v. Alabama; Gamble v. United States)

Entrapment

Entrapment is government inducement of an unpredisposed person; federal law and most courts ask about predisposition, the MPC about the police conduct.

1. Government agents induce the crime
2. The defendant was not predisposed to commit it

Exceptions: Merely providing an opportunity is not inducement · A private person cannot entrap · Outrageous government conduct is a separate, rarely successful, due-process claim

Federal rule: Subjective test: government inducement plus lack of predisposition; the defendant's own readiness defeats the defense.
Model Penal Code: Objective test: would the police conduct induce a normally law-abiding person to commit the offense; predisposition is irrelevant.

What counts as a search

A search is a government intrusion on a reasonable expectation of privacy, or a physical trespass on a protected area to gather information.

1. Government action: a purely private search is outside the amendment
2. A reasonable expectation of privacy is invaded (Katz)
3. Or a physical trespass on persons, houses, papers or effects to gather information (Jones; Jardines)

Exceptions: Thermal imaging of a home is a search (Kyllo) · The digital contents of a phone are a search and need a warrant (Riley) · Seven days of historical cell-site location data is a search (Carpenter) · A drug dog on the front porch is a search (Jardines); a sniff of luggage or of a car during a lawful stop is not (Place; Caballes) · Curtilage is protected like the home, judged by proximity, enclosure, use and steps taken to block the view (Dunn); open fields are not (Oliver) · Not a search: what is visible from public airspace (Ciraolo), or a private party's search that the police repeat without exceeding it (Jacobsen)

Standing: who can complain

You can suppress only what violated your own privacy: an overnight guest can, a short commercial visitor cannot, a passenger can contest the stop.

1. The person moving to suppress is the one whose own rights were invaded
2. A legitimate expectation of privacy in the place searched or the item seized
3. No vicarious standing: another person's rights cannot be asserted

Exceptions: An overnight guest has standing in the host's home (Olson) · A short-term commercial visitor does not (Carter) · A passenger may contest the stop (Brendlin) but not the search of the car (Rakas) · An unauthorized driver of a rental car may have an expectation of privacy (Byrd)

Seizure of a person

A seizure takes force applied with intent to restrain, or a show of authority the person obeys; a runner who has not submitted has not been seized.

1. Force on the body with intent to restrain is a seizure even if the person escapes (Torres)
2. Or a show of authority to which the person submits (Hodari D.)
3. For authority: a reasonable person would not feel free to leave or end the encounter (Mendenhall; Bostick)

Exceptions: A consensual encounter is not a seizure and needs no suspicion · Property thrown away before a seizure is abandoned, not the fruit of one (Hodari D.)

Terry stops and frisks

A stop needs reasonable suspicion of crime; a frisk needs more, reason to think the person is armed and dangerous, and it stops at weapons.

1. Reasonable suspicion that criminal activity is afoot, from specific and articulable facts
2. The detention lasts no longer than needed to confirm or dispel the suspicion
3. Reasonable suspicion that the person is armed and dangerous
4. A pat-down of outer clothing, for weapons only
5. Contraband is seized only if its identity is immediately apparent by plain feel (Dickerson)

Exceptions: An anonymous tip with no sign of reliability is not enough (J.L.) · A recorded 911 report of dangerous driving, made as it happened, can be enough (Navarette) · Unprovoked flight in a high-crime area adds to suspicion (Wardlow) · A registered owner with a revoked license: reasonable to suspect the driver is the owner (Glover) · A reasonable mistake of law can support a stop (Heien)

Traffic stops

A traffic stop needs only a violation (motive is irrelevant), lets police order everyone out, and may last only as long as the traffic job takes.

1. Valid start: a traffic violation observed; the officer's motive is irrelevant (Whren)
2. Driver and passengers may be ordered out of the car (Mimms; Wilson)
3. A frisk of driver or passenger needs reasonable suspicion of armed and dangerous (Johnson)
4. No prolonging beyond the traffic mission for a dog sniff without reasonable suspicion (Rodriguez)

Exceptions: A dog sniff of the car's exterior during a lawful, unprolonged stop is not a search (Caballes) · A routine traffic stop is not custody for Miranda (Berkemer), covered in the Miranda lesson

Arrests and the home

Probable cause arrests need no warrant in public; entering a home needs an arrest warrant for the suspect's own, or a search warrant for someone else's.

1. Probable cause that this person committed a crime
2. In a public place: no warrant, even for a fine-only misdemeanor in the officer's presence (Watson; Atwater)
3. The suspect's own home: an arrest warrant plus reason to believe he is inside (Payton)
4. A third party's home: a search warrant, absent consent or exigency (Steagald)
5. A prompt judicial probable-cause determination, presumptively within 48 hours (Gerstein; McLaughlin)

Exceptions: Deadly force against a fleeing suspect only with probable cause that he poses a significant threat of death or serious injury (Garner) · Excessive force is judged by objective reasonableness on the totality, including events before the moment of threat (Graham; Barnes v. Felix)

A valid search warrant

Probable cause, oath, a neutral magistrate, particular description. A knowing falsehood voids it; a knock-and-announce lapse does not suppress.

1. Probable cause on the totality of the circumstances (Gates)
2. Supported by oath or affirmation
3. Issued by a neutral and detached magistrate
4. Particularly describes the place to be searched and the things to be seized

Exceptions: A deliberately or recklessly false statement necessary to probable cause voids the warrant (Franks) · A warrant for premises does not reach persons merely present (Ybarra), but occupants may be detained during the search (Summers) · Knock-and-announce is part of reasonableness (Wilson; Banks), but violating it does not require suppression (Hudson)

Search incident to arrest, and its car rule

An arrest allows a search of the person and the grab area; a car only if the arrestee can reach it or evidence of the arrest offense may be inside.

1. A lawful custodial arrest
2. The person and the area within his immediate control (Chimel; Robinson)
3. A car's passenger compartment: only on one of Gant's two prongs

Exceptions: A phone's digital contents need a warrant (Riley) · A citation alone does not allow it (Knowles) · A protective sweep of spaces adjoining the arrest site needs no suspicion; a wider sweep needs reasonable suspicion of danger (Buie) · A breath test may be taken incident to a drunk-driving arrest, a blood test may not (Birchfield)

Gant: the two prongs for a car search incident to arrest

After an arrest, police may search the passenger compartment only if the arrestee can still reach it, or evidence of the arrest offense may be inside.

1. Prong one: the arrestee is unsecured and within reaching distance of the passenger compartment
2. Prong two: reasonable to believe the car holds evidence of the offense of arrest
3. Either prong alone is enough
4. The search reaches the passenger compartment and containers in it, never the trunk

Exceptions: The offense of arrest matters: a traffic or license offense rarely leaves evidence in the car · Probable cause of evidence anywhere in the car is a different route, the automobile exception, and does reach the trunk

Protective searches: frisks, car compartments and sweeps

Danger, not evidence, justifies a protective search: a frisk, a car compartment or a sweep, each limited to where a weapon or an attacker could be.

1. Frisk of a person stopped on reasonable suspicion: reasonable suspicion he is armed and dangerous (Terry)
2. Car compartment in a lawful stop: reasonable suspicion the suspect is dangerous and may reach a weapon (Long)
3. Sweep incident to an in-home arrest: spaces immediately adjoining the arrest, no suspicion needed (Buie)
4. A wider sweep needs articulable facts that the area holds a person who poses a danger (Buie)
5. Limited to places a weapon or a person could be, and to the duration of the danger

Exceptions: A search for evidence is a different matter: it needs a warrant or its own exception · A search of the whole house incident to an arrest inside it is not allowed (Chimel)

The automobile exception

Probable cause that a car holds evidence lets police search every part of it, trunk and containers included, with no warrant.

1. Probable cause that the vehicle contains evidence or contraband
2. The search reaches every part and every container that could hold the object, trunk included
3. No warrant and no arrest is needed

Exceptions: It does not reach into a home's curtilage to search a car parked there (Collins) · Passengers' belongings are covered (Houghton)

Plain view

Plain view needs a lawful vantage, lawful access, and probable cause that the item is incriminating, apparent at once. Moving things to look is a search.

1. The officer is lawfully at the vantage point
2. The officer has a lawful right of access to the object
3. Its incriminating character is immediately apparent: probable cause

Exceptions: Inadvertence is not required (Horton) · Moving an item to read its serial number is a separate search that needs probable cause (Hicks)

Consent searches

Consent must be voluntary, from someone with actual or apparent authority, and within its scope; a present co-occupant's refusal beats another's consent.

1. Voluntary under the totality of the circumstances; no warning of a right to refuse is required (Schneckloth)
2. Given by a person with actual or apparent authority over the place (Matlock; Rodriguez)
3. The search stays within the scope the consenter would be understood to allow

Exceptions: A physically present co-occupant's express refusal overrides another occupant's consent (Randolph) · Unless the objector was lawfully removed, for example arrested (Fernandez)

Exigent circumstances

Hot pursuit of a felon, evidence about to be destroyed, or an occupant needing emergency aid each excuses the warrant; the aid test is objective reasonableness.

1. Hot pursuit of a fleeing felon (Hayden)
2. Imminent destruction of evidence, not created by a police violation (King)
3. Emergency aid: objectively reasonable basis that an occupant needs help (Brigham City)
4. A fleeing misdemeanant: no automatic entry, decided case by case (Lange)

Exceptions: Emergency aid needs no probable cause of a crime (Case v. Montana, 2026) · Drunk driving: natural dissipation of alcohol is not a per se exigency for a blood draw (McNeely); an unconscious driver usually qualifies (Mitchell, plurality)

Inventory searches and the car-and-home limits

A lawful impoundment plus a standard, non-investigative inventory lets police open containers; community caretaking does not reach the home.

1. The car is lawfully impounded, or the arrestee lawfully booked
2. Police follow standardized criteria
3. The purpose is administrative: protect property and guard against claims, not hunt for evidence

Exceptions: Community caretaking justifies some vehicle encounters but not a warrantless entry into a home (Caniglia) · A protective search for weapons is not an inventory: it needs reasonable suspicion of danger and has its own card

Special needs: checkpoints, schools, borders and probationers

Suspicionless searches pass only for a special need beyond ordinary crime control: sobriety, border, school and supervision settings.

1. A checkpoint needs a primary purpose other than general crime control (Edmond)
2. Valid checkpoints: sobriety (Sitz), immigration near the border (Martinez-Fuerte), crash information (Lidster)
3. Schools: a student search needs reasonable suspicion (T.L.O.); athlete and club drug tests pass (Vernonia; Earls)
4. Border: routine searches need no suspicion; highly intrusive ones need reasonable suspicion (Montoya de Hernandez)
5. Probation search condition plus reasonable suspicion suffices (Knights); parolee with one: none (Samson)

Exceptions: Border searches of phones and other digital devices are unsettled and are not tested here · A DNA cheek swab at booking after arrest for a serious offense is permitted (Maryland v. King)

The exclusionary rule and its fruit

Evidence from an unconstitutional search, and its fruit, is kept out of the prosecution's case against the person whose rights were violated.

1. An unconstitutional search or seizure by a government agent
2. The movant's own rights were violated (standing)
3. The evidence, or its fruit, came from the violation (Wong Sun)
4. No exception removes the taint

Exceptions: The rule applies in state courts (Mapp) · Statements and physical evidence can both be fruit (Wong Sun)

Cleaning the taint: source, discovery, attenuation

Independent source, inevitable discovery, attenuation: each lets the prosecution use evidence that the illegality might otherwise taint.

1. Independent source: the evidence was also obtained lawfully, untouched by the illegality (Murray)
2. Inevitable discovery: lawful discovery was inevitable, shown by a preponderance (Nix)
3. Attenuation: the link to the illegality is too weak (Brown factors; Strieff)

Exceptions: Brown factors: time elapsed, intervening circumstances, and the purpose and flagrancy of the misconduct · Miranda warnings alone do not attenuate an illegal arrest (Brown) · A valid pre-existing arrest warrant found after a negligent unlawful stop attenuates the taint (Strieff)

Good faith, and where it stops

Reasonable reliance on a warrant, statute or precedent later held invalid keeps the evidence in, unless the affidavit was bare-bones or a lie.

1. Objectively reasonable reliance on a warrant later found invalid (Leon)
2. Or on a statute later struck down (Krull), or binding precedent later overruled (Davis)
3. Or an isolated, negligent recordkeeping error (Herring)
4. Shield lost: false affidavit, rubber-stamp magistrate, bare-bones affidavit, or facially deficient warrant

Exceptions: A knowing or reckless falsehood in the affidavit defeats it (Franks; Leon) · A warrant so lacking in particularity that no reasonable officer would rely on it defeats it

Voluntariness: the due process test

Involuntary means police coercion overbore the will; mental illness alone is not enough. A coerced statement cannot be used, even to impeach.

1. Coercive police conduct is present (Connelly)
2. Judged on the totality: the suspect's age, education, condition and the police methods
3. The coercion overbore the suspect's will, so the statement was not freely given

Exceptions: An involuntary statement is excluded for every purpose, impeachment included (Mincey) · Harmless-error review applies to its admission (Fulminante) · The prosecution proves voluntariness by a preponderance (Lego)

Miranda: custody plus interrogation

Warnings are needed only for custodial interrogation: restraint like a formal arrest plus questioning, or its functional equivalent, by the state.

1. Custody: restraint on freedom of movement of the degree associated with formal arrest
2. Interrogation: express questioning or its functional equivalent (Innis)
3. By the state, without warnings and a valid waiver before the statement

Exceptions: Not custody: a routine traffic stop (Berkemer); a prisoner questioned about an outside crime, not automatically (Howes); a child's age counts if known or apparent (J.D.B.) · Not interrogation: volunteered statements; routine booking questions (Muniz) · No warnings needed: public safety (Quarles); a suspect unaware he is speaking to an undercover agent (Perkins) · Miranda is a constitutional rule that Congress cannot override by statute (Dickerson)

Invoking silence or counsel

Invocation must be unambiguous. Counsel invoked in custody stops questioning until counsel arrives, the suspect restarts it, or 14 days pass.

1. The request must be unambiguous; 'Maybe I should talk to a lawyer' is not enough (Davis)
2. Counsel invoked in custody: questioning stops until counsel is present or he reopens it (Edwards)
3. The bar covers any crime and ends after a 14-day break in custody (Roberson; Shatzer)
4. Silence invoked: scrupulously honored; fresh warnings after a significant interval may allow more (Mosley)

Exceptions: A waiver can be implied when the suspect understands the warnings and then answers (Berghuis v. Thompkins) · Outside custody, a suspect must expressly invoke the privilege or his silence can be used (Salinas, plurality) · A lawyer's efforts to reach the suspect, unknown to him, do not undo his waiver (Moran)

What an unwarned statement can still do

An unwarned voluntary statement stays out of the case-in-chief but can impeach, its physical fruits come in, and a deliberate two-step ruins the second one.

1. Out of the prosecution's case-in-chief
2. Usable to impeach the defendant's own testimony if voluntary (Harris)
3. Physical fruits are admissible (Patane)
4. A later warned statement is admissible unless the question-first, warn-later technique was deliberate (Elstad; Seibert)

Exceptions: A bare Miranda violation supports no damages claim under 42 U.S.C. §1983 (Vega v. Tekoh) · An involuntary statement fails for every purpose

The privilege against self-incrimination

The privilege covers compelled, testimonial statements by a person, not blood, voice or lineup evidence; immunity must cover use and derivative use.

1. Compelled by the government
2. Testimonial: communicates the person's own knowledge or thoughts
3. Incriminating, and claimed by a natural person (corporations have none)

Exceptions: Blood (Schmerber), handwriting (Gilbert), voice samples and lineup appearance (Wade; Dionisio) are not testimonial · Producing documents can be testimonial through the act of production (Fisher; Hubbell) · Compelled testimony needs use and derivative-use immunity (Kastigar) · No comment on the defendant's decision not to testify (Griffin) · After warnings, silence cannot impeach (Doyle); pre-arrest silence, or post-arrest silence before warnings, can (Jenkins; Fletcher)

Sixth Amendment counsel: attachment and scope

The right attaches at formal charge, covers only the charged offense, and bars deliberately eliciting statements without counsel. A passive listener is fine.

1. Attaches when adversary proceedings begin: charge, indictment, information, arraignment or initial appearance
2. Offense-specific: the charged offense and its Blockburger 'same offense' only (McNeil; Cobb)
3. After attachment, the government may not deliberately elicit statements without counsel or a valid waiver (Massiah)
4. A passive listener, such as an informant who only listens, is allowed (Kuhlmann)

Exceptions: A Miranda waiver generally also waives the Sixth Amendment right for questioning (Patterson) · Police may initiate contact after counsel is appointed if the suspect validly waives (Montejo) · The Miranda-Edwards right covers any crime; the Sixth Amendment right does not · Deliberate elicitation needs no formal question: a speech meant to draw a response counts (Brewer; Fellers) · Knowingly exploiting a chance to confront the charged defendant without counsel counts, even if an accomplice arranged the meeting (Moulton)

Appointed counsel for the indigent

Counsel for any felony, for any misdemeanor ending in actual or suspended jail, on a first appeal as of right, and at every critical stage.

1. Any felony prosecution (Gideon)
2. Any misdemeanor that results in actual imprisonment (Argersinger; Scott)
3. A suspended jail term that may be activated (Shelton)
4. A first appeal as of right, not discretionary review (Douglas; Ross v. Moffitt)
5. Critical stages: arraignment, plea negotiations, post-charge lineups, sentencing

Exceptions: A fine-only misdemeanor needs no appointed counsel (Scott) · An uncounseled misdemeanor conviction with no jail may later enhance a sentence (Nichols)

Ineffective assistance of counsel

Both prongs: deficient performance and a reasonable probability of a different result. Prejudice is presumed only in narrow cases, like absent counsel.

1. Deficient performance: representation fell below an objective standard of reasonableness
2. Judged from counsel's view at the time, with strategic choices after reasonable investigation presumed sound
3. Prejudice: a reasonable probability that, but for the error, the result would have been different

Exceptions: Prejudice is presumed if counsel is entirely absent at a critical stage (Cronic) or labors under an actual conflict that affects performance (Cuyler) · Forced joint representation over timely objection: automatic reversal (Holloway) · Plea stage: counsel must communicate formal offers and advise on deportation (Frye; Lafler; Padilla) · Failing to file a requested appeal is prejudicial even after an appeal waiver (Garza)

Self-representation

A competent defendant who knowingly waives counsel may represent himself; legal skill is irrelevant, and wrongly denying the right is structural error.

1. A timely and clear request to proceed without counsel
2. A knowing and intelligent waiver, with eyes open to the risks (Faretta)
3. Competent to stand trial, the same standard that governs waiving counsel (Dusky; Godinez)

Exceptions: Technical legal skill does not matter (Faretta) · A state may, but need not, insist on counsel for a defendant competent to stand trial but unable to conduct trial proceedings himself (Indiana v. Edwards) · The court may appoint standby counsel (McKaskle) · No right to self-representation on appeal (Martinez) · Counsel may not concede guilt over the defendant's express objection (McCoy)

Identification procedures

Counsel is required only at post-charge lineups; due process bars police-arranged suggestive procedures that make an identification unreliable.

1. Counsel is required at a post-charge lineup or showup (Wade)
2. No counsel at pre-charge lineups (Kirby) or at photo arrays (Ash)
3. Due process: a police-arranged, unnecessarily suggestive procedure risking misidentification (Perry)
4. Reliability controls: opportunity to view, attention, accuracy of description, certainty, time (Biggers)

Exceptions: An in-court identification after an uncounseled post-charge lineup needs an independent source, shown by clear and convincing evidence · A chance, suggestive encounter not arranged by police does not trigger the due process inquiry (Perry) · A prompt on-the-scene showup can be justified by necessity (Stovall) · A lineup or voice sample is not testimonial, so no Fifth Amendment problem

Brady: disclosure of favorable evidence

The prosecution must disclose favorable, material evidence, impeachment included, unrequested, even if only the police knew it. Bad faith is irrelevant.

1. The evidence is favorable to the accused: it exculpates or impeaches (Giglio)
2. The government suppressed it, willfully or inadvertently, including what only the police know (Kyles)
3. It is material: a reasonable probability of a different result (Bagley)

Exceptions: Destroying merely potentially useful evidence violates due process only on bad faith (Youngblood) · Knowing use of false testimony violates due process (Napue)

Speedy trial and public trial

Speedy trial balances length, reason, assertion and prejudice; closing a courtroom needs an overriding interest, narrow tailoring, alternatives and findings.

1. Speedy trial: length of delay, reason for it, defendant's assertion, prejudice (Barker)
2. The remedy for a speedy-trial violation is dismissal with prejudice
3. Public trial: closure needs an overriding interest, narrow tailoring, alternatives and findings (Waller)
4. The public-trial right reaches suppression hearings and voir dire (Waller; Presley)

Exceptions: The speedy-trial right begins at arrest or charge and does not reach delay in sentencing (Betterman)

The jury trial right

A jury is guaranteed for offenses authorizing more than six months; it needs at least six members and a unanimous verdict from a fair-cross-section venire.

1. A serious offense: more than six months' imprisonment authorized (Baldwin)
2. At least six jurors (Williams; Ballew: five is too few)
3. A unanimous verdict, in state and federal court (Ramos; Burch for six-person juries)
4. A venire drawn from a fair cross-section; the petit jury need not mirror it (Taylor; Duren)
5. Peremptory strikes may not rest on race or sex, for either side (Batson; J.E.B.; McCollum)

Exceptions: No jury right for petty offenses or juvenile delinquency proceedings · Six months or less is presumptively petty (Blanton)

Facts that raise the sentence go to the jury

A fact, other than a prior conviction, that raises the maximum or a mandatory minimum must be found by a jury beyond a reasonable doubt.

1. The fact increases the statutory maximum (Apprendi; Blakely) or a mandatory minimum (Alleyne)
2. It is not the fact of a prior conviction (Almendarez-Torres)
3. So a jury finds it beyond a reasonable doubt, unless the defendant admits it or waives

Exceptions: Whether ACCA offenses occurred on separate occasions is also for a unanimous jury (Erlinger, 2024) · Judges may find facts that guide discretion within the range; the Guidelines are advisory (Booker)

Competency to stand trial

A defendant who cannot rationally consult counsel or grasp the case cannot be tried; a doubt triggers a hearing; the burden may be a preponderance.

1. Present ability to consult with counsel with a reasonable degree of rational understanding (Dusky)
2. A rational as well as factual understanding of the proceedings (Dusky)
3. A bona fide doubt requires a competency hearing, even without a request (Pate; Drope)
4. The state may presume competence; a preponderance burden is allowed (Medina), clear and convincing is not (Cooper)

Exceptions: Trying an incompetent defendant violates due process (Pate) · The standard for pleading guilty or waiving counsel is the same Dusky standard (Godinez v. Moran) · A defendant competent to stand trial may still be denied self-representation if he cannot conduct the trial himself (Indiana v. Edwards) · Forcibly medicating to restore competence needs important state interests and necessity (Sell)

The right to present a defense and be present at trial

A defendant may call witnesses and offer reliable evidence; arbitrary rules cannot block him. He may not be shackled or tried in jail clothes without need.

1. Compulsory process: arbitrary rules barring a whole class of defense witnesses fail (Washington v. Texas)
2. Evidence rules may not be applied mechanistically to exclude reliable, critical defense evidence (Chambers; Holmes)
3. The right to testify: a per se ban on a category of testimony fails (Rock)
4. No visible shackles without a justification specific to the defendant (Deck); no jail clothes over objection (Estelle)

Exceptions: Reasonable, rationally related evidence rules may exclude defense evidence (Holmes; Taylor v. Illinois) · A defendant who disrupts the trial after a warning may be removed (Illinois v. Allen)

Bail and preventive detention

Bail may not be set above what assures appearance, but a person may be held before trial if the state proves danger after a hearing.

1. Bail set higher than reasonably calculated to assure the defendant's appearance is excessive (Stack v. Boyle)
2. There is no absolute right to bail; dangerousness can justify pretrial detention (Salerno)
3. Federal detention: hearing, clear and convincing proof no conditions assure safety (Bail Reform Act, upheld in Salerno)

Exceptions: Pretrial detention under such a scheme is regulatory, not punishment (Salerno)

A valid guilty plea

A plea must be knowing, intelligent and voluntary, with a record showing waiver of the jury, confrontation and self-incrimination rights.

1. Voluntary: not coerced; avoiding a harsher sentence is no coercion (Brady v. United States, 1970: the plea case)
2. Knowing and intelligent: he understands the charge and its direct consequences
3. The record shows waiver of the jury, confrontation and self-incrimination rights (Boykin)
4. An Alford plea is valid even if he claims innocence, given a strong factual basis

Exceptions: A prosecutor may threaten more serious charges that the evidence supports if the defendant refuses to plead (Bordenkircher), but not vindictively (Blackledge) · A broken bargain: enforce it or allow withdrawal (Santobello) · A guilty plea waives earlier non-jurisdictional claims (Tollett), not a challenge to the statute itself (Class) · The judge need not warn of collateral consequences, but counsel must advise on deportation (Padilla) · Withdrawal (federal rule): before acceptance for any reason; after acceptance but before sentence, for a fair and just reason; after sentence, only on appeal or collateral attack

Double jeopardy: when a second prosecution is barred

A second prosecution is barred if jeopardy attached, the first case ended in acquittal or conviction, the offense is the same, and the sovereign is the same.

1. Jeopardy attached: the jury was sworn, or the first witness in a bench trial
2. The first case ended in an acquittal or conviction, or a termination that bars retrial
3. The second charge is the same offense: Blockburger, lesser included offenses included
4. Brought by the same sovereign

Exceptions: Federal and state governments are separate sovereigns (Gamble; Heath), but a state and its city are one (Waller v. Florida) · Collateral estoppel: an issue necessarily decided for the defendant by an acquittal cannot be relitigated (Ashe) · Conspiracy and the target crime are different offenses · Cumulative punishment in one trial is allowed if the legislature authorizes it (Missouri v. Hunter), but not absent a clear statement (Barrett v. United States, 2026)

Cruel and unusual punishment

Non-capital terms fall only if grossly disproportionate; death is barred for juveniles, intellectual disability, non-homicide crimes; status cannot be punished.

1. Non-capital: only grossly disproportionate sentences violate it (Harmelin, Kennedy concurring; Ewing, plurality)
2. Juveniles: no death (Roper); no life without parole for non-homicide (Graham) or mandatory (Miller)
3. Capital: none for intellectual disability (Atkins) or non-homicide crimes against individuals (Kennedy)
4. Status may not be punished (Robinson); conduct may be (Powell)

Exceptions: Camping bans enforced against homeless people do not violate it (Grants Pass, 2024) · A sentencer need not find permanent incorrigibility before imposing life without parole on a juvenile murderer (Jones v. Mississippi) · The Excessive Fines Clause applies to the states (Timbs) · Prison conditions: deliberate indifference is the standard (Farmer)

Burdens of proof in a criminal case

The state proves every element beyond a reasonable doubt; it may put an affirmative defense on the defendant, but not an element, nor a mandatory presumption.

1. Every element, beyond a reasonable doubt (Winship)
2. An affirmative defense that negates no element may be placed on the defendant (Patterson; Martin)
3. An element cannot be shifted to the defendant (Mullaney)
4. A mandatory presumption on an element is invalid; a rational permissive inference is fine (Sandstrom; Ulster County)

Exceptions: Sufficiency: any rational trier of fact could find the elements beyond a reasonable doubt (Jackson v. Virginia) · Suppression and voluntariness are decided by a preponderance (Lego; Matlock) · Insanity may be made the defendant's burden (Leland)

Harmless, structural and plain error

Most constitutional errors reverse unless harmless beyond a reasonable doubt; structural errors always reverse; unpreserved errors get plain-error review.

1. Preserved constitutional error: the state must show it harmless beyond a reasonable doubt (Chapman)
2. Structural error: automatic reversal, with no harmlessness inquiry
3. Unpreserved error: plain-error review

Exceptions: Harmless-error review applies to coerced confessions (Fulminante), Miranda errors, Confrontation errors and misdescribed elements (Neder) · Structural: total denial of counsel, biased judge, race discrimination in grand jury selection (Vasquez) or in the use of peremptory strikes (Batson), denial of self-representation, an unjustified public-trial closure (Presley; Weaver), defective reasonable-doubt instruction, denial of counsel of choice, counsel conceding guilt over the client's objection (McCoy) · Plain error: an error that is clear or obvious, affects substantial rights, and seriously affects the fairness, integrity or public reputation of the proceedings (Olano; Fed. R. Crim. P. 52(b)) · The government may not appeal an acquittal, but may appeal a pretrial suppression order (18 U.S.C. §3731)

Sentencing limits

A harsher sentence after a successful appeal needs recorded reasons, and a law that retroactively raises punishment is an ex post facto violation.

1. A higher sentence after reconviction needs objective reasons in the record, to rebut vindictiveness (Pearce)
2. A law that retroactively increases punishment violates the Ex Post Facto Clause (Calder)
3. Within the statutory range, the Guidelines are advisory (Booker)

Exceptions: A higher sentence is allowed on objective information in the record justifying it, including facts not known at the first sentencing (Wasman; McCullough) · The presumption of vindictiveness applies only where vindictiveness is reasonably likely: not after a vacated guilty plea, or with a different sentencer (Alabama v. Smith; McCullough) · A jury's capital sentencing acquittal bars the death penalty on retrial (Bullington)

Relevance and the Rule 403 balance

Relevant means any tendency to make a consequential fact more or less probable; Rule 403 excludes it only when its dangers substantially outweigh its worth.

1. The fact is of consequence in determining the action
2. The evidence has any tendency to make that fact more or less probable (FRE 401)
3. Relevant evidence is admissible unless the Constitution, a statute or another rule says otherwise (FRE 402)
4. The court may exclude it only if probative value is substantially outweighed by unfair prejudice, confusion, delay or waste (FRE 403)

Exceptions: Equal weight is not enough: 'substantially outweighed' tips the scale toward admission · Where the only point of a prior conviction is felon status, refusing the defendant's offer to admit it can be an abuse of discretion (Old Chief) · A limiting instruction under FRE 105 can reduce the danger instead of excluding the evidence

Who decides: judge under 104(a), jury under 104(b)

The judge decides admissibility facts by a preponderance, bound only by privilege; conditional relevance needs evidence sufficient to support a finding.

1. The judge decides preliminary questions of qualification, privilege and admissibility (FRE 104(a))
2. Standard: a preponderance of the evidence, and the judge is not bound by the rules of evidence except privileges
3. When relevance depends on a fact, the proponent offers evidence sufficient to support a finding that the fact exists (FRE 104(b))
4. The jury then decides whether the conditional fact is true

Exceptions: Privilege is the one body of rules the judge must still obey when deciding a preliminary question · Hearings on the admissibility of a confession are held outside the jury's hearing (FRE 104(c))

Objections, offers of proof and limiting instructions

Object to admitted evidence, make an offer of proof for excluded evidence; a definitive ruling needs no renewal; limited-purpose evidence gets an instruction.

1. Admitted evidence: a timely objection or motion to strike that states the specific ground, unless it is apparent
2. Excluded evidence: an offer of proof, unless the substance is apparent from the context
3. A definitive ruling on the record, even before trial, preserves the claim without renewing it
4. A plain error affecting substantial rights may be noticed even if not preserved
5. Limited-purpose evidence: on request the court restricts it to its proper scope and instructs the jury (FRE 105)

Exceptions: A tentative ruling on a motion in limine must be followed by an objection at trial · A limiting instruction is given 'on timely request'

Judicial notice of adjudicative facts

The court must notice an indisputable fact when a party asks and supplies the information; a civil jury must accept it, a criminal jury need not.

1. The fact is adjudicative and not subject to reasonable dispute
2. It is generally known in the court's territory, or readily determined from sources whose accuracy cannot reasonably be questioned (FRE 201(b))
3. The court must take notice if a party requests it and supplies the necessary information
4. Civil case: the jury must accept the noticed fact as conclusive; criminal case: it may or may not (FRE 201(f))

Exceptions: The court may also take notice on its own · Notice may be taken at any stage of the proceeding · A party is entitled to be heard on the propriety of taking notice on request

Presumptions in civil cases

A civil presumption shifts only the burden of producing evidence to rebut it; the burden of persuasion stays where it started.

1. In a civil case, the presumption is directed against a party
2. That party has the burden of producing evidence to rebut it (FRE 301)
3. The burden of persuasion does not shift: it stays on the party who had it originally
4. A federal statute or another rule may provide otherwise

Exceptions: The rule yields to a federal statute or another rule that provides otherwise

Competence, jurors and what jurors may say

Everyone is competent and needs personal knowledge; after a verdict a juror may speak only of extraneous information, outside influence or a clerical mistake.

1. Every person is competent to testify, but in a civil case state law governs competency on a claim or defense for which state law supplies the rule of decision (FRE 601)
2. A witness needs personal knowledge, shown by evidence sufficient to support a finding (FRE 602)
3. The presiding judge cannot testify as a witness at the trial (FRE 605)
4. A juror cannot testify as a witness at the trial in which she is sitting (FRE 606(a))
5. After the verdict, no testimony about deliberations, votes or mental processes (FRE 606(b)(1))
6. Exceptions: extraneous prejudicial information, outside influence, a clerical mistake on the verdict form (FRE 606(b)(2))

Exceptions: A juror's clear statement showing racial bias in the verdict may be examined (Pena-Rodriguez v. Colorado, constitutional exception) · Religious beliefs and opinions are not admissible to attack or support a witness's credibility (FRE 610)

Proceedings to which the rules apply

The rules govern trials; they do not govern preliminary admissibility rulings, grand juries or sentencing, bail and similar hearings, except privilege.

1. The rules apply to proceedings in United States courts, including civil and criminal trials (FRE 1101(a)-(b))
2. They do not apply to the judge's decision on a preliminary question of fact governing admissibility (FRE 1101(d)(1))
3. They do not apply to grand jury proceedings (FRE 1101(d)(2))
4. They do not apply in miscellaneous proceedings such as sentencing, granting or revoking probation or supervised release, bail, and issuing warrants (FRE 1101(d)(3))
5. The rules on privilege apply at every stage (FRE 1101(c))

Exceptions: A preliminary examination in a criminal case is among the listed miscellaneous proceedings · The listed proceedings are those in which the rules do not apply except privilege; every other proceeding in a United States court is governed by them

Mode and order of questioning

Cross is limited to the scope of direct plus credibility; leading questions are for cross and hostile witnesses, not for friendly direct.

1. The court controls the mode and order of examining witnesses to make procedures effective and protect witnesses
2. Cross-examination is limited to the subject matter of direct and matters affecting credibility
3. The court may allow inquiry into additional matters as if on direct
4. Leading questions should not be used on direct except as necessary to develop testimony
5. Leading questions are ordinarily allowed on cross and for a hostile witness, an adverse party, or a witness identified with an adverse party

Exceptions: A court may let a party ask leading questions on direct to get a young or forgetful witness started (as necessary) · If the court lets cross range beyond the scope of direct, it proceeds as if on direct, so leading is ordinarily improper unless the witness is identified with the adverse party

Refreshing recollection (612) versus recorded recollection (803(5))

Memory revived: the testimony is the evidence. Memory not revived: the record is read in, and it is an exhibit only if the adversary offers it.

1. The witness cannot remember on the stand
2. Counsel shows any writing or object to jog memory
3. The witness testifies from the revived memory: the testimony is the evidence
4. Used while testifying: the adverse party may inspect it, cross-examine on it and introduce the related portions; used before testifying: only if the court decides justice requires (FRE 612(a))

Exceptions: The writing need not be admissible: it is not offered for its truth · If memory is not revived and the record qualifies under FRE 803(5), the record is read into evidence and received as an exhibit only if offered by an adverse party · Irrelevant portions are deleted after an in camera review

Recorded recollection

A record of something the witness once knew but cannot now recall is read to the jury; it is an exhibit only if the adverse party offers it.

1. The record is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately
2. It was made or adopted by the witness when the matter was fresh in the witness's memory
3. It accurately reflects the witness's knowledge
4. If admitted, it may be read into evidence but received as an exhibit only if offered by an adverse party

Exceptions: If reading the record revives memory, Rule 612 applies instead and the testimony is the evidence · The witness need not have written it: a record the witness adopted when fresh may qualify

Excluding witnesses from the courtroom

Witnesses are excluded on request, except a natural-person party, one designated entity representative, an essential person, or a person authorized by statute.

1. On a party's request, or on its own, the court orders witnesses excluded so they cannot hear other testimony
2. A party who is a natural person may stay
3. One officer or employee of a party that is not a natural person, designated by its attorney, may stay (FRE 615(a)(2))
4. A person whose presence a party shows to be essential to presenting the claim or defense may stay
5. A person authorized by statute may stay
6. The court may also bar disclosure of trial testimony to excluded witnesses and bar their access to it (FRE 615(b))

Exceptions: The designated entity representative may also be a witness (a company's claims manager, for example); the exception for an essential person is separate and needs a showing

The court's own witnesses and experts

The court may call and question witnesses, with objections allowed later, and may appoint an expert, who is cross-examinable by every party.

1. The court may call a witness on its own or at a party's request, and each party may cross-examine (FRE 614(a))
2. The court may examine a witness regardless of who called her (FRE 614(b))
3. A party may object to the court's questions at that time or at the next opportunity when the jury is not present (FRE 614(c))
4. The court may appoint an expert witness of its own choosing, or one the parties agree on, and may order the parties to show cause (FRE 706(a))
5. Any party may cross-examine the court's expert, including the party that called her (FRE 706(b)(4))

Exceptions: Compensation of a court-appointed expert is set by the court (FRE 706(c)) · The court may tell the jury that it appointed the expert (FRE 706(d)) · A party may still call its own expert

Lay opinion

A lay witness may opine only if the opinion rests on her perception, helps the jury, and needs no specialized knowledge.

1. Rationally based on the witness's perception
2. Helpful to understand the testimony or to determine a fact in issue
3. Not based on scientific, technical or other specialized knowledge within Rule 702

Exceptions: Speed, sobriety, identity, handwriting familiar from ordinary life and value of one's own property are classic admissible lay opinions · Opinions that need specialized knowledge, such as a diagnosis, are expert opinions subject to FRE 702

Expert testimony: the reliability gate

Since 2023 the proponent must show it is more likely than not that the opinion helps, rests on enough data, uses reliable methods, and applies them reliably.

1. The witness is qualified by knowledge, skill, experience, training or education
2. More likely than not, the testimony will help the trier of fact
3. More likely than not, it rests on sufficient facts or data
4. More likely than not, it is the product of reliable principles and methods
5. More likely than not, the opinion reflects a reliable application of those methods to the facts

Exceptions: The judge is the gatekeeper under FRE 104(a); the Daubert factors are flexible and not exclusive · Gatekeeping applies to experience-based expertise too (Kumho Tire) · Rulings are reviewed for abuse of discretion, and an analytical gap between data and opinion can justify exclusion (Joiner)

Bases, ultimate issues and disclosure of expert opinion

Experts may rely on data experts reasonably use, admissible or not; the jury hears inadmissible data only if its value substantially outweighs prejudice.

1. An expert may base an opinion on facts or data she personally observed or was made aware of (FRE 703)
2. Inadmissible facts or data may be relied on if experts in the field would reasonably rely on them
3. The proponent may disclose inadmissible bases to the jury only if their probative value in evaluating the opinion substantially outweighs their prejudicial effect
4. An opinion is not objectionable just because it embraces an ultimate issue (FRE 704(a))
5. Criminal case: an expert may not state an opinion on whether the defendant had the mental state that is an element of the crime or defense (FRE 704(b))
6. An expert may give an opinion without first testifying to the underlying facts, unless the court requires it (FRE 705)

Exceptions: The expert may describe a defendant's diagnosis and its typical effects; the jury decides the mental state · In a criminal case, an expert conveying an absent analyst's testimonial statements may also trigger the Confrontation Clause (Smith v. Arizona)

Impeaching with a prior inconsistent statement

Ask without showing it; extrinsic proof only after a chance to explain or deny; substantive only if 801(d)(1)(A), 801(d)(2) or an exception applies.

1. Ask the witness about the earlier statement: no need to show it first, but disclose it to opposing counsel on request (FRE 613(a))
2. Extrinsic evidence of the statement is admissible only after the witness has had a chance to explain or deny it and the adverse party can examine her (FRE 613(b))
3. Offered to impeach, it is not offered for its truth
4. It counts for its truth only if it is excluded from hearsay or fits an exception, most often FRE 801(d)(1)(A) or 801(d)(2)

Exceptions: An opposing party's own statement is not subject to the 613(b) sequence: it comes in for its truth under FRE 801(d)(2) · Unless the court orders otherwise, the 613(b) sequence applies

Who may impeach, and what may not be used

Any party may impeach any witness, even its own; a witness's religious beliefs may not be used to attack or support credibility.

1. Any party, including the party that called the witness, may attack the witness's credibility (FRE 607)
2. The party need not show surprise, hostility or damage first
3. Evidence of a witness's religious beliefs or opinions is not admissible to attack or support credibility (FRE 610)
4. Religion may be shown for another purpose, such as bias, when it is relevant to that purpose

Exceptions: A party may not call a witness as a subterfuge to put inadmissible hearsay before the jury (general) · Impeachment still follows the other rules: 608, 609 and 613 limit how

Impeaching with a criminal conviction

Felons get balanced, liars get in: crimen falsi is automatic, other felonies are balanced (more strictly for a defendant), and a decade-old one needs more.

1. Does proving the crime require a dishonest act or false statement (crimen falsi)? If so, admit it, any grade, no balancing (FRE 609(a)(2))
2. Otherwise: was it punishable by death or more than one year in prison? If not, it is not admissible
3. Witness is a criminal defendant: admit only if probative value outweighs prejudicial effect to the defendant (FRE 609(a)(1)(B))
4. Any other witness: admit, subject to Rule 403 (FRE 609(a)(1)(A))
5. More than 10 years since conviction or release, whichever is later: admit only if probative value substantially outweighs prejudice, with reasonable written notice (FRE 609(b))

Exceptions: A pardon or annulment based on rehabilitation (with no later felony), or on innocence, bars the conviction (609(c)) · Juvenile adjudications are admissible only against a witness other than the accused, in a criminal case, if an adult's conviction would be admissible and the evidence is necessary to decide guilt (609(d)) · A pending appeal does not make the conviction inadmissible (609(e)) · A defendant must testify to preserve a claim that the court wrongly allowed the conviction (Luce)

Character for truthfulness and specific instances

Reputation or opinion may attack truthfulness; truthful character only after an attack; specific acts only on cross, with no extrinsic proof.

1. Evidence of untruthful character may be offered by reputation or opinion testimony
2. Evidence of truthful character is admissible only after the witness's character for truthfulness has been attacked (FRE 608(a))
3. The court may allow cross-examination about specific instances of conduct probative of truthfulness or untruthfulness (FRE 608(b))
4. Extrinsic evidence is not admissible to prove those instances: the cross-examiner is bound by the answer
5. The conduct itself must bear on truthfulness; an arrest or accusation is not conduct

Exceptions: Convictions are proved under Rule 609, with extrinsic evidence · Bias is not a 608(b) matter, so extrinsic evidence of bias is allowed · A witness keeps the Fifth Amendment privilege for matters relating only to credibility

Bias, perception and contradiction

Bias and defects of perception may be proved with extrinsic evidence, usually after asking the witness first; a collateral contradiction may not.

1. Bias, interest or a motive to lie is always a proper subject of impeachment (Abel)
2. Extrinsic evidence of bias is allowed (in most courts after a foundation question)
3. Defects of perception, memory or narration may be shown, with extrinsic evidence
4. Contradiction: other evidence showing the testimony is wrong on a relevant point
5. No extrinsic evidence to contradict a witness on a collateral matter

Exceptions: Abel: the Rules do not mention bias, but bias impeachment has always been allowed · Most courts require a foundation first: ask the witness about the bias, then prove it extrinsically if she denies it · Evidence of insurance (FRE 411) and settlements (FRE 408) may be offered to show bias

Rehabilitating with a prior consistent statement

A prior consistent statement comes in only to rebut recent fabrication if made before the motive arose, or to rehabilitate on another ground.

1. The declarant testifies at trial and is subject to cross-examination about the earlier statement
2. The earlier statement is consistent with the declarant's testimony
3. (B)(i): offered to rebut an express or implied charge of recent fabrication or improper influence or motive
4. The statement was made before the alleged motive to fabricate arose (Tome)
5. (B)(ii): or offered to rehabilitate credibility attacked on another ground, such as inconsistency or faulty memory

Exceptions: A statement made after the motive to fabricate arose is not admissible under (B)(i) · (B)(ii) (2014) allows consistent statements to rehabilitate on grounds other than fabrication, such as an attack by prior inconsistent statement

Impeaching a hearsay declarant

When a hearsay statement comes in, its declarant may be attacked as if testifying, including by an inconsistent statement made at any time.

1. A hearsay statement, or an opposing-party statement under 801(d)(2)(C), (D) or (E), has been admitted
2. The declarant's credibility may be attacked as if the declarant had testified
3. An inconsistent statement may be used whenever made
4. The declarant need not have had a chance to explain or deny it

Exceptions: If the party against whom the statement was admitted calls the declarant, it may examine him as if on cross-examination

Character evidence: the ban and the criminal-case exceptions

Character never proves conduct, except that a criminal defendant may open the door, and then the prosecutor may walk through it.

1. Evidence of a person's character is not admissible to prove action in conformity on a particular occasion (FRE 404(a)(1))
2. Criminal case: the defendant may offer a pertinent trait of his own character
3. Criminal case: the defendant may offer a pertinent trait of the victim
4. If the defendant opens the door, the prosecutor may rebut; if the defendant offered the victim's trait, the prosecutor may offer the defendant's same trait
5. Homicide: the prosecutor may offer the victim's peacefulness to rebut evidence that the victim was the first aggressor

Exceptions: The 404(a)(2) exceptions apply only in criminal cases; in a civil case character may not prove conduct, except under Rule 415 in sexual-assault and child-molestation cases · Character of a witness for truthfulness follows Rules 607-609 · Past sexual behavior of an alleged victim is limited by Rule 412

Methods of proving character

When character is admissible, prove it by reputation or opinion; on cross, 'have you heard' and 'do you know' questions may probe specific acts.

1. When character evidence is admissible, it may be proved by reputation or opinion testimony
2. On cross-examination of a character witness, the court may allow inquiry into relevant specific instances
3. The cross-examiner needs a good-faith basis for the instance
4. Specific instances are proved directly only when character is an essential element of a charge, claim or defense (FRE 405(b))

Exceptions: 'Have you heard' questions test a reputation witness; 'do you know' questions test an opinion witness · The cross-examiner is limited to testing the witness's knowledge, not proving the act as substantive evidence

Other crimes, wrongs and acts

Other acts cannot show propensity but may prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake.

1. Offered for a non-propensity purpose, not to show the person acted in character
2. Permitted purposes include motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake and lack of accident
3. A jury could reasonably find that the person committed the other act (Huddleston, FRE 104(b))
4. Probative value is not substantially outweighed under Rule 403
5. Criminal case: the prosecutor gives reasonable written pretrial notice stating the purpose and the reasoning

Exceptions: The list of purposes is illustrative: 'such as' · A limiting instruction under Rule 105 may be requested · The rule applies in civil as well as criminal cases

Habit and routine practice

Habit is a specific, regular response to a recurring situation and proves conformity; a general disposition is character and does not.

1. A person's habit or an organization's routine practice
2. A specific, regular, nearly automatic response to a particular situation
3. Offered to prove that on a particular occasion the person or organization acted in accordance with it

Exceptions: No corroboration and no eyewitness is required · An organization's routine practice counts the same way

Rule 412: past sexual conduct of a victim

Rule 412 shields an alleged victim's other sexual behavior and predisposition, with narrow criminal exceptions and a motion procedure.

1. Evidence of a victim's other sexual behavior or sexual predisposition is inadmissible in a case involving alleged sexual misconduct, civil or criminal
2. Criminal exceptions: another source of semen, injury or physical evidence; specific instances with the accused (consent) or offered by the prosecutor; evidence the Constitution requires
3. Procedure: a written motion at least 14 days before trial, notice to the victim, an in camera hearing

Exceptions: In a civil case, 412 evidence is admitted only if its probative value substantially outweighs harm to any victim and unfair prejudice to any party · A victim's reputation may be admitted in a civil case only if the victim placed it in controversy

Rules 413 to 415: the accused's other sexual offenses

In sexual-assault and child-molestation cases, the court may admit the defendant's other such offenses on any relevant matter, including propensity.

1. Rules 413 and 414: in a criminal sexual-assault or child-molestation case, the court may admit the defendant's other such offenses on any relevant matter, including propensity
2. Rule 415: the same in a civil case based on sexual assault or child molestation
3. The offering party discloses the evidence at least 15 days before trial (Rules 413(b), 414(b), 415(b)), unless the court allows later for good cause

Exceptions: Rule 403 still applies to Rules 413 to 415 evidence · A conviction for the earlier offense is not required

Authentication

Authentication needs only evidence sufficient to support a finding that the item is what the proponent says; Rule 901(b) lists examples.

1. The proponent offers evidence sufficient to support a finding that the item is what the proponent claims
2. Testimony of a witness with knowledge (901(b)(1))
3. Lay opinion on handwriting based on familiarity not acquired for the litigation (901(b)(2))
4. Distinctive characteristics and the circumstances (901(b)(4))
5. Voice identified by someone who has heard it (901(b)(5))
6. A process or system that produces an accurate result (901(b)(9))

Exceptions: Authentication is not admissibility: an authentic document may still be hearsay or privileged · Self-authenticating items need no extrinsic evidence of authenticity (FRE 902) · Rule 901(b) is a list of examples, not the exclusive methods

Self-authenticating evidence

Some items prove themselves: sealed or certified public documents, newspapers, trade labels, notarized papers and certified business or electronic records.

1. Domestic public documents under seal and signature
2. Certified copies of public records
3. Newspapers and periodicals
4. Trade inscriptions and labels
5. Acknowledged (notarized) documents
6. Certified domestic business records (902(11)), with written notice
7. Certified records generated by an electronic process or copied from an electronic device (902(13), (14))

Exceptions: Self-authenticating is not self-admitting: hearsay, privilege and relevance objections remain · A 902(11) certification needs reasonable written notice and a chance to inspect · A subscribing witness need not testify to authenticate a writing unless the law governing its validity requires it (FRE 903)

Real, demonstrative and experimental evidence

Real evidence is the thing itself, demonstrative evidence illustrates, and an experiment needs conditions substantially similar to the event.

1. Real evidence: a witness identifies the object as the one involved, and it is in substantially the same condition (FRE 901(a))
2. A chain of custody matters when the item is fungible or its condition could have changed; gaps usually go to weight
3. A photograph, diagram or model: a witness who knows the subject says it fairly and accurately depicts it (FRE 901(b)(1))
4. An experiment or demonstration: conditions substantially similar to those at issue; dissimilarities usually go to weight
5. Rules 403 and 107 still apply to all of it

Exceptions: An illustrative aid is not evidence (FRE 107); a model that is itself offered as evidence is real or demonstrative evidence

The original-document rule

Only when you prove the content of a writing, recording or photograph do you need the original, unless a duplicate or an excuse applies.

1. Is the proponent trying to prove the content of a writing, recording or photograph?
2. If so, the original is required (FRE 1002)
3. A duplicate is admissible unless a genuine question exists about authenticity or it would be unfair (FRE 1003)
4. Other evidence of content is allowed if the original is lost or destroyed without bad faith, cannot be obtained, is in the opponent's control after notice, or is collateral (FRE 1004)

Exceptions: A fact that exists independently of a writing may be proved by a witness who knows it, even if a document also records it · The proponent's bad-faith destruction removes the excuse

Originals, duplicates, copies of public records and who decides

An original includes electronic printouts and photo negatives; public-record copies need certification; the jury decides whether the writing existed.

1. An 'original' is the writing itself or a counterpart intended to have the same effect; for electronic data, any printout readable by sight that accurately reflects it; for a photograph, the negative or a print (FRE 1001(d))
2. A 'duplicate' is a counterpart that accurately reproduces the original by a mechanical, photographic, chemical, electronic or similar process (FRE 1001(e))
3. Content of an official record may be proved by a copy certified under Rule 902(4) or testified correct by a witness who compared it (FRE 1005)
4. Content may be proved by the testimony, deposition or written statement of the party against whom it is offered, without accounting for the original (FRE 1007)
5. The judge decides whether the Rule 1004 and 1005 conditions are met; the jury decides under Rule 104(b) whether the writing ever existed, whether another is the original, and whether other evidence of content is accurate (FRE 1008)

Exceptions: The original-document rule still asks whether the proponent is proving content, not an independent fact

Summaries and illustrative aids

Since 2024, a summary of voluminous records is evidence even if the records are not admitted, if they are made available; an illustrative aid is not evidence.

1. Rule 1006: a summary, chart or calculation may prove the content of voluminous admissible records that cannot be conveniently examined in court
2. It is admissible whether or not the underlying records have been introduced
3. The proponent makes the originals or duplicates available for examination or copying
4. Rule 107: an illustrative aid may be used if its utility in helping the jury understand is not substantially outweighed by unfair prejudice, confusion or delay
5. An illustrative aid is not evidence and goes to the jury room only by consent or for good cause

Exceptions: A summary offered only to help the jury follow the evidence falls under Rule 107, not Rule 1006

The rule of completeness

If a party puts in part of a statement, the adversary may require any other part that fairness requires, even over a hearsay objection and even if oral.

1. A party introduces all or part of a statement
2. An adverse party may require the introduction, at that time, of any other part, or any other statement, that in fairness ought to be considered at the same time
3. The statement may be written, recorded or oral (2023 text)
4. The adverse party may do so over a hearsay objection

Exceptions: The remainder must be needed to explain or put the first part in context, not merely helpful to the adverse party

Attorney-client privilege

A confidential communication between client and lawyer for legal advice is privileged; crime-fraud, joint clients and lawyer-client disputes are the exceptions.

1. A communication
2. Between client (or prospective client) and lawyer or the lawyer's agent
3. Made in confidence
4. For the purpose of obtaining or giving legal advice

Exceptions: Crime-fraud: the client sought the lawyer's help to commit or conceal an ongoing or future crime or fraud · Joint clients: no privilege between them in a later dispute · Disputes between lawyer and client, such as fees · Disclosure to a stranger defeats confidentiality; a necessary third party (an interpreter, an assistant) does not · The privilege survives the client's death (Swidler & Berlin) and covers corporate employees' communications to counsel for legal advice (Upjohn) · Communications are privileged, not underlying facts · Inadvertent disclosure in a federal proceeding is no waiver if reasonable steps were taken to prevent it and to rectify it promptly (FRE 502(b))

Work product

Materials prepared in anticipation of litigation yield only to substantial need; a lawyer's mental impressions are protected almost absolutely.

1. A document or tangible thing
2. Prepared in anticipation of litigation or for trial
3. By or for a party or its representative, including its attorney, consultant or agent
4. Fact work product is discoverable only on substantial need and inability to get the substantial equivalent without undue hardship (FRCP 26(b)(3)(A))
5. Opinion work product (mental impressions, conclusions, opinions, legal theories) is protected almost absolutely (FRCP 26(b)(3)(B))

Exceptions: The lawyer, not only the client, may assert it (Hickman v. Taylor) · The underlying facts remain discoverable by other means, such as depositions · Disclosure to an adversary waives it

Waiver of privilege and work product (FRE 502)

An intentional waiver reaches the same subject only when fairness demands; an inadvertent disclosure is no waiver if reasonable steps were taken.

1. Intentional disclosure in a federal proceeding waives undisclosed material only if the waiver is intentional, the matters concern the same subject, and fairness requires them to be considered together (FRE 502(a))
2. Inadvertent disclosure in a federal proceeding is not a waiver if the holder took reasonable steps to prevent it (FRE 502(b))
3. And the holder promptly took reasonable steps to rectify the error (FRE 502(b))
4. A federal court's order that disclosure is not a waiver binds every other federal or state proceeding (FRE 502(d))

Exceptions: A party agreement binds only the parties unless it is incorporated into a court order (FRE 502(e)) · Disclosure in a state proceeding is judged by the law of the state or federal law, whichever protects more (FRE 502(c))

Spousal testimonial privilege

In a criminal case the witness-spouse alone holds the privilege to refuse to testify against the accused spouse, and it ends with the marriage.

1. A criminal proceeding
2. The witness is married to the accused when she testifies
3. The witness-spouse holds the privilege: she may refuse to testify against the accused or choose to testify
4. It covers any adverse testimony, not only communications

Exceptions: The accused cannot block a willing spouse (Trammel) · The privilege ends with divorce · It does not stop the government from using other evidence · No privilege when the accused is charged with a crime against the witness-spouse or a child of either (general)

Confidential marital communications

Confidential communications between spouses made during the marriage are privileged in civil and criminal cases, and the privilege survives divorce.

1. A communication between spouses (acts and observations are not communications)
2. Made in confidence, in private
3. During a valid marriage
4. Either spouse may generally assert it

Exceptions: It applies in civil and criminal cases · It survives divorce or death for communications made during the marriage · Not available for communications in furtherance of a joint crime, or in suits between the spouses (general)

Psychotherapist-patient and other privileges

Federal law recognizes a psychotherapist-patient privilege with no balancing test, but no general physician-patient privilege.

1. A confidential communication
2. Between a licensed psychotherapist (including a licensed clinical social worker) and a patient
3. Made in the course of diagnosis or treatment

Exceptions: No balancing: importance of the evidence does not defeat the privilege (Jaffee) · No general federal physician-patient privilege (general) · Clergy-penitent communications are privileged (general) · In a civil case, state privilege law governs a claim or defense for which state law supplies the rule of decision, such as a diversity contract claim (FRE 501); federal common law governs federal-question and criminal cases

The five polite exclusions (FRE 407-411)

Fixing, settling, paying medical bills, pleading and insuring cannot prove fault or the claim, but each may be offered for another purpose.

1. 407: measures taken after an injury are not admissible to prove negligence, culpable conduct, defect or need for a warning
2. 408: compromise offers and statements in negotiations are not admissible to prove or disprove the validity or amount of a disputed claim, or to impeach by a prior inconsistent statement or a contradiction
3. 409: offers to pay medical expenses are not admissible to prove liability; accompanying statements are not protected
4. 410: withdrawn guilty pleas, nolo pleas and statements in plea talks with a prosecutor are not admissible against the defendant
5. 411: liability insurance is not admissible to prove negligence or wrongful conduct

Exceptions: 407: ownership, control or feasibility if disputed; impeachment (narrowly read by many courts) · 408(a)(2): statements made in negotiations with a public office exercising regulatory, investigative or enforcement authority are admissible in a criminal case · 408(b): witness bias or prejudice, negating a claim of undue delay, proving obstruction of a criminal investigation · 407: measures taken by someone other than the party are generally not covered (general, majority view) · 410: fairness completion; perjury prosecution under oath with counsel · 411: bias, agency, ownership or control

What is hearsay?

Hearsay is an out-of-court statement offered to prove the truth of what it asserts; if it is offered for any other purpose, it is not hearsay.

1. A statement: an oral or written assertion, or conduct intended as an assertion
2. By a declarant, a person
3. Not made while testifying at the current trial or hearing
4. Offered to prove the truth of the matter asserted
5. Inadmissible unless an exclusion in Rule 801(d) or an exception applies (FRE 802)

Exceptions: Not hearsay: verbal acts, effect on the listener, circumstantial state of mind, impeachment, knowledge, notice and foundation · Conduct not intended as an assertion, and the output of machines and animals, are not statements by a person

A testifying witness's prior statements: inconsistent and identification

A declarant who testifies and faces cross-examination may have an earlier inconsistent statement or identification admitted for its truth.

1. The declarant testifies at the current trial or hearing
2. The declarant is subject to cross-examination about the earlier statement
3. (A) The statement is inconsistent with the declarant's testimony (text effective December 1, 2026)
4. (C) The statement identifies a person the declarant perceived earlier

Exceptions: Memory loss at trial does not defeat cross-examination for an identification (Owens) · Through November 30, 2026 only: (A) also required that the statement was given under penalty of perjury at a trial, hearing, other proceeding or deposition · From December 1, 2026 (Supreme Court order of April 8, 2026; both 2027 sittings fall after that date): no oath or proceeding requirement. Rules 403 and 613 still apply · Rules 609 and 613 are not amended by the April 2026 order; only Rule 801 is

Opposing party's statements

A party's own words, adopted words, authorized speaker, scope-of-employment agent, and coconspirator are not hearsay when offered against that party.

1. The statement is offered against an opposing party
2. (A) The party's own statement
3. (B) A statement the party adopted or believed to be true
4. (C) A statement by a person the party authorized to speak on the subject
5. (D) A statement by the party's agent or employee on a matter within the scope of that relationship, made while it existed
6. (E) A statement by a coconspirator during and in furtherance of the conspiracy

Exceptions: No personal knowledge is required and the statement need not be against the speaker's interest · The court must consider the statement itself (Bourjaily), but under the rule's text it does not by itself establish authority, the relationship or the conspiracy: some independent evidence is needed (1997 amendment) · Adoption by silence needs circumstances in which a person would naturally deny the statement

Statements binding a successor in interest

Since 2024, a statement admissible against a predecessor or its principal is also admissible against the successor whose claim derives from it.

1. A party's claim, defense or potential liability is directly derived from a declarant or the declarant's principal
2. A statement admissible against the declarant or principal under 801(d)(2) is admissible against the party
3. Statements made after the transfer do not qualify

Exceptions: Applies to estates, assignees and trustees, for example

Present sense impression and excited utterance

A present sense impression is live commentary made while or right after perceiving; an excited utterance is a startled remark made under stress, however late.

1. Present sense impression: a statement describing or explaining an event or condition
2. Present sense impression: made while or immediately after the declarant perceived it
3. Excited utterance: a statement relating to a startling event or condition
4. Excited utterance: made while the declarant was under the stress of excitement that it caused

Exceptions: A present sense impression needs no startling event; an excited utterance needs no contemporaneity as long as the stress lasts · The declarant's availability is irrelevant under every Rule 803 exception · A narration of memory ('this morning I saw...') is neither

Then-existing mental, emotional or physical condition

Statements of how the declarant feels or what she plans now come in; statements of memory or belief to prove the past fact do not, except wills.

1. A statement of the declarant's then-existing state of mind (motive, intent, plan), emotion, sensation or physical condition
2. A statement of intent may prove the declarant later acted on it (Hillmon)
3. Not a statement of memory or belief offered to prove the fact remembered or believed
4. Exception: memory or belief that relates to the validity or terms of the declarant's will

Exceptions: 'I fear Dan' shows state of mind; 'Dan threatened me last week' offered to prove the threat is a statement of memory · 'I have a headache' is a physical condition; 'I had a headache last week' is not then-existing · Using 'I am meeting him tonight' to prove what the other person did is disputed: Hillmon allowed it, Congress's committee report would not, and many courts require independent evidence of his conduct (general)

Statements for medical diagnosis or treatment

Statements to medical providers reasonably pertinent to diagnosis or treatment, including symptoms and general cause, come in; fault generally does not.

1. The statement is made for, and reasonably pertinent to, medical diagnosis or treatment
2. It describes medical history, past or present symptoms or sensations, their inception, or their general cause

Exceptions: Statements about fault are not ordinarily pertinent · Covers statements to doctors, nurses and emergency technicians, and to a doctor consulted only to testify · A parent may speak on a child's behalf

Records of a regularly conducted activity

A business record needs a person with knowledge, a regular practice, timely entry, a custodian or certification, and no sign of untrustworthiness.

1. Made at or near the time by, or from information transmitted by, someone with knowledge
2. Kept in the course of a regularly conducted activity of a business, organization, occupation or calling
3. Making the record was a regular practice of that activity
4. Shown by the custodian or another qualified witness, or by a 902(11) or (12) certification
5. The opponent does not show that the source, method or circumstances indicate a lack of trustworthiness

Exceptions: Information from an outsider with no business duty is hearsay within hearsay and needs its own exception (FRE 805) · The custodian need not have personal knowledge of the entry · Records prepared in anticipation of litigation are usually untrustworthy

Absence of a business or public record

A matter missing from regularly kept records did not occur; in a criminal case a certification needs 14 days' notice and a 7-day objection window.

1. 803(7): evidence that a matter is not included in a regularly kept business record, offered to prove the matter did not occur or exist
2. A record of that kind was regularly kept, and the opponent does not show a lack of trustworthiness
3. 803(10): testimony or a Rule 902 certification that a diligent search failed to disclose a public record or statement
4. In a criminal case, the prosecutor intending to offer a certification gives written notice at least 14 days before trial
5. The defendant has 7 days after receiving the notice to object in writing, or the objection is lost

Exceptions: The court may set different times for the notice and the objection · The notice-and-demand procedure in 803(10)(B) responds to Melendez-Diaz, which held a certificate of analysis testimonial (general)

Public records

Public records: agency activities, duty-to-report observations (not police observations in criminal cases), and findings of authorized investigations.

1. A record or statement of a public office
2. It sets out the office's activities
3. Or a matter observed while under a legal duty to report, but not, in a criminal case, a matter observed by law-enforcement personnel
4. Or, in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation
5. The opponent does not show that the source or circumstances indicate a lack of trustworthiness

Exceptions: Factual findings include conclusions and opinions (Beech Aircraft) · Statements by third parties inside the report need their own exception

Learned treatises

A treatise shown to an expert on cross, or relied on by the expert on direct, and established as reliable may be read to the jury, not received as an exhibit.

1. A statement in a treatise, periodical or pamphlet on a subject of history, medicine or other science or art
2. Called to the attention of an expert on cross-examination, or relied on by the expert on direct
3. The publication is established as a reliable authority
4. It may be read into evidence but not received as an exhibit

Exceptions: Reliability may be established by the expert's admission, another expert's testimony, or judicial notice

Ancient documents and market reports

A document prepared before 1998 whose authenticity is shown, and market lists and directories people rely on, are excepted from hearsay.

1. 803(16): a statement in a document prepared before January 1, 1998, whose authenticity is established
2. 803(17): market quotations, lists, directories or other compilations generally relied on by the public or by persons in particular occupations
3. None needs the declarant to be unavailable

Exceptions: The 1998 date is fixed, not a rolling twenty years (2017 amendment); Rule 901(b)(8) separately sets 20 years for authentication · Authenticity of the ancient document must still be established

Reputation concerning character

A person's reputation for a trait among associates or in the community is a hearsay exception, which is why reputation witnesses may testify.

1. A reputation among a person's associates or in the community
2. Concerning the person's character
3. Admissible whether or not the declarant is available (FRE 803(21))

Exceptions: 803(21) is the hearsay exception behind reputation testimony of character witnesses under Rules 405(a) and 608(a) · It answers only the hearsay objection: Rules 404, 405 and 608 still decide whether character may be proved at all

Judgment of a previous conviction

A final felony judgment after trial or guilty plea proves any fact essential to it; nolo pleas and misdemeanors do not qualify.

1. (A) The judgment was entered after a trial or a guilty plea, but not a nolo contendere plea
2. (B) The crime was punishable by death or by imprisonment for more than a year
3. (C) The evidence is offered to prove any fact essential to the judgment
4. (D) When the prosecutor offers it in a criminal case for a purpose other than impeachment, the judgment must be against the defendant

Exceptions: The pendency of an appeal may be shown but does not affect admissibility · A judgment of acquittal is not a judgment of conviction and is not within the rule · Offered only to impeach a witness, a conviction is governed by Rule 609

Unavailability of the declarant

SAILS: privilege, absent, ill or dead, lacks memory, stubborn refusal; but not if the proponent procured the absence.

1. Privilege: the court rules that a privilege exempts the declarant from testifying
2. Stubborn refusal: the declarant refuses to testify despite a court order
3. Lack of memory: the declarant testifies to not remembering the subject matter
4. Ill or dead: the declarant is unable to testify because of death or a then-existing infirmity, physical or mental illness
5. Absent: the declarant is absent and the proponent cannot procure attendance (or testimony) by process or other reasonable means

Exceptions: Not unavailable if the proponent procured or wrongfully caused the unavailability to prevent testimony

Former testimony

Former testimony of an unavailable witness comes in against a party who had the opportunity and a similar motive to examine; civil predecessors count.

1. The declarant is unavailable
2. The testimony was given as a witness at a trial, hearing or lawful deposition, in this or another proceeding
3. It is offered against a party who had, or in a civil case whose predecessor in interest had, an opportunity and similar motive to develop it by direct, cross or redirect

Exceptions: Grand-jury testimony offered against the accused fails: the accused had no opportunity to cross-examine

Statement under belief of imminent death

A dying declaration comes in only in a homicide prosecution or civil case, about the cause or circumstances of what the declarant believed was impending death.

1. The declarant is unavailable
2. Offered in a homicide prosecution or a civil case
3. The declarant believed death was imminent when speaking
4. The statement concerns the cause or circumstances of what the declarant believed to be impending death

Exceptions: Not available in other criminal prosecutions, such as robbery or assault, unless it is a homicide · The declarant need not actually die (general)

Statement against interest

An unavailable declarant's statement so against her interest that she would not make it unless true comes in; penal-interest statements need corroboration.

1. The declarant is unavailable
2. When made, the statement was so contrary to the declarant's proprietary or pecuniary interest, or had so great a tendency to invalidate her claim against someone else or to expose her to civil or criminal liability, that a reasonable person would not have made it unless true
3. Criminal case, statement exposing the declarant to criminal liability: corroborating circumstances that clearly indicate trustworthiness, considering the totality of circumstances and any corroborating evidence (2024 text)
4. Only the genuinely self-inculpatory remarks qualify (Williamson)

Exceptions: Applies to both the prosecution and the defense · Different from an opposing party's statement: the declarant is a non-party and must be unavailable

Forfeiture by wrongdoing

A party who wrongfully makes a witness unavailable, intending to stop her from testifying, forfeits hearsay and confrontation objections to her statements.

1. The statement is offered against a party
2. That party wrongfully caused, or acquiesced in wrongfully causing, the declarant's unavailability
3. The party did so intending that result: to prevent the declarant from testifying

Exceptions: The Confrontation Clause forfeiture doctrine requires the same purpose (Giles); knowledge alone is not enough

Statement of personal or family history

An unavailable declarant's statement about her own or a relative's birth, marriage or family ties is admitted, even without personal knowledge.

1. The declarant is unavailable
2. (A) The statement concerns the declarant's own birth, adoption, legitimacy, ancestry, marriage, divorce, relationship by blood, adoption or marriage, or similar facts of personal or family history
3. (A) The declarant need not have had a way of acquiring personal knowledge of the fact
4. (B) Or the statement concerns another person's such facts, or death, and the declarant was related to that person by blood, adoption or marriage, or so intimately associated with the family that the information is likely to be accurate

Exceptions: Unlike the 803(19) reputation exception, 804(b)(4) requires unavailability of the declarant

Hearsay within hearsay

Double hearsay is admissible only if each layer is excluded from hearsay or fits an exception.

1. Break the statement into layers
2. Test the outer layer: is it excluded from hearsay or within an exception?
3. Test each inner layer the same way
4. The statement is admissible only if every layer qualifies (FRE 805)

Exceptions: The inner layer fits only if the declarant is the opposing party, or an agent speaking within scope, for 801(d)(2), or another exception applies · Different layers may use different rules: 803(6) for the log, 801(d)(2)(A) for the party's own words

The residual exception

The residual exception needs trustworthiness, higher probative value than other evidence the proponent can obtain, and notice.

1. Sufficient guarantees of trustworthiness in the totality of circumstances, and corroborating evidence if any
2. More probative on the point than any other evidence the proponent can obtain through reasonable efforts
3. Reasonable written pretrial notice of the substance and the declarant's name
4. It applies even when the statement is a near miss under Rule 803 or 804 (the 2019 text dropped the old not-specifically-covered wording)

Exceptions: Rule 807 is rarely the best answer: use it only when no categorical exception fits · The court may excuse late notice for good cause

Testimonial hearsay and the Confrontation Clause

In a criminal case, testimonial hearsay against the accused needs an unavailable declarant and a prior chance to cross-examine, however reliable it seems.

1. Criminal prosecution, with the statement offered against the accused
2. The declarant does not testify and face cross-examination at trial
3. The statement is testimonial
4. It is admissible only if the declarant is unavailable and the accused had a prior opportunity to cross-examine (or forfeited the right)

Exceptions: If the declarant testifies and can be cross-examined about the statement, the Clause places no bar · Nontestimonial hearsay is governed by the hearsay rules alone · The Clause does not apply in civil cases · The accused's own statements raise no Confrontation issue, since the accused is the declarant; coconspirator statements in furtherance, and routine business and public records not prepared for trial, are generally nontestimonial

Testimonial or not: the primary-purpose test

A statement is testimonial when its primary purpose is to establish past events for prosecution; one made to meet an ongoing emergency is not.

1. Look at the primary purpose of the exchange, judged objectively
2. Ongoing emergency: the primary purpose is to meet the emergency, so nontestimonial (Davis, Bryant)
3. No emergency and the purpose is to establish past events for prosecution: testimonial (Hammon)
4. Statements to people who are not police, such as a teacher, are much less likely to be testimonial (Clark)
5. Sworn lab certificates made for trial, affidavits and prior testimony are testimonial (Melendez-Diaz)

Exceptions: An ongoing emergency can extend to a threat to the public (Bryant) · A surrogate analyst cannot introduce an absent analyst's testimonial report (Bullcoming, general) · An expert may not relay an absent analyst's testimonial statements as the basis for her opinion (Smith v. Arizona)

Face-to-face confrontation and child witnesses

The accused may face the witnesses at trial; a child may testify behind a screen or by one-way video only after a case-specific finding of necessity.

1. The Confrontation Clause guarantees a face-to-face meeting with witnesses at trial (Coy v. Iowa)
2. It may give way only to an important public interest, such as protecting a child witness from trauma
3. The trial court hears evidence and finds that this child would be traumatized by the defendant's presence (Maryland v. Craig)
4. The other safeguards remain: oath, full cross-examination, and the jury's view of the witness

Exceptions: A generalized legislative finding or a statute that mandates a screen does not replace the case-specific finding (Coy; reaffirmed in Pitts v. Mississippi, 2025) · The trauma must come from the defendant's presence and be more than mere nervousness (Craig) · A violation is a trial error reviewed for harmlessness

Codefendants' confessions: Bruton and Samia

A nontestifying codefendant's confession naming the defendant is barred at a joint trial; one redacted so it does not name him, with an instruction, is allowed.

1. A joint trial of two or more defendants
2. The prosecutor offers a nontestifying codefendant's confession
3. It names or obviously refers to the other defendant: the Clause bars it even with a limiting instruction (Bruton)
4. A redaction that does not name or obviously refer to the defendant, such as 'the other person', with a limiting instruction, is permitted (Samia)

Exceptions: The confession is admissible only against the confessing codefendant · If the codefendant testifies and is cross-examined, the Clause is satisfied · An obvious redaction, such as a blank or the word 'deleted', still points at the defendant and is barred (Gray v. Maryland)

Fee simple: absolute, determinable, or subject to a condition?

'So long as' ends the estate by itself; 'but if … may re-enter' ends it only when the grantor acts; a gift over to a stranger shifts it automatically.

1. Fee simple absolute: no limiting words at all
2. Duration words ('so long as', 'while', 'until'): fee simple determinable, ends automatically
3. Condition plus a right to re-enter ('but if'): fee simple subject to condition subsequent
4. Gift over to a third party: fee simple subject to an executory limitation
5. Grantor keeps a possibility of reverter or a right of entry

Exceptions: Courts construe doubtful language as a condition subsequent or a covenant rather than a determinable fee, because forfeitures are disfavored · A statute may limit how long a possibility of reverter or a right of entry lasts: the stem will say · A fee tail is abolished in nearly every state

Life estates and the duty not to commit waste

A life tenant may use and transfer the estate for the measuring life, must not commit waste, and pays ordinary taxes and interest up to the land's income.

1. The estate lasts for the tenant's life, or for another's life (pur autre vie)
2. The life tenant may possess, lease, mortgage or convey, but only for the measuring life
3. No voluntary waste: acts that destroy or diminish value
4. No permissive waste: neglected repairs, unpaid ordinary taxes
5. Ordinary taxes and mortgage interest: the life tenant pays up to the land's income (its rental value if she occupies it)

Exceptions: The life tenant pays mortgage interest up to the land's income; the principal is the remaindermen's burden. One who pays off the principal to protect the land may get contribution in proportion to the value of the interests · Special assessments for long-lasting public improvements are apportioned between the life tenant and the remaindermen · Open-mines doctrine: a life tenant may keep working mines that were open when the estate began · The holder of the future interest may sue for waste, or pay a tax or repair cost and recoup it

Traditional rule: Ameliorative waste, a change that raises the land's value, is still waste.
Modern trend: A value-raising change is allowed where conditions have changed and the remaindermen are not harmed.

What the grantor keeps

After a lesser estate the grantor has a reversion; after a fee simple the grantor has a possibility of reverter or a right of entry.

1. After a life estate or term of years: a reversion
2. After a fee simple determinable: a possibility of reverter
3. After a fee simple subject to condition subsequent: a right of entry
4. All three are interests the grantor keeps, not interests given to a transferee

Exceptions: A reversion arises by operation of law: the grantor needs no express words to keep it · A statute may cap how long a possibility of reverter or right of entry lasts: the stem will say

Remainders: vested or contingent?

A remainder waits for the prior estate to end naturally: vested if the taker is alive and unconditioned, contingent if unborn or conditioned.

1. It takes effect when a prior estate of lesser duration ends naturally
2. It does not cut the prior estate short
3. Taker unborn or unascertained, or a condition precedent unmet: contingent
4. Taker alive and ascertained, no condition precedent: vested
5. A vested remainder may be indefeasible, subject to open, or subject to complete divestment

Exceptions: A vested remainder to a named person needs no survival of the life tenant: it passes to the taker's heirs or devisees · Shelley's Case and the destructibility of contingent remainders are abolished in nearly every state; Worthier Title is abolished or kept only as a rule of construction in most · A vested remainder is transferable; a remainder in unborn persons cannot be conveyed until the takers exist

Executory interests: shifting and springing

A transferee's interest that follows a fee simple, or cuts another estate short, is executory, never a remainder.

1. Held by a transferee, not by the grantor
2. Follows a fee simple, cuts a prior estate short, or starts after a gap
3. Shifting: takes from another transferee
4. Springing: takes from the grantor at a future date or event

Exceptions: 'A remainder cannot follow a fee simple': in 'to A, but if X, then to B', B holds an executory interest · Executory interests are subject to the common-law Rule Against Perpetuities (an MBE topic that NextGen leaves out)

Class gifts and the rule of convenience

A class stays open while members can still be born, but closes as soon as any member may demand possession (the rule of convenience).

1. A gift to a group described by a label ('children', 'grandchildren')
2. The class stays open while a member can still be born; a child in gestation counts
3. A member's remainder is vested subject to open once one member exists
4. Rule of convenience: the class closes when any member may demand possession
5. Members born after the class closes take nothing

Exceptions: The rule of convenience is a rule of construction: a contrary intent in the instrument controls · No one is the 'heir' of a living person: a remainder to the heirs of a living person is contingent

Merger, Shelley's Case and Worthier Title

Merger joins a present estate and the next vested estate in one owner; Shelley's Case and Worthier Title treat heirs' remainders as the ancestor's own.

1. Merger: one person comes to hold a present estate and the next vested estate
2. The smaller estate is absorbed, and the owner holds the larger one
3. No merger while a different person holds a vested estate between the two
4. Rule in Shelley's Case: a life estate in A with a remainder to A's heirs gives A a fee simple
5. Doctrine of Worthier Title: a remainder to the grantor's own heirs is a reversion in the grantor

Exceptions: Shelley's Case is abolished in nearly every state; Worthier Title is abolished or kept only as a rule of construction in most. The stem will say if either applies · Merger of a life estate with the next vested estate still generally operates when both come into one person's hands

The common-law Rule Against Perpetuities

No interest is good unless it must vest, if at all, within 21 years after a life in being at creation. Test it at creation, by what could happen.

1. Is the interest nonvested at creation and of a kind the rule reaches?
2. Find a validating life: someone alive at creation
3. Must the interest vest or fail within that life plus 21 years?
4. Test at creation: any possible chain of events that vests it later makes it void
5. Strike the void interest and read the rest of the conveyance as written

Exceptions: It reaches contingent remainders, executory interests, vested remainders subject to open, and options in gross; most courts also apply it to rights of first refusal · It does not reach reversions, possibilities of reverter, rights of entry, indefeasibly vested remainders, or a gift over from one charity to another · An option in a lease, exercisable during the lease term, is not subject to it · An administrative contingency ('to my issue living when my estate is distributed') is void under the classic common-law rule, because administration could run past the period. Some courts save it by reading in a reasonable time

Reforms: wait-and-see, USRAP and cy pres

Reforms look at what actually happens: USRAP saves an interest that vests or fails within 90 years, and a court may reform what still fails.

1. Read the stem: common-law rule unmodified, or a reform?
2. Common law: tested at creation; one possible bad chain voids the interest
3. Wait-and-see: measured by actual events during lives in being plus 21 years
4. USRAP: valid if certain to resolve within a life plus 21 years, or if it actually resolves within 90 years
5. Cy pres or reformation: a court rewrites a failing gift as near to the plan as possible

Exceptions: USRAP excludes certain interests, such as nondonative transfers and gifts from one charity to another · Several states have abolished the rule or lengthened the period for trusts: the stem will say

Traditional rule: Common law: valid only if certain at creation to vest or fail within a life in being plus 21 years.
Modern trend: Wait-and-see and USRAP: also valid if it actually vests or fails in time (USRAP: within 90 years).

Restraints on alienation

A total restraint on a fee simple is void; a reasonable partial restraint is valid; a restriction on use is not a restraint on sale at all.

1. Is it a limit on transfer, not on use?
2. Total restraint on a fee simple (disabling, forfeiture or promissory): void
3. Partial restraint: valid if reasonable in purpose and duration
4. Right of first refusal at the offered price within a reasonable time: valid

Exceptions: A restriction on use ('single-family residential only') is tested as a covenant or condition, not as a restraint on alienation · Traditional rule: forfeiture and promissory restraints on a life estate are generally upheld, and states differ · A clause requiring consent that may not be unreasonably withheld is a partial restraint

Alienability, descendibility and devisability of interests

Most present and future interests can be sold, inherited and left by will, but an interest that ends with its holder's death cannot pass.

1. Vested remainders and reversions may be sold, inherited and devised
2. Executory interests and contingent remainders are transferable in the modern view
3. A taker who is unborn or unascertained cannot convey until ascertained
4. An interest that depends on the holder surviving cannot be inherited or devised
5. A life estate measured by the holder's own life ends at death and passes to no one

Exceptions: A vested remainder in a named person passes to the holder's heirs or devisees even if the holder dies before the life tenant · Traditionally a right of entry could not be sold during life, but it could pass at death. Many states now allow transfer, by statute or case law: the stem will say

Conflicts of law: the law of the situs governs land

The law of the state where the land lies governs title. Another state's court cannot convey it by decree, but it can order a party to sign a deed.

1. The law of the state where the land lies governs title and the validity of conveyances
2. A court of another state cannot itself transfer title to the land
3. That court may order a party before it to sign a deed
4. The situs state need not give full faith and credit to a decree that purports to convey its land

Exceptions: The decree of the other state is enforceable against the party personally, by contempt, and a deed the party then signs is valid · Questions of contract, such as a contract to sell, may be governed by another state's law under choice-of-law rules, but title is governed by the situs

Joint tenancy and its four unities

A joint tenancy needs the four unities and clear joint-tenancy language; plain 'to A and B' is a tenancy in common.

1. Time: the interests vest at the same moment
2. Title: both take by the same instrument
3. Interest: equal shares of equal duration
4. Possession: each may possess the whole
5. Express joint-tenancy language in the grant ('as joint tenants' or 'with right of survivorship')

Exceptions: 'To A and B' with nothing more creates a tenancy in common · The survivor takes the whole by survivorship, and a joint tenant's will does not affect the joint interest · Losing a unity ends the joint tenancy as to the affected share · A few states by statute require express survivorship words, so the stem will say · If joint tenants die together and it is not shown that one outlived the other by 120 hours, half the property passes as if each survived (Uniform Simultaneous Death Act) · In the majority view a joint tenant who intentionally and feloniously kills the other cannot gain by survivorship and keeps only her own half

Tenancy in common and tenancy by the entirety

Tenancy in common is the default and has no survivorship; tenancy by the entirety is for spouses, and neither can sever or encumber it alone.

1. Tenancy in common: only possession is shared; shares may be unequal
2. Each tenant in common may sell, lease, devise or mortgage her own share
3. Tenancy by the entirety: spouses, with the four unities plus marriage
4. Neither spouse can sever or encumber it alone
5. A creditor of one spouse alone cannot reach it (a federal tax lien is the usual exception)
6. Divorce converts it to a tenancy in common (most states)

Exceptions: Many states do not recognize the tenancy by the entirety: the stem will say · Tenants in common have no survivorship: a deceased tenant's share passes by will or intestacy

What severs a joint tenancy

Conveying your share severs, even in secret; a will does not; a mortgage severs only in a title-theory state.

1. Conveyance of the interest, even secretly
2. Conveyance to a straw who conveys back to oneself
3. Foreclosure or execution sale before death
4. Partition
5. Mortgage, but only in a title-theory state

Exceptions: Severance leaves a tenancy in common as to the severed share; the other joint tenants stay joint among themselves · Courts split on whether a joint tenant's lease severs. Where it does not, the lease ends when the lessor dies: the stem will say · A judgment lien alone generally does not sever, though courts differ · Whether a contract to sell severs, by equitable conversion, differs among courts

Majority rule: Lien theory: a mortgage does not sever. If the mortgagor dies first, the survivor takes the whole free of the lien.
Minority rule: Title theory: a mortgage conveys title and severs, at least until the debt is paid.

Rights and duties among cotenants

Each cotenant may use the whole, so no rent without an ouster; taxes and necessary repairs are shared, improvements are not.

1. Each cotenant may possess the whole
2. No rent from a cotenant in possession unless there is an ouster
3. Rents from third parties are shared after expenses
4. Contribution for taxes, mortgage payments and necessary repairs
5. No contribution for improvements, only a credit on partition for the value added

Exceptions: A cotenant adversely possesses against the others only by ouster or clear notice of repudiation · Partition: any cotenant may compel it; in kind is preferred, by sale if in kind is impracticable or would cause great prejudice · Many states give non-requesting heirs a buyout right under the Uniform Partition of Heirs Property Act

Tenancies, holdovers and delivery of possession

Know the four tenancies; a holdover lets the landlord choose between eviction and a periodic tenancy; the landlord must deliver actual possession.

1. Term of years: ends automatically, and a lease over one year needs a writing
2. Periodic: renews until a full period's notice, ending at the end of a period
3. At will: no fixed term, and either side may end it
4. Holdover: the landlord elects to evict or to bind the tenant to a periodic tenancy; accepting rent is the election
5. The landlord must deliver actual possession on the day the term begins (English rule, the majority in the US)

Exceptions: An oral lease that the statute of frauds makes unenforceable as a term usually creates a periodic tenancy measured by the rent period · Notice must be at least one full period and must end the tenancy at the end of a period. At common law, year-to-year tenancies need six months' notice, and statutes often shorten the notice further · A tenancy at will ends on either party's death or on an attempted transfer · A landlord who evicts a holdover as a trespasser may recover the fair rental value for the holdover period, or double rent where a statute provides

Majority rule: English rule (the majority of US jurisdictions): the landlord must deliver actual possession when the term begins.
Minority rule: American rule: the landlord need only deliver the legal right to possession; the new tenant must evict a holdover.

Quiet enjoyment and constructive eviction

Constructive eviction needs a substantial interference the landlord caused or failed to cure, notice, and moving out within a reasonable time.

1. Substantial interference with the tenant's use and enjoyment
2. Caused by the landlord, or by the landlord's failure to cure a condition within its duty
3. The tenant gives notice and a reasonable time to cure
4. The tenant vacates within a reasonable time
5. Rent stops and the tenant may sue for damages

Exceptions: A tenant who stays cannot claim constructive eviction · The covenant of quiet enjoyment is implied in every lease; actual eviction from the whole premises ends the rent

Habitability, repair and retaliation

A residential landlord impliedly warrants habitability: the tenant may stay and withhold, repair and deduct, or terminate, and retaliation is barred.

1. Residential lease: the landlord warrants the dwelling fit for habitation for the whole term
2. A condition violates the housing code or basic health and safety
3. The landlord has notice and a reasonable time to repair
4. The tenant may stay and withhold or abate rent, repair and deduct, terminate, or sue for damages

Exceptions: Most states do not allow the warranty to be waived by a lease clause · Defects the tenant caused do not breach it, and ordinary wear and tear is not the tenant's burden · Retaliatory eviction: a landlord may not evict, raise rent or cut services because the tenant complained to authorities or used legal rights · In a commercial lease the traditional rule is 'as is', but a growing minority implies a warranty of suitability for the intended use (the stem will say)

A landlord's tort liability

A landlord is generally not liable for the leased premises, except common areas, latent defects, negligent repairs, public use and some furnished lets.

1. Common areas: reasonable care
2. A latent defect the landlord knew of and the tenant could not find: duty to disclose
3. Repairs the landlord undertakes: reasonable care
4. Premises leased for public admission: duty to inspect and repair
5. Short-term furnished dwelling: duty of reasonable safety in many courts

Exceptions: Apart from these exceptions, the tenant in possession bears the risk of conditions on the leased premises

Ending the lease: self-help, abandonment and surrender

The landlord must use court process, not self-help; after abandonment the modern majority requires reasonable efforts to re-let; surrender ends the rent.

1. No self-help eviction: the landlord must use judicial process (majority)
2. The tenant abandons: the landlord may re-let
3. Modern majority: the landlord must make reasonable efforts to re-let and credit the proceeds
4. Surrender: the landlord accepts, expressly or by acts inconsistent with the tenancy
5. A surrender ends the tenant's liability for future rent

Exceptions: Re-letting expressly for the tenant's account is not a surrender · Security deposits are governed by statute: the stem states the rule

Majority rule: Modern majority: after abandonment the landlord must make reasonable efforts to re-let and credit what it recovers.
Minority rule: Traditional: no duty to mitigate; the landlord may leave the premises vacant and sue for rent as it falls due.

Assignment, sublease and the privity map

Assign the whole term and you stay on the hook; sublease and the subtenant answers only to you, never to the landlord.

1. Assignment: the tenant transfers the entire remaining term
2. Sublease: the tenant keeps part of the term, even a day
3. Assignee: in privity of estate with the landlord, so liable on covenants that run
4. Original tenant: stays liable in contract unless released
5. Sublessee: no privity with the landlord; owes the sublessor

Exceptions: Consent clauses are strictly construed against the landlord: a ban on assignment does not bar a sublease · Accepting rent from an assignee with knowledge of the breach waives the right to terminate for it · Rule in Dumpor's Case (traditional): consent to one assignment waives the clause for later transfers unless the landlord expressly reserves the right. Many modern courts and the Restatement (Second) of Property reject it, so the stem will say

Traditional rule: The landlord may refuse consent for any reason unless the lease limits that right.
Modern trend: A growing minority implies a duty not to refuse consent unreasonably, most clearly in commercial leases (Kendall v. Ernest Pestana, Inc.).

Casualty, condemnation, waste and the sale of the reversion

Absent statute or lease clause, rent continues after casualty; a total taking ends the lease; and a landlord's buyer takes the rent and the running covenants.

1. Casualty without the tenant's fault: at common law the lease continues and rent is still owed
2. Many statutes let a residential tenant end the lease or abate rent after serious damage
3. A total condemnation ends the lease and the duty to pay rent
4. A tenant may not commit waste, though ordinary wear and tear is not waste
5. The landlord's buyer takes the rent and may enforce the tenant's covenants that touch and concern the land
6. The buyer is bound by the landlord's covenants that touch and concern the land (Spencer's Case)

Exceptions: Security deposits are governed by statute: the stem states the deadlines and penalties · The lease may allocate the risk of casualty: a clause that expressly covers damage controls

Traditional rule: Casualty without the tenant's fault: the lease and the rent continue.
Modern trend: Many states, by statute or case law, let the tenant terminate or abate rent when the premises are destroyed.

Fair housing: the FHA and 42 U.S.C. §1982

FHA exemptions never excuse a discriminatory ad, and §1982 bars race discrimination in property transactions with no exemptions at all.

1. Protected classes: race, color, religion, sex, national origin, familial status, disability
2. §3603(b) exempts an owner of no more than three single-family houses, with no broker and no discriminatory ad
3. §3603(b) exempts an owner-occupied building of no more than four units
4. No exemption excuses a discriminatory notice or ad under §3604(c)
5. 42 U.S.C. §1982 bars race discrimination in property transactions, with no exemptions
6. Disability: reasonable accommodations in rules, and reasonable modifications at the tenant's expense

Exceptions: An owner who uses a broker or agent loses the single-family exemption · Refusing to waive a no-pets rule for a trained assistance animal can violate the duty to make reasonable accommodations

Fair housing: more claims and exemptions

Blockbusting, interference and retaliation are unlawful; reasonable occupancy limits, housing for older persons and religious preferences are exempt.

1. Blockbusting: inducing owners to sell by warning that a protected class is moving in (§3604(e))
2. Coercion, intimidation, interference or retaliation over fair-housing rights is unlawful (§3617)
3. Reasonable local or state limits on the number of occupants are allowed (§3607(b)(1))
4. Housing for older persons may exclude children if it meets the statutory test (§3607(b)(2))
5. A religious organization may prefer its own members in nonprofit housing (§3607(a))
6. A practice with an unjustified discriminatory effect can violate the Act even without intent

Exceptions: Housing for older persons includes housing for persons 62 or older, and housing for persons 55 or older where at least 80 percent of the occupied units have at least one occupant 55 or older and the community follows policies showing that intent · A disparate-impact claim needs a robust causal link between the policy and the disparity

Easements, profits and licenses: the vocabulary

An easement is a right to use another's land: appurtenant passes with the parcel, in gross belongs to a person; a license is revocable permission.

1. Easement: a nonpossessory right to use another's land
2. Appurtenant: benefits a parcel and passes with it, even if the deed is silent
3. In gross: benefits a person or business, not a parcel
4. Negative easements: only light, air, support and artificial-stream flow, by express grant
5. Profit: a right to enter and take something from the land
6. License: permission, revocable at will, not an interest in land

Exceptions: A license becomes irrevocable when the licensee relies by spending substantially (estoppel) or when it is coupled with an interest · A license ends at the licensor's death or on a conveyance of the land · An ambiguous easement is presumed appurtenant · Burden side: a buyer of the servient land with notice of the easement takes subject to it

Traditional rule: A commercial easement in gross, such as a pipeline, may be assigned; a personal easement in gross may not.
Restatement (Third): Restatement (Third): an easement in gross may be transferred unless the grant limits it.

Five ways to create an easement (PENIE)

PENIE: prescription, express grant, necessity, implication from prior use, estoppel.

1. Prescription: open, notorious, continuous and hostile use for the statutory period
2. Express: a writing that satisfies the statute of frauds
3. Necessity: common owner, then severance leaves a parcel landlocked
4. Implication from prior use: apparent, continuous and reasonably necessary
5. Estoppel: oral permission plus the user's reasonable reliance

Exceptions: An easement may also be implied in favor of lot buyers from a recorded plat or map showing streets or parks · At common law a reservation in favor of a stranger to the deed was ineffective. Some modern courts and Restatement (Third) of Property (Servitudes) §2.6 allow it, but many states keep the traditional rule: the stem will say

Prescriptive easements: adverse possession's cousin

Prescription needs open, continuous, hostile use for the statutory period; unlike adverse possession it needs no exclusivity, and permission defeats it.

1. Open and notorious use
2. Continuous use for the full statutory period
3. Adverse: without the owner's permission

Exceptions: Tacking is allowed between users in privity · Use that began with permission is not adverse unless the user clearly repudiates the permission to the owner · No prescriptive easement runs against government land

Implied easements: prior use and necessity

Both arise when commonly owned land is split: prior use needs an apparent, continuous, reasonably necessary use; necessity needs a landlocked parcel.

1. Common ownership of the whole, then severance into two parcels
2. Prior use: before severance, one part served the other, apparently and continuously
3. Prior use: the use is reasonably necessary to enjoy the benefited part
4. Necessity: after severance, one parcel is landlocked
5. Necessity ends when the necessity ends

Exceptions: Prior use does not need a landlocked parcel: reasonable necessity is enough · The servient owner may choose a reasonable route for an easement by necessity

Traditional rule: An implied reservation (the seller keeps a use over the land sold) needs strict necessity; an implied grant needs only reasonable necessity.
Modern trend: Some courts, following the Restatement (Third), judge implied grants and reservations by the same test.

Scope and repair of an easement

An easement's use must fit the grant and the normal development of the benefited land; misuse is enjoined, not terminated.

1. Express easement: scope follows the grant's words and the parties' intent
2. If the grant is silent: reasonable use that fits the normal development of the dominant estate
3. An appurtenant easement may not be used to benefit other land
4. Misuse is enjoined; it does not terminate the easement
5. The holder must repair the way; the servient owner has no duty to maintain

Exceptions: On subdivision of the dominant estate, each new lot may use an appurtenant easement unless the added use unreasonably increases the burden on the servient land

Majority rule: A servient owner may not relocate a fixed easement without the holder's consent.
Restatement (Third): Restatement (Third): the servient owner may make reasonable changes at its own expense if the easement's utility and purpose are not harmed.

How easements end

Release, merger, abandonment (nonuse plus intent), estoppel and prescription end easements; nonuse alone never does.

1. Release in a signed writing
2. Merger: one owner holds both estates in fee simple
3. Abandonment: nonuse plus intent shown by acts
4. Estoppel: the servient owner relies on the holder's conduct
5. Prescription: the servient owner adversely obstructs for the statutory period

Exceptions: An easement by necessity ends when the necessity ends · Condemnation of the servient land, expiry of a stated term, or destruction of the servient land (not by its owner) also end it · A buyer without notice of an unrecorded easement takes free of it under the recording act

Real covenants: damages need privity

A real covenant's burden runs to a successor for damages only with a writing, intent, touch and concern, both privities and notice.

1. A writing that satisfies the statute of frauds
2. Intent that the burden run to successors
3. The promise touches and concerns the land
4. Horizontal privity between the original parties
5. Vertical privity: the successor takes the promisor's entire estate
6. Notice to the successor (actual, record or inquiry)

Exceptions: To enforce the benefit, a successor needs a relaxed vertical privity (some interest in the benefited land) and no horizontal privity · Affirmative covenants, such as to pay money or to maintain, may run if they meet the same tests

Traditional rule: The burden runs at law only with horizontal and vertical privity, and the remedy is damages.
Restatement (Third): Restatement (Third) of Property (Servitudes) drops horizontal privity and replaces touch and concern with a validity test.

Equitable servitudes: injunction needs notice

An equitable servitude binds a successor with notice, with no privity required, and is enforced by injunction (Tulk v. Moxhay).

1. A writing, or a common scheme that implies the restriction
2. Intent that the restriction bind successors
3. The promise touches and concerns the land
4. Notice to the successor (actual, record or inquiry)

Exceptions: Implied reciprocal servitude: in a subdivision built under a general plan, restrictions on most lots may be implied on a lot whose deed omits them, if its buyer had notice · Courts read a restriction strictly in favor of free use of the land, so an ambiguous term is not extended

Ending a covenant or servitude

Changed conditions defeat a restriction only if the whole restricted area has changed so that its purpose can no longer be achieved.

1. Changed conditions throughout the whole restricted area, not just at its edge
2. Abandonment or acquiescence in widespread violations
3. Estoppel, laches or unclean hands
4. Merger of the benefited and burdened estates
5. Release by the benefited owners

Exceptions: A buyer without notice of an unrecorded restriction takes free of it under the recording act · Condemnation of the burdened land ends the restriction, and a stated term expires on its own

Owners' associations and common interest communities

Recorded assessment covenants run with the land, the association enforces them, and recorded restrictions are presumed valid.

1. A recorded declaration creates covenants and servitudes for the community
2. Assessments for common areas run with the land and may become a lien
3. The association may enforce without owning benefited land
4. Recorded restrictions are presumed valid; board rules must be reasonable and are reviewed deferentially
5. A recorded restriction fails only if arbitrary, a burden outweighing the benefit, or contrary to public policy

Exceptions: Condominium: fee title to a unit plus a share of the common elements; cooperative: shares plus a proprietary lease; planned community: a lot plus an association-owned common area · Federal limits apply: the Fair Housing Act's reasonable accommodation duty, and racially restrictive covenants are unenforceable

Fixtures

Annexation, adaptation, intent and the parties' relationship decide what is a fixture; fixtures pass with the land; tenants may remove trade fixtures.

1. Annexation: how firmly attached, and the harm from removal
2. Adaptation: customized to the use of the land
3. Intent of the annexor, judged objectively (the most important factor)
4. Relationship: doubts favor tenant over landlord, buyer over seller, mortgagee over mortgagor
5. A fixture passes with a sale of the land, unless excluded
6. A tenant's trade fixtures may be removed before the term ends, with the damage repaired

Exceptions: A tenant who leaves without removing trade fixtures within the term, or a reasonable time after, forfeits them · A mortgage covers fixtures at execution and those added later · UCC Article 9: a purchase-money security interest perfected by a fixture filing before the goods become fixtures, or within 20 days after, beats an earlier recorded mortgage (UCC 9-334(d)); a construction mortgage is an exception

Zoning: nonconforming uses

A lawful use that predates a zoning change may continue but may not expand, and is lost by abandonment or substantial destruction.

1. The use was lawful when the zoning changed
2. It may continue (grandfathered)
3. It may not be expanded or changed to another nonconforming use
4. It is lost by abandonment (nonuse plus intent) or by substantial destruction

Traditional rule: A lawful nonconforming use continues until it is abandoned or destroyed.
Modern trend: Many jurisdictions also allow amortization: the use must end after a reasonable phase-out period.

Zoning: variances, special exceptions and rezoning

A use variance needs real hardship, an area variance only practical difficulty; spot zoning is invalid; a permit plus reliance can vest rights.

1. Zoning is legislative and presumed valid under the police power
2. Use variance: the land cannot earn a reasonable return in a permitted use, because of unique conditions
3. Area variance: practical difficulties, a lower bar than for a use variance
4. Special exception: allowed if the listed conditions are met
5. Spot zoning: arbitrary rezoning of a small parcel for one owner is invalid
6. Vested rights: a valid permit plus substantial good-faith reliance

Exceptions: More profit from a different use is not hardship · Regulatory takings are not part of this outline: see the takings lesson in Constitutional Law II · Exclusionary zoning, such as a ban on all apartments or very large minimum lots, is attacked as failing to serve the general welfare; the stem names the rule

Real estate brokerage

A broker earns the commission by producing a ready, willing and able buyer; the type of listing decides whether the owner's own sale pays.

1. The broker is the seller's agent and fiduciary
2. Open listing: commission only if this broker produces the buyer
3. Exclusive agency: commission if any broker sells; the owner may sell alone
4. Exclusive right to sell: commission whoever sells, including the owner
5. Earned when the broker produces a ready, willing and able buyer on the seller's terms

Exceptions: An unlicensed broker generally cannot recover a commission · Dual agency needs the informed consent of both principals; a conflicted broker may forfeit the commission · Many states require the listing to be in a signed writing (state-specific)

Traditional rule: The commission is earned when the broker produces a ready, willing and able buyer whom the seller accepts, even if the buyer later defaults and the sale never closes.
Modern trend: The commission is earned only if the sale closes, unless the seller's own wrongful act prevents closing; a buyer's default without the seller's fault defeats it.

Statute of frauds for land, part performance and estoppel

A land contract needs a writing signed by the defendant; possession plus payment or improvements can substitute, payment alone cannot.

1. A writing that identifies the parties
2. Describes the land so that it can be identified
3. States the price and the other essential terms
4. Signed by the party to be charged (the defendant)

Exceptions: Part performance: the buyer takes possession and also pays or makes substantial improvements (some states accept any two of possession, payment and improvements) · Payment alone is not part performance: the buyer gets the money back (restitution), not the land · Estoppel: reasonable, detrimental reliance when refusing enforcement would be unconscionable · The memorandum may be several papers and may be informal; it need not be recorded

Time, deposits and remedies in a land contract

Time is not of the essence unless the contract says so; either side may get specific performance, and a reasonable deposit can be kept.

1. Time is not of the essence unless the contract or later notice says so
2. A late party who is ready to close may still get specific performance, but pays for the delay
3. Seller's breach: specific performance, damages, or rescission with a refund
4. Buyer's breach: damages, specific performance, or the reasonable deposit as liquidated damages
5. Specific performance may be granted with abatement of the price for a shortfall

Exceptions: Time becomes of the essence by an express clause, by the circumstances, or by reasonable notice after a delay · Land is unique, so specific performance is available to the buyer and to the seller · A deposit is enforced as liquidated damages if it was a reasonable forecast of loss when the contract was made; about 10 percent is common, but reasonableness, not a fixed percentage, is the test · With no valid liquidated damages clause, some courts let a defaulting buyer recover the deposit less the seller's actual damages (Rest. (2d) Contracts §374(1); Rest. (3d) Restitution and Unjust Enrichment §36) and others let the seller keep it; the stem says · Deed and price are exchanged at closing as concurrent conditions: each side must tender

Modern trend: American rule: when the seller breaches, the buyer recovers the benefit of the bargain (market value minus contract price).
Traditional rule: English rule (Flureau v. Thornhill): a seller who cannot convey good title and is not in bad faith owes only the deposit and title expenses.

Marketable title

Every land contract promises marketable title at closing, not at signing; a zoning violation breaks it, the zoning ordinance itself does not.

1. Implied in every land contract unless the contract says otherwise
2. Tested at closing, not at signing
3. Marketable means free from reasonable doubt in law and in fact
4. The buyer gives notice of the defect and time to cure
5. If the seller cannot cure, the buyer may rescind, sue, or take the title with an abatement

Exceptions: Unmarketable: a defect in the chain of title, an encumbrance the contract does not except, a zoning violation, title resting on adverse possession that no court has confirmed · Not unmarketable: a zoning ordinance itself, an easement the contract excepts, a mortgage the seller pays off at closing · The contract can change the standard ('insurable title', 'subject to easements of record') · A buyer who accepts the deed loses the contract objection to title: the title promise merges into the deed (the remedy lies in the deed's covenants), absent fraud or mistake

Fitness, disclosure and 'as is'

Builders of new homes impliedly warrant quality; sellers of used homes must not lie or conceal, and 'as is' never covers that.

1. A builder-vendor of a new home impliedly warrants workmanlike construction and habitability
2. A seller of a used home gives no implied warranty of quality (caveat emptor)
3. Most jurisdictions require disclosure of known latent material defects the buyer cannot reasonably discover
4. No seller may commit fraud or actively conceal a defect
5. 'As is' bars warranty claims but never fraud or concealment

Exceptions: A builder's disclaimer works only if it is conspicuous and clear, and in many states only if specifically bargained for · Many states extend the new-home warranty to later purchasers · A statute may add a seller disclosure form on top of the common law · The warranty concerns the quality of the building, so it is collateral to the conveyance of title and survives merger · The builder's warranty covers latent defects, not those a reasonable pre-purchase inspection would reveal

Options and rights of first refusal

An option must be exercised strictly on time and without qualification; a right of first refusal binds a buyer who takes with notice.

1. An option is an irrevocable offer, supported by consideration
2. Exercise must be timely, unqualified and in the manner stated
3. A late exercise is ineffective: time is strictly of the essence
4. Timely exercise makes a binding contract and equitable conversion begins
5. A right of first refusal lets its holder match a bona fide offer the owner accepts
6. A buyer with notice of the right takes subject to it

Exceptions: A counteroffer or conditional acceptance is not an exercise · Courts relieve a late exercise only in narrow cases, such as mistake combined with a severe forfeiture · A right of first refusal can also be struck down under the common-law Rule Against Perpetuities in some courts; the stem says whether the Rule applies · Under the common-law Rule Against Perpetuities, an option in gross can be void; an option in a lease, exercisable only during the lease, is generally exempt

Equitable conversion

Once a land contract is specifically enforceable, the buyer holds equitable title and the seller holds legal title as security for the price.

1. A valid, specifically enforceable contract of sale exists
2. Buyer holds equitable title and is treated as the owner of the land
3. Seller holds legal title as security; the seller's interest is the right to the price (personal property)
4. Consequences: risk of loss, who takes at death, and severance of a joint tenancy

Exceptions: No conversion if the contract is unenforceable, for example because the statute of frauds is not met · An unsatisfied condition (such as a financing contingency) may delay or prevent conversion; courts differ · If the seller dies, the price passes to the seller's personal-property takers (the residuary under the traditional doctrine); a statute may give a specific devisee of the land the unpaid balance · If the buyer dies, the land passes to the buyer's devisee of real property · Courts divide on whether a contract by one joint tenant to sell her interest severs the joint tenancy; the stem says which rule applies

Risk of loss between contract and closing

Majority: the buyer bears a casualty loss once the contract binds. Under the Uniform Act the seller bears it until title or possession passes.

1. A valid, enforceable contract exists
2. A casualty occurs before closing, without the buyer's fault
3. Majority: the buyer bears the loss and must close at the full price
4. Unless the contract shifts it, the seller caused it, or a statute applies
5. Uniform Vendor and Purchaser Risk Act: the seller bears the loss until legal title or possession passes

Exceptions: The seller bears the loss if the contract says so or if the seller's own fault caused it · A buyer who has taken possession bears the risk, under the statute as well as the majority rule · Courts differ on who keeps a seller's insurance proceeds; many credit them to the buyer

Majority rule: The buyer bears the risk of loss from the moment the contract becomes enforceable and must pay the full price.
Minority rule: The seller bears the risk of loss until legal title or possession passes to the buyer (the Uniform Vendor and Purchaser Risk Act and some case law).

Merger of the contract into the deed

Promises about the title and the land itself merge into the deed; separate promises to act after closing survive.

1. Seller delivers and buyer accepts the deed
2. The contract merges into the deed
3. Promises about the title, the kind of estate conveyed, possession at closing and the quantity of land merge
4. Collateral promises to be performed after closing survive
5. Fraud and mistake survive

Exceptions: An express clause that a promise survives closing is honored · After merger the buyer's remedy for title defects lies in the deed's covenants of title (lesson 6) · A builder-vendor's implied warranty of habitability survives as collateral to the conveyance · Promises about the physical condition of the building are usually collateral and survive

Mortgage devices and the three theories

A mortgage is a lien that secures a debt. Assume lien theory: the lender holds a lien and the borrower keeps title, possession and rents.

1. The note is the debt; the mortgage is the lien that secures it
2. Lien theory (assume it): the lender holds a lien; the borrower holds title and possession
3. Title theory: the lender holds title until the debt is paid
4. Intermediate theory: the borrower keeps title until default, then the lender may take possession
5. Deed of trust: the borrower conveys to a trustee who holds a power of sale

Exceptions: In a lien-theory state the lender may obtain a receiver or an injunction if the borrower's waste impairs the security · An assignment-of-rents clause lets the lender collect rents after default · A deed of trust is treated like a mortgage; foreclosure is usually by power of sale · A lease made after the mortgage can be cut off by foreclosure; a lease made before it survives

Majority rule: Lien theory: the borrower holds title and the right to possession and rents until foreclosure.
Minority rule: Title or intermediate theory: the lender may take possession (before default under title theory, after default under the intermediate theory).

Before foreclosure: the debt, waste and the lender's rights

A mortgage needs a debt to secure; until foreclosure the owner keeps possession, and the lender may stop waste that impairs its security.

1. A mortgage secures an obligation, usually a note; without a debt nothing is secured
2. Lien theory: the owner keeps title, possession and rents before foreclosure
3. Waste that impairs the security: the lender may seek an injunction, a receiver or damages
4. A mortgagee in possession (after default, where allowed) must account for rents and profits
5. An assignment-of-rents clause lets the lender collect rents after default, usually through a receiver

Exceptions: Payment of the debt ends the lien: a mortgage cannot outlive its obligation · Ordinary wear is not waste; the test is harm to the lender's security · Prepayment: absent a term in the loan or a statute, the borrower has no right to prepay a fixed-term loan, and a prepayment charge written into the loan is generally enforced (general)

Installment land contracts (contracts for deed)

The seller keeps title until the last payment; the traditional rule allows forfeiture, but many courts now protect the buyer's accrued equity.

1. Buyer takes possession and pays in installments
2. Seller keeps legal title until the last payment
3. Traditional rule: on default the seller may declare a forfeiture and keep the payments
4. Many courts now treat the buyer's equity like a mortgagor's
5. Buyer is the equitable owner and (majority) bears the risk of loss

Exceptions: The statute of frauds applies to the contract · Many states restrict forfeiture by statute, with grace periods or notice requirements · Courts look through the label: an installment contract used as security is a disguised mortgage

Traditional rule: Forfeiture is enforced as written: time is of the essence, and the seller keeps the land and the payments.
Modern trend: Forfeiture is not enforced against a buyer with substantial equity: the seller must foreclose, give a grace period, or return the excess over damages.

Disguised mortgages: the absolute deed and the equitable mortgage

A deed that looks absolute but secures a debt is a mortgage; parol evidence proves the purpose and the borrower may redeem.

1. A deed absolute in form is given to secure a debt
2. Parol evidence is admissible to show the security purpose
3. Signs: a debt exists, the grantor stays in possession, the price is far below value
4. The grantor keeps the equity of redemption; the grantee must foreclose
5. A bona fide purchaser from the grantee without notice takes free

Exceptions: An installment land contract used as security may be treated as a mortgage (above) · Equitable mortgage: a court treats an informal instrument as a mortgage when it was intended as security

Redemption and clogging the equity of redemption

A borrower may redeem by paying the debt until the sale; a term agreed at the loan that blocks redemption is void as a clog.

1. Equity of redemption: the borrower may redeem by paying the whole debt before the foreclosure sale
2. It cannot be waived or cut off in the original loan documents
3. Clogging: an option for the lender to buy, or automatic title on default, agreed at the loan, is void
4. After default, a voluntary, fairly priced deed in lieu is allowed
5. After the sale, redemption exists only if a statute gives it

Exceptions: Some states give statutory redemption after the sale; the question gives the period and the price · An agreement made after default, for new consideration and without overreaching, is not a clog

Transfers by the mortgagor: assumes or subject to?

'Assumes': the grantee is primarily liable and the mortgagor a surety. 'Subject to': the grantee owes nothing personally; the land answers.

1. The mortgage stays on the land after any transfer
2. The original mortgagor stays liable on the note unless the lender releases her
3. Assumption: the grantee is personally and primarily liable; the mortgagor becomes a surety
4. Subject to: the grantee has no personal liability; the land answers for the debt
5. The lender may sue either obligor on an assumption; a release of the mortgagor needs the lender's consent

Exceptions: Releasing the original mortgagor does not release the assuming grantee, who is the principal obligor · A modification between the lender and the assuming grantee, without the mortgagor's consent, discharges the mortgagor to the extent it prejudices her (general suretyship rule, Rest. (3d) Suretyship and Guaranty §41) · A deed that is silent passes the land subject to the mortgage; there is no assumption without the grantee's promise · A surety who pays is subrogated to the lender's rights against the grantee

Due-on-sale clauses and the Garn-St Germain exceptions

A due-on-sale clause is enforceable by federal law, except against listed transfers of homes with fewer than five dwelling units.

1. A due-on-sale clause lets the lender accelerate on an unapproved transfer
2. Federal law makes the clause enforceable
3. The exceptions protect loans on homes with fewer than five dwelling units
4. Protected: junior lien, joint tenant's death, lease of three years or less
5. Protected: relative on the borrower's death, spouse or children
6. Protected: divorce decree, trust with the borrower as beneficiary

Exceptions: Also protected: a purchase-money security interest for household appliances · The regulations apply the exceptions to a home occupied or to be occupied by the borrower

Transfers by the mortgagee: the mortgage follows the note

Transfer the note and the mortgage goes with it; the mortgage alone passes nothing. Paying the old lender without notice discharges a non-negotiable note.

1. The note is the debt and the mortgage secures it
2. The mortgage follows the note: transferring the note transfers the mortgage
3. Transferring the mortgage without the note passes nothing
4. The assignee takes subject to the mortgagor's defenses unless a holder in due course of a negotiable note
5. Non-negotiable note: payment to the original lender without notice of the assignment discharges to that extent
6. Recording the assignment protects the assignee against a later assignee

Exceptions: A partial assignment shares priority pro rata unless the parties agree otherwise · For a negotiable note the rule differs: UCC §3-602 discharges the maker only by payment to a person entitled to enforce the note, so paying a transferor who no longer holds it generally does not discharge

Discharge of a mortgage

Payment discharges the lien; redemption ends at the sale unless a statute extends it; a deed in lieu does not cut off junior liens.

1. Payment in full discharges the debt, and the lender must give a recorded satisfaction
2. Before the sale the borrower may redeem by paying the whole debt
3. After the sale, redemption exists only where a statute gives it
4. A deed in lieu of foreclosure is a voluntary conveyance to the lender after default
5. A deed in lieu does not cut off junior liens

Exceptions: Prepayment: at common law the borrower has no right to prepay a fixed-term loan unless the loan or a statute allows it · A release or a novation by the lender also discharges the mortgagor · A mortgage merges into the fee when the lender takes title, unless the parties intend otherwise or a junior lien intervenes (general)

Foreclosure: types, parties and what survives

Join every interest the sale is meant to cut off. A junior left out keeps its lien, and a senior always survives a junior's foreclosure.

1. Judicial foreclosure: a court orders a public sale
2. Power of sale: a nonjudicial sale under the mortgage or deed of trust and a statute
3. Join every interest the sale is meant to cut off
4. An omitted junior keeps its lien: the buyer takes subject to it
5. A senior interest survives a junior's foreclosure
6. The sale ends the owner's equity of redemption

Exceptions: The omitted junior may redeem by paying the senior debt, or may foreclose its own lien · Acceleration: on default, if the loan so provides, the whole debt is due (often with a right to reinstate before the sale) · A low price alone does not set a sale aside; it must shock the conscience, usually with a defect in procedure

The foreclosure proceeds, in order

Costs first, then the foreclosing lender, then the juniors in order of priority; any leftover belongs to the owner.

1. Costs of the sale and the foreclosure
2. The foreclosing mortgage: principal, interest and fees
3. Junior liens, in order of priority
4. Any surplus to the mortgagor, the owner of the equity

Exceptions: Seniors are not paid from a junior's foreclosure: their liens continue on the land · A junior paid less than it is owed may sue the debtor on its note for the rest · An omitted junior is not paid from the sale: its lien survives

Deficiency, surplus and acceleration

If the sale falls short the lender may sue the personal obligor for the deficiency, unless the loan is nonrecourse or a statute bars it.

1. Acceleration: on default the whole debt is due if the loan so provides
2. The sale proceeds pay costs, then the debt; any shortfall is a deficiency
3. The lender may recover a deficiency judgment against the personal obligor
4. Not against a nonrecourse borrower or a grantee who took subject to the mortgage
5. An anti-deficiency statute may bar or limit the claim; the stem says

Exceptions: A junior lienholder paid less than it is owed may sue the debtor on its note for the rest as an unsecured creditor · Some states require a fair-value credit if the sale price is grossly inadequate · Anti-deficiency statutes differ: many protect purchase-money loans on homes or loans foreclosed by power of sale

Purchase-money mortgages and priority

A purchase-money mortgage beats earlier judgment liens and after-acquired-property clauses against the buyer, because the buyer never held the land free of it.

1. A purchase-money mortgage secures money lent to buy the land
2. It has priority over other claims arising through the buyer
3. That includes earlier judgment liens against the buyer
4. It also includes an earlier after-acquired-property clause
5. Ordinary priority and recording rules govern claims that do not arise through the buyer

Exceptions: The lender can be the seller or a third party; the loan must finance the purchase in fact · Restatement (Third) Mortgages §7.2(c) gives the seller's purchase-money mortgage priority over a lender's purchase-money mortgage from the same transaction; some courts decline to follow it and rank them by recording order (general)

Future advance mortgages

Obligatory advances keep the mortgage's priority; an optional advance made after notice of a junior lien loses to it, unless an open-end statute says otherwise.

1. A mortgage may secure advances to be made later
2. Obligatory advance: the lender must make it; priority dates from recording
3. Optional advance: the lender may refuse it; notice of intervening liens matters
4. Traditional rule: an optional advance made after notice of an intervening lien ranks behind it
5. Open-end statutes: priority up to a stated maximum from recording, whatever the notice

Exceptions: A lender that made an optional advance before it had notice of the intervening lien keeps priority for that advance · Obligatory advances keep priority even after notice of a junior lien · Courts divide on whether the junior's recording alone is notice to the senior lender or actual notice is needed; the stem says what the lender knew

Traditional rule: An optional advance made with notice of an intervening lien ranks behind that lien.
Modern trend: Under open-end mortgage statutes, advances up to the stated maximum keep the mortgage's recording priority, whatever notice the lender has.

Subordination, modification and subrogation

A lender may agree to rank behind another; a prejudicial modification loses priority; a refinancing lender may step into the old lender's rank.

1. Subordination: a lender may agree to rank behind another interest, and the agreement controls
2. A senior loan modified to the prejudice of a junior loses priority to the extent of the prejudice
3. Equitable subrogation: a refinancer that expected first priority takes the paid-off senior's rank, up to what it paid
4. A surety who pays the debt is subrogated to the lender's rights

Exceptions: Equitable subrogation is the majority approach; the stem says whether the jurisdiction applies it · Traditional approach: actual knowledge of the intervening lien bars subrogation. Rest. (3d) Mortgages §7.6 and a growing number of courts reject that bar and deny subrogation only if the junior is materially prejudiced or the refinancer meant to rank behind it. The stem says which approach applies

Judgment, tax and mechanic's liens

Judgment liens rank by docketing, subject to purchase-money mortgages and the recording act; real property tax liens outrank earlier private liens by statute.

1. Judgment lien: attaches to the debtor's land in the county where the judgment is docketed
2. It often reaches land the debtor acquires later, subject to purchase-money mortgages
3. It ranks by time of docketing, subject to the recording act
4. Real property tax lien: superpriority over earlier private liens, including recorded mortgages
5. Federal tax lien: not valid against purchasers or lienors until notice is filed

Exceptions: A buyer for value who took the deed before the docketing takes free of the judgment lien · Mechanic's liens: in many states they relate back to the start of the work (state-specific)

Adverse possession: the elements

Actual, open, exclusive, hostile and continuous possession for the full statutory period; permission kills it, and the stem gives the period.

1. Actual entry onto and use of the land
2. Open and notorious possession
3. Exclusive possession
4. Hostile: without the owner's permission
5. Continuous for the full statutory period

Exceptions: Continuous means the use an average owner of that kind of land would make: seasonal use can qualify · Abandonment by the possessor, or the owner's effective re-entry or suit, interrupts the period; it starts again from zero · Permission, a license or a lease defeats hostility; a tenant cannot possess adversely to the landlord during the lease · The period is state-specific, so the stem gives it; most states do not require payment of taxes or good faith

Majority rule: Objective test: hostility means possession inconsistent with the owner's rights; the possessor's state of mind, including a mistake about the boundary, is irrelevant.
Minority rule: A minority asks about state of mind: some require good faith, others require an intent to claim land that is not hers.

Color of title, tacking and boundaries

Color of title with possession of part gives the whole described tract; successive possessors add their time if they are in privity.

1. Color of title: a defective instrument that purports to convey the land
2. Possession of part under color of title is constructive possession of the whole described parcel
3. Only if no one else is in actual possession of the rest
4. Without a document (claim of right), the possessor holds only the land actually possessed
5. Tacking: successive possessors add their time if they are in privity
6. Privity: a deed, a will, descent or a voluntary transfer of possession

Exceptions: Two strangers who occupy in turn, with no transfer between them, cannot tack · Privity can exist even if the deed's description mistakenly omitted the land the possessor occupied · Some states shorten the period for possession under color of title

When the clock starts, stops and cannot run

A disability at accrual delays the clock; a future interest is not hurt until it becomes possessory; the government and cotenants are special.

1. A disability (such as minority) existing when the claim accrues delays the start of the period
2. A disability arising later does not stop the clock, and disabilities do not tack
3. Against a future interest that existed at entry, the clock starts only when it becomes possessory
4. Adverse possession against a life tenant bars only the life estate
5. No adverse possession against the government
6. A cotenant needs ouster or clear repudiation

Exceptions: The new title vests at the end of the period without a judgment, but a judgment is needed for marketable or insurable title · Agreed-boundary and acquiescence are separate doctrines that can fix a disputed boundary line · If the possession began against a fee owner who later created a life estate or other future interest, the period already running continues against all of them

What makes a valid deed

A deed needs a signed writing, a real grantee, words of present conveyance, a description and delivery; it needs no consideration and no recording.

1. A writing signed by the grantor
2. An identifiable grantee who exists
3. Words showing present intent to convey
4. A description that identifies the land
5. Delivery and acceptance

Exceptions: Consideration is not required: a deed of gift is valid · Recording is not required for validity; it protects against later purchasers · Acknowledgment is needed to record in most states, not to make the deed valid between the parties · A deed to a nonexistent grantee, or to one who died before delivery, is void

Delivery of a deed

Delivery means the grantor's present intent to pass title: a right to recall defeats it, an oral condition to the grantee is ignored, and escrow relates back.

1. The grantor intends the deed to take effect now as a present transfer of title
2. Handing over the paper is neither necessary nor sufficient
3. A right to recall the deed defeats delivery
4. An oral condition on a delivery to the grantee is ignored (majority)
5. Delivery to an escrow agent takes effect on the condition and relates back

Exceptions: Delivery is presumed when the grantee has the deed or the grantor recorded it; the presumption can be rebutted · A deed given to a third party to hold until the grantor's death, with no right of recall, is a valid present transfer of a future interest · Acceptance is presumed for a beneficial gift

Who may sign a deed: authority and capacity

An agent signs a deed only with authority, in writing where the equal dignities rule survives; a forger or an unauthorized signer passes nothing.

1. The grantor signs, or an agent with authority signs for her
2. Equal dignities rule, where it survives: authority to sign a deed must itself be in a signed writing
3. A corporation conveys through an officer that its board or governing documents authorize
4. A trustee or personal representative conveys only within the powers the instrument, a statute or the court gives
5. A signature without authority passes no title, and a forgery is void

Exceptions: Many states have abolished or narrowed the equal dignities rule, so the stem says whether it applies · Some states require a spouse to join in a deed of the homestead; the stem says

Describing the land: construction and reformation

A description must identify the land; monuments beat distances, and a deed that misstates the parties' agreement may be reformed for mistake.

1. A description is enough if the land can be identified from it
2. Specific calls beat general calls
3. Natural and artificial monuments beat courses, courses beat distances, and distances beat stated area
4. Extrinsic evidence may resolve a latent ambiguity
5. Reformation fixes a deed that misstates the agreement, for mutual mistake or one side's mistake plus the other's fraud
6. A bona fide purchaser from the grantee without notice takes free of reformation

Exceptions: Reformation needs clear and convincing evidence of the actual agreement · Mistake is an exception to merger, so reformation survives the delivery of the deed

Void and voidable deeds

A void deed passes no title, even to a good-faith buyer; a voidable deed passes title that a good-faith buyer takes free of rescission.

1. Void: forgery, no delivery, a nonexistent grantee, fraud in the factum
2. A void deed passes no title, even to a bona fide purchaser
3. Voidable: fraud in the inducement, undue influence, a minor grantor
4. A voidable deed passes title, subject to the grantor's right to rescind
5. A bona fide purchaser from the grantee of a voidable deed takes free of rescission

Exceptions: Recording does not turn a void deed into a good one · The recording acts protect against earlier unrecorded interests, not against void deeds

The six covenants of title

Three present covenants (seisin, right to convey, against encumbrances) break at delivery and do not run; three future covenants run and break later.

1. Seisin: the grantor owns the estate conveyed
2. Right to convey: the grantor has the power to transfer it
3. Against encumbrances: no mortgages, liens or easements except those the deed excepts
4. Warranty: the grantor will defend the title against lawful claims
5. Quiet enjoyment: the grantee will not be evicted by paramount title
6. Further assurances: the grantor will sign what is needed to perfect the title

Exceptions: Warranty and quiet enjoyment are breached only by actual or constructive eviction by paramount title; further assurances is breached when the grantor refuses to do what is needed to perfect the title. All three future covenants run with the land · The grantee's knowledge of an encumbrance such as a mortgage does not bar a claim on the covenant against encumbrances; the measure is the cost of removing it or the loss in value, capped at the price · Damages are generally capped at the price paid, plus interest and costs; later improvements and appreciation are not recoverable from the grantor · General warranty deed: all six covenants. Special warranty deed: covenants only against the grantor's own acts. Quitclaim: none

Majority rule: Present covenants are breached at delivery and do not run: only the first grantee may sue on them.
Minority rule: A minority of states let a remote grantee sue on them.

Estoppel by deed (after-acquired title)

A grantor who conveys by warranty deed land he does not own passes title to the grantee when he later acquires it; a quitclaim does not.

1. The grantor conveys land he does not own by a warranty deed
2. The grantor later acquires title
3. Title passes automatically to the grantee: the grantor is estopped
4. A quitclaim deed carries no after-acquired title
5. A later bona fide purchaser relying on the record is protected by the recording act

Exceptions: The estoppel runs against the grantor and those claiming under him, not against the true owner · Courts differ on whether a special warranty deed passes after-acquired title; the stem will use a general warranty deed or a quitclaim · A deed recorded before its grantor acquired title: courts divide on whether it is in the chain of title for later buyers, so the stem says (lesson 8)

Transfer by will: ademption, lapse and exoneration

A specific devise fails if the property is gone at death; a devisee who dies first takes nothing unless a statute saves the gift.

1. Specific devise: a particular parcel
2. Ademption by extinction: if the property is not in the estate at death, the devise fails (traditional identity rule)
3. Lapse: a devisee who dies before the testator takes nothing
4. Anti-lapse: a covered relative's gift goes to her descendants if she dies first, unless the will says otherwise
5. Exoneration is abolished: the devisee takes the land subject to the mortgage unless the will says otherwise

Exceptions: Modern approach (UPC §2-606): a devisee may take the unpaid sale price, insurance proceeds or a condemnation award · A lapsed gift falls into the residue unless the will or a statute provides otherwise: a gift to a stranger still lapses, because anti-lapse statutes cover only certain relatives (UPC §2-603: a grandparent, a descendant of a grandparent, or a stepchild of the testator; many states cover only descendants or siblings) · Devises come in three kinds: specific (a particular parcel), general (a sum or kind of property from the estate) and residuary (what is left); only a specific devise adeems · Intestacy: land passes to the heirs under the statute of the State where the land lies (the situs), whatever the owner's domicile

Title insurance

Title insurance indemnifies against defects that exist at the policy date, not those the insured creates; a standard policy excepts survey matters.

1. An indemnity contract against loss from title defects existing at the policy date
2. The insurer defends covered claims and pays covered loss up to the policy limit
3. An owner's policy protects the buyer; a lender's policy protects the mortgagee
4. Excluded: matters created by the insured, and matters arising after the policy date
5. Excluded: zoning and governmental regulation, and known matters the insured did not disclose
6. A standard policy excepts what a survey or inspection would show

Exceptions: Extended coverage, issued after a survey and inspection, removes some standard exceptions · Insurable title is not marketable title unless the contract says so (lesson 1) · A policy covers hidden record risks such as a forgery or an undelivered deed, unless it excludes them · An owner's policy does not run with the land: a later buyer for value is not insured and must buy her own policy

The three recording acts

Notice: no notice, you win. Race-notice: no notice and first to record. Race: first to record, whatever you knew.

1. Common law: first in time wins
2. Recording acts protect a later bona fide purchaser from an earlier unrecorded interest
3. Race statute: the first to record wins, whatever the buyers knew
4. Notice statute: a later purchaser for value without notice wins, whether or not she records first
5. Race-notice statute: a later purchaser for value without notice wins only if she records first

Exceptions: Notice is judged when the purchaser pays · The statutes protect against earlier unrecorded interests; they do not validate void deeds · The law of the State where the land lies (the situs) governs title · Torrens registration makes the certificate of title conclusive, and marketable title acts extinguish old interests not re-recorded (general)

Bona fide purchasers and notice

A protected purchaser gives value and takes without actual, record or inquiry notice; donees, heirs and devisees do not count.

1. Gives value (not a donee, heir or devisee)
2. Takes without notice when she pays
3. Actual notice: she knows
4. Record notice: a properly recorded instrument in her chain of title
5. Inquiry notice: facts that would lead a buyer to ask, such as another's possession or a reference in a recorded deed

Exceptions: A mortgagee who lends value is a purchaser; a judgment creditor usually is not, unless the statute includes creditors · Misindexed or unacknowledged instruments: courts divide on whether they give record notice, so the stem says · A visible, apparent easement can also give inquiry notice to a buyer who inspects the land · Value must be more than nominal, and an antecedent debt is generally not value (general)

Shelter rule, wild deeds and the chain of title

A buyer from a bona fide purchaser takes the protection even with notice; a deed outside the chain of title gives no record notice.

1. Shelter rule: a buyer from a bona fide purchaser takes the purchaser's protection, even with notice
2. The original grantor cannot use the shelter to take the land back
3. Chain of title: a searcher traces each grantor from the time that grantor acquired title
4. Wild deed: a recorded deed outside the chain gives no record notice
5. Recording does not make a void deed good

Exceptions: Most states use a grantor-grantee index; some use a tract index · A buyer who searched only the correct names and periods in the chain is not charged with deeds outside it · Courts divide on a deed recorded before its grantor acquired title and on a deed recorded late, after the grantor's recorded deed to someone else; the stem says whether either is in the chain

Battery

Battery is an intended harmful or offensive contact with the plaintiff's person. No injury is needed, and the plaintiff need not know.

1. An act by the defendant
2. Intent to cause a harmful or offensive contact (or imminent apprehension of one)
3. A harmful or offensive contact with the plaintiff's person
4. The act causes the contact

Exceptions: Offensive means offensive to a reasonable sense of personal dignity, an objective test · No physical injury is required, and an unconscious or sleeping plaintiff can recover · Words alone are not a contact

Intent in the intentional torts

Intent is purpose or knowledge to a substantial certainty. Motive and mistake do not matter, and a child can have it.

1. An act by the defendant
2. Purpose to bring about the contact or invasion, or knowledge to a substantial certainty that it will result

Exceptions: Motive is irrelevant: a joking or kindly motive does not negate intent · A mistake of fact is no defense: the intent required is to do the act (to touch, to enter), not to commit a wrong · Transferred intent: intent to commit battery, assault, false imprisonment, trespass to land or trespass to chattels against one person supports liability for any of those five against whoever is actually affected · Children and others who understand the consequence of the act can have tortious intent; there is no minimum age · The defendant must intend the act, not the full extent of the harm that follows

Assault

Assault is the apprehension tort: a reasonable expectation of an imminent harmful or offensive contact. Apprehension is not fear.

1. An act by the defendant
2. Intent to cause a harmful or offensive contact or the imminent apprehension of one
3. The plaintiff reasonably apprehends an imminent harmful or offensive contact
4. The act causes the apprehension

Exceptions: Apprehension means expecting the contact, not being afraid of it; a brave plaintiff can recover · A threat of future harm is not imminent · Words alone usually do not suffice, and words can negate a threatening act · Apparent ability is enough: an unloaded gun that looks loaded can support assault

False imprisonment and the shopkeeper's privilege

False imprisonment needs intended confinement within bounds fixed by the defendant, with awareness or harm. Stores may detain reasonably.

1. An act or omission by the defendant
2. Intent to confine the plaintiff
3. Confinement within boundaries fixed by the defendant, with no known reasonable means of escape
4. The plaintiff is aware of the confinement or is harmed by it

Exceptions: Means of confinement: physical barriers, force or threats of immediate force, invalid assertion of legal authority · Not confinement: moral pressure, threats of future harm, economic pressure · An escape that is dangerous, humiliating or damaging to property is not a reasonable means of escape · Shopkeeper's privilege: reasonable grounds to suspect theft, a reasonable manner and a reasonable time; the privilege holds even if the person detained is innocent

Intentional infliction of emotional distress

IIED needs extreme and outrageous conduct, intent or recklessness, and severe distress. No physical injury is required.

1. Extreme and outrageous conduct
2. Intent to cause severe emotional distress, or recklessness as to it
3. Severe emotional distress
4. The conduct causes the distress

Exceptions: No physical impact or physical injury is required, but the distress must be severe · Insults, indignities and petty oppressions rarely qualify; abuse of power, knowledge of a special vulnerability and repetition make conduct more outrageous · A third party present when the conduct is directed at an immediate family member may recover; another present bystander must also suffer bodily harm · Hustler v. Falwell: a public figure cannot recover for a parody or opinion publication without a false statement of fact made with actual malice; Snyder v. Phelps: picketing on matters of public concern is protected

Trespass to land, trespass to chattels and conversion

Trespass to land needs only intent to enter. Trespass to chattels needs dispossession or harm. Conversion is a serious interference that forces a sale.

1. Trespass to land: intent to enter, or cause entry on, land in another's possession
2. Trespass to chattels: intermeddling that dispossesses, harms or deprives the owner of use
3. Conversion: interference serious enough to justify a forced sale at full value

Exceptions: Mistake and good faith are no defense to any of the three torts · Trespass to land: no harm is required, nominal damages are available, and a good-faith boundary mistake is no defense · Trespass to chattels is actionable on a dispossession (taking it), or on harm: impairment, loss of use for a substantial time, or bodily harm (Rest. 2d §218) · Conversion factors: extent and duration of control, intent to assert a right inconsistent with the owner's, good faith, harm done, and expense to the owner; remedy is full value · Smoke, noise and odors are traditionally nuisance, not trespass

Consent as a defense to intentional torts

Consent defeats an intentional tort inside its scope. Fraud about the essential nature of the act or exceeding the scope ends it; emergencies imply it.

1. Actual consent, express or implied from conduct or custom
2. Or apparent consent on which the defendant reasonably relied
3. The defendant's conduct stays within the scope of the consent
4. The consent was not obtained by fraud about the essential nature of the act, or by duress

Exceptions: Emergency: consent is implied for an unconscious person when delay would endanger life or health and no representative is available · Fraud about a collateral matter does not defeat consent · A person who lacks capacity cannot consent

Self-defense, defense of others and defense of property

Reasonable, proportionate force against reasonably apparent unlawful force. Never deadly force, or spring guns, only to protect property.

1. A reasonable belief that unlawful force is imminent; a reasonable mistake is protected
2. Force proportionate to the threat: deadly force only against deadly or serious bodily harm
3. Property: reasonable non-deadly force, after a request to desist when practical
4. The initial aggressor has no privilege until he withdraws

Exceptions: No deadly force, and no deadly mechanical device, solely to protect property (Katko v. Briney) · Defense of others: most courts protect a reasonable belief that the third person could defend herself; a minority treats the defender as standing in the third person's shoes · Provocation by words alone does not justify force · Whether a duty to retreat exists before deadly force varies by state; the stem says

Public and private necessity

Necessity privileges entry or use of another's property in an emergency. Public necessity costs nothing; private necessity makes you pay for the damage.

1. An actual or reasonably apparent emergency threatens a person or property
2. Interference with another's property is reasonably necessary to avoid it

Exceptions: Public necessity (danger to the community): a complete privilege, no liability · Private necessity (protecting self or one's own property): privileged, but the actor pays for actual damage · The classic privileges (Vincent, Surocco) cover interference with property; necessity is not a license to injure an innocent person · The owner may not eject a person acting under private necessity · An incomplete privilege excuses the act but attaches a condition, here payment

Other privileges: parental discipline, arrest and recapture of chattels

Reasonable force is privileged to discipline a child, to arrest a felon, and to retake goods in fresh pursuit. Excess force ends the privilege.

1. Parental discipline: reasonable force or confinement for the child's control and training, in proportion to age and misbehavior
2. Citizen's arrest: a felony was in fact committed and the citizen reasonably suspects the person arrested; reasonable force only
3. Recapture of chattels: reasonable non-deadly force, in fresh pursuit, after a demand, against one who took the goods wrongfully

Exceptions: Excessive force ends the privilege and is itself a battery · A seller may not use force against a buyer who holds the goods by the seller's consent, such as a defaulting buyer; it must use legal process or, with a security interest, peaceful repossession without a breach of the peace (UCC 9-609) · A police officer may arrest on probable cause; a private citizen's common-law privilege depends on a felony actually having been committed, and a mistake about that is traditionally no protection (states vary) · A teacher's privilege to discipline is much narrower than a parent's, and many states bar corporal punishment in schools

The five elements of negligence

Negligence is duty, breach, actual cause, proximate cause and damages. NCBE says about half of the Torts questions are on negligence.

1. Duty of care owed to the plaintiff
2. Breach: conduct below the standard of a reasonably prudent person
3. Actual cause (but-for or substantial factor)
4. Proximate cause (scope of the risk)
5. Actual damage (not nominal): harm of a kind the law compensates in negligence

Exceptions: Damage is an element: nominal damages are not available in negligence · Emotional distress without physical harm is recoverable in negligence only in the NIED categories (see the rule on negligent infliction of emotional distress) · Hand formula (Carroll Towing): breach if the burden of precaution is less than the probability of harm times its gravity (B < PL); an aid, not a required test · NCBE: approximately half of the Torts questions are based on negligence

Duty to foreseeable plaintiffs (Palsgraf)

Majority rule: duty runs only to plaintiffs within the zone of danger the conduct foreseeably creates. A reasonable rescuer is always a foreseeable plaintiff.

1. The defendant's conduct creates an unreasonable risk of harm to others
2. The plaintiff is within the zone of danger that risk foreseeably creates

Exceptions: A duty to this plaintiff exists only if both elements are met; breach, causation and damages must then still be proved · Reasonable rescuers are foreseeable plaintiffs (danger invites rescue); a rash or reckless rescuer may have the recovery reduced · Rest. 3d treats the question as scope of the risk under proximate cause (§29), which NextGen names

Majority rule: Cardozo in Palsgraf: duty is owed only to foreseeable plaintiffs in the zone of danger; negligence in the air is not enough.
Minority rule: Andrews's dissent: a duty is owed to everyone, and proximate cause limits liability.

No duty to act, and its exceptions

No general duty to rescue. Duty arises from a special relationship, from creating the peril, or from an undertaking that adds risk or induces reliance.

1. General rule: no duty to rescue or aid a stranger
2. Exception: a special relationship (carrier, innkeeper, business and invitee, custodian, school)
3. Exception: the defendant created or worsened the peril
4. Exception: an undertaking that increases the risk or induces reliance

Exceptions: Good Samaritan statutes protect volunteers from liability for ordinary negligence; they do not create a duty · A person who takes charge of a helpless person must not leave him worse off (Rest. 2d §324) · Rest. 3d §42: an undertaking creates a duty only if failing to use care increases the risk or the person relied on the undertaking

Duty to control the conduct of third persons

No duty to control another person without a special relationship and a foreseeable danger. Tarasoff: protect a reasonably identifiable victim.

1. General rule: no duty to control the conduct of a third person
2. A special relationship with the dangerous person (parent and child, custodian, employer and employee, therapist and patient)
3. The danger is foreseeable and the defendant can control the person
4. Or a special relationship with the potential victim (for example, landowner and invitee)

Exceptions: Tarasoff: a therapist who knows a patient is a serious danger to a reasonably identifiable victim must take reasonable steps to protect the victim; the exact scope varies by state · Parents are not vicariously liable at common law, but they are liable for their own negligence in failing to control a child they know to be dangerous · Negligent entrustment of a car or gun to someone known or likely to misuse it is the supplier's own negligence · A car owner is not vicariously liable for a permitted driver at common law; a family-purpose doctrine or an owner-consent statute changes that only if the stem names it · A statute may make parents liable, up to a stated cap, for a child's willful or malicious property damage; the stem states the statute

The reasonable person, and who gets a different standard

An objective reasonable person: physical disability counts, mental illness does not. Children get a child standard except in adult activities.

1. Objective standard: a reasonably prudent person under like circumstances
2. Physical characteristics, such as blindness, are taken into account
3. Mental illness and low intelligence are not
4. A child: a reasonable child of like age, intelligence and experience, except in adult activities
5. A professional: the skill and knowledge of a reasonable member of the profession

Exceptions: Sudden, unforeseeable incapacity, such as an unexpected heart attack, is a defense · Emergency: judged as a reasonable person would act in the emergency, if the defendant did not create it · Adult activities, such as driving a car or operating a motorboat or snowmobile, take the adult standard even for a child · Professional negligence usually needs expert testimony unless it is within common knowledge; states split on informed-consent disclosure (reasonable physician or reasonable patient) · Very young children: Rest. 3d §10(b) treats a child under five as incapable of negligence; older rules vary by state, so the stem will say

Custom, and arguing breach

Custom is evidence of due care, not conclusive. A whole industry can lag. Hand's formula: B less than P times L means negligent.

1. Custom is relevant evidence of reasonable care
2. Custom is not conclusive: an entire industry can lag behind reasonable care
3. Hand formula: negligent if the burden of the precaution is less than the probability of harm times its gravity
4. Compliance with a statute or regulation is evidence of due care, not a bar

Exceptions: In professional malpractice, custom largely sets the standard · Violating a custom is evidence of negligence, not negligence itself

Negligence per se

A statute sets the standard if the plaintiff is in the protected class and the harm is of the type the statute targets. Causation is still required.

1. The defendant violated a statute or ordinance
2. The plaintiff is within the class of persons the statute protects
3. The harm is of the type the statute was meant to prevent
4. The violation is unexcused

Exceptions: Effect: an unexcused violation establishes breach; causation and damages must still be proved · Excuses: incapacity, an emergency not of the defendant's making, compliance would be more dangerous, reasonable ignorance of the facts that trigger the statute · A violation of a licensing statute generally is not negligence per se: lack of a license does not cause a crash · Compliance with a statute is evidence of due care, not a bar

Res ipsa loquitur

When an accident does not ordinarily happen without negligence, and the defendant controlled the cause, the jury may infer breach.

1. The event ordinarily does not occur without negligence
2. It was caused by an instrumentality within the defendant's control
3. Other responsible causes, including the plaintiff's own conduct and third persons, are sufficiently eliminated

Exceptions: Effect: usually a permissible inference of negligence that gets the plaintiff to the jury; a few states treat it as a presumption · Ybarra v. Spangard: an unconscious patient may reach all the defendants who controlled his care · Many comparative-fault states relax the third element and reduce damages instead · It supports breach only; the plaintiff must still prove causation and damages

Duties owed to entrants on land (the traditional scheme)

Classify the entrant first. Trespasser: almost nothing. Licensee: warn of known hidden dangers. Invitee: inspect and make safe.

1. Undiscovered trespasser: no duty, except to refrain from willful or wanton harm
2. Discovered or anticipated trespasser: warn of or make safe known, concealed, artificial, highly dangerous conditions
3. Licensee, including a social guest: warn of known concealed dangers; no duty to inspect
4. Invitee: reasonable care, including inspection to find hidden dangers
5. Child trespasser: reasonable care under the Rest. 2d §339 test

Exceptions: Scope: an invitee who goes beyond the area of the invitation is a licensee or trespasser there · Active operations (driving, machinery) require reasonable care toward everyone lawfully present and toward known trespassers · Open and obvious dangers: traditionally no duty to warn; Rest. 2d §343A still imposes liability where harm is foreseeable despite obviousness · Slip-and-fall: the plaintiff must show the defendant created the condition or had actual or constructive notice · Firefighter's rule: professional rescuers generally cannot recover for the negligence that created the need for their services · Landlords are generally not liable for leased premises, except common areas, concealed known defects, premises leased for public admission, negligent repairs and promised repairs

Child trespassers: Restatement §339

Reasonable care to child trespassers only if all five factors are met: known likelihood, known risk, no appreciation, cheap fix, no care.

1. The possessor knows or has reason to know that children are likely to trespass where the condition is
2. He knows or should know that it poses an unreasonable risk of death or serious bodily harm to children
3. Children, because of their youth, do not discover the condition or realize the risk
4. The utility of maintaining the condition and the burden of eliminating the danger are slight compared with the risk to children
5. He fails to use reasonable care to eliminate the danger or protect the children

Exceptions: It covers artificial conditions only · Attraction onto the land is not required under the Restatement test · Older children may fail the third factor because they appreciate the risk

Entrants: traditional status or the modern approach

Silence means the traditional status scheme. Only a stem that adopts reasonable care to all lawful entrants makes status just one factor.

1. The possessor owes reasonable care under all the circumstances
2. The duty runs to every lawful entrant, a social guest included
3. The entrant's status (invitee, licensee) is only one factor in deciding whether care was reasonable

Exceptions: On the MBE, read the stem first: if it is silent, classify the entrant and apply the traditional duties · About half of the states have modified the licensee and invitee categories; only a handful have abolished all categories, trespassers included · Rest. 3d (§51): reasonable care to all entrants except flagrant trespassers

Traditional rule: Duty depends on the entrant's status: trespasser, licensee or invitee. This is the safe default when the stem is silent.
Modern trend: Reasonable care under all the circumstances to lawful entrants (Rowland v. Christian); status is only a factor.

Negligent infliction of emotional distress

Zone of danger for direct victims; close relative present who perceives the event as it happens for bystanders. Special relationships have their own rule.

1. Direct victim: placed in the zone of danger of physical impact by the defendant's negligence
2. Bystander: a close relative of the person injured
3. Bystander: present at the scene
4. Bystander: contemporaneous sensory perception of the injury-producing event
5. Special relationships or undertakings: mishandled corpse, erroneous death notice

Exceptions: Jurisdictions differ on whether physical symptoms are required; the stem says · Gottshall adopted the zone-of-danger test for FELA claims and noted that the physical impact test had few followers · A bystander who arrives afterward does not qualify under the contemporaneous-perception requirement · NextGen names negligent reporting of a family member's death as a special-relationship case

Pure economic loss

Negligence does not compensate purely financial loss without injury to the plaintiff's person or property. A product that harms only itself is contract.

1. Ask: is the harm injury to the plaintiff's person or her own property?
2. If it is purely financial, there is no negligence recovery
3. If there is physical injury or property damage, the economic losses that follow are recoverable

Exceptions: Exceptions: negligent misrepresentation to a limited group, intended beneficiaries of professional services (a negligent will drafter), and public nuisance with special injury · A product that damages only itself is economic loss, governed by warranty and contract (East River) · The utility whose cable was cut can recover; businesses that lost power cannot

Actual cause: but-for, substantial factor and shifted burdens

But-for is the default; multiple sufficient causes are each a substantial factor; if it is unknowable which negligent defendant did it, the burden shifts.

1. But-for: the harm would not have occurred without the defendant's conduct
2. Multiple necessary causes: each is a but-for cause
3. Multiple sufficient causes: each is a substantial factor in causing the harm
4. Alternative liability: the burden shifts to each negligent defendant to disprove causation

Exceptions: Alternative liability (Summers v. Tice) needs defendants before the court who were each negligent toward the plaintiff; if neither disproves causation, both are jointly and severally liable · Market share liability (Sindell v. Abbott Laboratories) for fungible products with an unknown manufacturer is accepted in a minority of states, with liability in proportion to market share · Concert of action: those who act in a common plan are each liable for the other's tort · Divisible harm: each defendant answers for the part he caused, and the defendants must prove the division

Loss of a chance

States split on whether a patient whose chance of survival was already 50% or less can recover for the lost chance.

1. The defendant's negligence reduced the plaintiff's chance of a better outcome
2. Traditional view: no recovery unless the chance was better than even
3. Modern view: recovery for the lost chance itself, often in proportion to the chance lost

Traditional rule: No recovery if the plaintiff's chance of a better outcome was 50% or less; the plaintiff must prove that the negligence more likely than not caused the harm.
Modern trend: Recovery for the lost chance itself, usually in proportion to the chance lost.

Proximate cause: scope of the risk

Liable only for the kind of harm that made the conduct negligent. The extent of harm does not matter, and foreseeable intervening forces do not supersede.

1. The harm is of a kind that made the defendant's conduct negligent (scope of the risk)
2. The kind of harm must be foreseeable; the extent need not be (the eggshell plaintiff)
3. No unforeseeable, extraordinary intervening cause supersedes the defendant's negligence

Exceptions: Eggshell plaintiff: once a foreseeable physical harm is shown, the defendant takes the plaintiff as he finds her, with the full extent of the harm · Rescuers are foreseeable plaintiffs · A negligent act that increased none of the risk of the harm that occurred is not a proximate cause, even if it was a but-for cause

Traditional rule: Directness (Polemis): liable for every direct consequence, foreseeable or not.
Restatement (Third): Wagon Mound and Rest. 3d §29: liable only for harms within the scope of the risks that made the conduct negligent.

Multiple tortfeasors: joint and several liability, contribution, indemnity

Each liable defendant answers for the whole indivisible award. The one who overpays seeks contribution; a purely vicarious defendant gets full indemnity.

1. Joint and several: each liable defendant answers for the whole indivisible award
2. Contribution: the defendant who pays more than her share recovers the excess, by comparative share
3. Indemnity: full shifting of the loss to the one primarily at fault
4. A release of one tortfeasor does not release the others unless it says so; the others get credit for the amount paid

Exceptions: Many states have limited or abolished joint and several liability; the stem says, and silence means it applies (NCBE default) · Indemnity: an employer held vicariously liable against its employee; an innocent retailer held strictly liable against the manufacturer; an express contract · How a settlement credit is computed (dollar for dollar or by comparative share) is state-specific; the stem says · Whether a modified-comparative bar compares the plaintiff with each defendant or with all defendants together varies; the stem says

Vicarious liability: employees and scope of employment

An employer answers for an employee's torts within the scope of employment: a detour stays in, a frolic is out. Negligent hiring is the employer's own fault.

1. Employment: the employer controls the manner and means of the work
2. The tort is within the scope of employment: the kind of work, roughly within time and space, motivated at least in part to serve the employer
3. A minor detour stays within scope; a frolic leaves it
4. The employer is also liable for its own negligent hiring, retention, supervision or entrustment

Exceptions: Violating the employer's rules does not take an act out of the scope of employment · Going and coming from work is generally outside the scope · An employee's intentional tort is within scope if motivated at least in part by a purpose to serve the employer · An employer held vicariously liable may seek indemnity from the employee · Partners: a partnership, and each partner, answers for a partner's tort committed in the ordinary course of the partnership's business

Independent contractors and nondelegable duties

A hirer is not liable for an independent contractor's torts, except for inherently dangerous work, nondelegable duties, its own negligence, and apparent agency.

1. General rule: the hirer is not liable for an independent contractor's torts
2. Exception: inherently dangerous work (blasting, demolition)
3. Exception: nondelegable duties (premises safety for invitees, public roads, statutory duties)
4. Exception: the hirer's own negligence in selecting or controlling the contractor
5. Exception: apparent agency

Exceptions: Control test: the right to control the manner and means of the work, not the label in the contract · Relevant factors: skill required, who supplies tools, duration, method of payment, whether the work is part of the hirer's regular business · NextGen: employer and agent vicarious liability is tested under Business Associations; nondelegable duties (which many courts extend to inherently dangerous work) and parental responsibility stay in Torts

The plaintiff's fault: pure comparative, modified, or contributory

The default is pure comparative fault: reduce, never bar. Modified comparative and contributory negligence appear only if the stem says so.

1. Pure comparative fault (the default): reduce damages by the plaintiff's percentage, never bar
2. Modified comparative: bar a plaintiff at 50% or 51% or more, as the stem states
3. Contributory negligence: any plaintiff fault bars recovery, only if the stem says so
4. Last clear chance rescues a plaintiff from contributory negligence, only if the stem says so

Exceptions: NCBE's own analysis names the contributory-negligence jurisdictions: Alabama, Maryland, North Carolina, Virginia and the District of Columbia · Modified comparative fault bars at 50% in some jurisdictions and at 51% in others; the stem states which · A plaintiff's ordinary negligence is generally no defense to an intentional tort · Last clear chance (MBE only; not in NextGen): the defendant had the last clear opportunity to avoid the harm and knew or should have known of a helpless plaintiff's peril (actual knowledge for an inattentive plaintiff)

Majority rule: Comparative fault of some kind: the plaintiff's recovery is reduced by her share (pure, by the MBE default).
Minority rule: Contributory negligence: any fault of the plaintiff bars recovery, if the stem says the jurisdiction follows it.

Assumption of risk: express, primary and secondary

Express: a clear release, not for gross negligence. Primary: no duty for inherent risks. Secondary: folds into comparative fault.

1. Express assumption: a clear release of the defendant's negligence, enforceable unless it covers gross negligence, recklessness or intentional harm, or offends public policy
2. Primary implied assumption: the plaintiff encountered a risk inherent in the activity, so the defendant owed no duty about it
3. Secondary implied assumption: the plaintiff knowingly encountered a risk created by the defendant's negligence; it merges into comparative fault

Exceptions: Knowledge of the actual risk and voluntary encounter are required · Releases are read narrowly and are not enforced for essential services (Tunkl) · Ordinary collisions in contact sports are the classic primary-assumption example (Knight v. Jewett); some states apply a limited-duty rule to foul balls

Damages: compensatory, collateral source, punitive and consortium

Compensatory covers general and special losses. The collateral source rule ignores insurance. Punitive needs malice or recklessness, never mere negligence.

1. Compensatory damages: general (pain, suffering) and special (medical costs, lost earnings, property loss)
2. Collateral source rule: benefits from independent sources are not deducted from damages
3. Punitive damages: malice or willful or reckless conduct, never mere negligence, within due process limits
4. Loss of consortium: a derivative claim, reduced by the injured spouse's comparative fault
5. American rule: each side pays its own attorney's fees
6. Mitigation: no recovery for losses the plaintiff could have avoided by reasonable effort

Exceptions: Nominal damages are not available in negligence; they are available for intentional torts such as trespass and battery · Many states have changed the collateral source rule by statute and cap noneconomic damages; the stem says · BMW v. Gore: reprehensibility, ratio and comparable penalties; State Farm v. Campbell: few awards exceeding a single-digit ratio will satisfy due process

Survival actions and wrongful death

Assume both exist. Survival continues the dead person's own claim in the estate. Wrongful death gives survivors their own losses.

1. Survival action: the decedent's own claim continues in the estate
2. It covers pain and suffering before death, medical costs and lost earnings before death
3. Wrongful death: the survivors' own statutory claim for their losses
4. It covers support, companionship and funeral costs

Exceptions: The MBE tells you to assume both kinds of claim are available · The decedent's comparative fault reduces both

Strict liability for animals

Wild animal: strict liability, however careful. Domestic animal: only with notice of a dangerous propensity. Trespassing livestock: strict for its harm.

1. Wild animal: the possessor is strictly liable for harm from its dangerous propensities, however careful
2. Domestic animal: strictly liable only if the possessor knew or had reason to know of an abnormally dangerous propensity
3. Trespassing livestock: strictly liable for the foreseeable harm of the intrusion
4. Harm must flow from the animal's dangerous propensity

Exceptions: A prior bite is not required for a domestic animal: repeated lunging or aggression gives notice · Normal playfulness is not notice of a dangerous propensity · Dog-bite statutes in many states impose strict liability; the stem says when one applies · Trespassing livestock: liability covers harm to the land, its possessor, household members and their chattels that might reasonably be expected from the intrusion (a trespassing bull gores the farmer) · Animals straying onto land from a highway, and fence-out statutes in some western states, are negligence or statute questions; the stem says · A trespasser on the keeper's land generally cannot claim strict liability for a wild animal kept there (Rest. 2d §511); negligence may still apply

Abnormally dangerous activities

Strict liability for activities that stay highly dangerous despite care and are uncommon. Due care is no defense; harm must come from the abnormal risk.

1. A high degree of risk of some harm
2. A likelihood that the harm will be great
3. Inability to eliminate the risk by reasonable care
4. The activity is not a matter of common usage
5. It is inappropriate to the place where it is carried on
6. Its value to the community is outweighed by its dangerous attributes

Exceptions: Due care is no defense · The harm must result from the risk that makes the activity abnormally dangerous (NCBE's NextGen text) · Defenses: the plaintiff's comparative fault (traditionally only knowingly and unreasonably encountering the risk) and assumption of risk · An unexpected act of a third person, an animal or a force of nature does not excuse the defendant if the harm is within the abnormal risk (Rest. 2d §522) · Whether an activity is abnormally dangerous is a question of law for the court

Traditional rule: Rest. 2d §520: the six-factor balancing test, decided by the court.
Restatement (Third): Rest. 3d §20: a foreseeable and highly significant risk of physical harm even with reasonable care by all actors, and not an activity of common usage.

Private and public nuisance

Private nuisance: a substantial, unreasonable interference with use and enjoyment of land. Public nuisance needs special harm different in kind.

1. Private nuisance: a nontrespassory invasion of the plaintiff's use and enjoyment of her land
2. Substantial: significant harm to a person of normal sensitivity
3. Unreasonable: the gravity of the harm outweighs the utility of the conduct
4. Public nuisance: interference with a right common to the public; a private plaintiff needs special harm different in kind

Exceptions: A private nuisance may rest on intentional and unreasonable conduct, on negligent or reckless conduct, or on abnormally dangerous activities (Rest. 2d §822) · Locality: the character of the neighborhood bears on whether an interference is unreasonable · Coming to the nuisance is a factor, not a bar (Spur Industries v. Del E. Webb) · Compliance with zoning or a license is evidence of reasonableness, not a defense · Remedies: damages, injunction, abatement; Boomer v. Atlantic Cement permits denying an injunction on payment of permanent damages · A hypersensitive plaintiff loses unless an ordinary person or ordinary use would also be affected

Strict products liability

A commercial seller is strictly liable for a product that was defective when it left its hands and caused physical harm to a person or other property.

1. The defendant is a commercial seller engaged in the business of selling the product
2. The product was defective when it left the defendant's control
3. It reached the plaintiff without substantial change
4. The defect actually and proximately caused the harm
5. Physical harm to a person or to property other than the product itself

Exceptions: Not strictly liable: casual sellers (a garage sale) and pure service providers · Anyone foreseeably harmed may sue: users, consumers and bystanders; privity is not required · Every commercial seller in the chain is liable; an innocent retailer may seek indemnity from the manufacturer · Damage only to the product itself is economic loss for warranty or contract (East River) · Negligence is a separate route: a maker owes reasonable care to every foreseeable user, without privity (MacPherson)

UCC warranties against a seller of goods

Warranty is contract: an affirmation of fact, merchantability or fitness. Fault is not required, and who may sue depends on 2-318.

1. Express warranty (2-313): an affirmation of fact or promise that is part of the basis of the bargain
2. Implied warranty of merchantability (2-314): a merchant's goods are fit for their ordinary purposes
3. Implied warranty of fitness (2-315): the seller knows the buyer's particular purpose and that the buyer relies on the seller's skill to select the goods
4. Disclaimer (2-316(2)): language excluding merchantability must mention it and, if written, be conspicuous
5. Who may sue (2-318): the buyer, and the beneficiaries that the state's version of the section names

Exceptions: No proof of fault is needed: a breach of warranty is a breach of contract, so a seller who took all possible care can still be liable · Language such as 'as is' ordinarily excludes all implied warranties (2-316(3)(a)) · The buyer must notify the seller of the breach within a reasonable time (2-607(3)(a)) · A limit on consequential damages for personal injury from consumer goods is prima facie unconscionable (2-719(3)) · The stem names which alternative of 2-318 the state has adopted

Three kinds of product defect

Made wrong, designed wrong, warned wrong. Under Rest. 3d only manufacturing defects are truly strict; design and warning claims turn on reasonableness.

1. Manufacturing defect: the product departs from its intended design, even with all possible care
2. Design defect: a reasonable alternative design would have reduced the foreseeable risk, and omitting it makes the product not reasonably safe
3. Warning defect: reasonable instructions or warnings would have reduced the foreseeable risk

Exceptions: Under Rest. 3d only manufacturing defects are truly strict; under the consumer-expectations test that many states keep, a design defect is strict too · No duty to warn of open and obvious dangers · Learned intermediary: for prescription drugs the warning goes to the prescribing physician · Foreseeable misuse must be guarded against by design or warning · A product with an inherent danger and no feasible safer design (knives, whiskey) is not defective for that reason alone

Restatement (Third): Rest. 3d §2(b): risk-utility, usually requiring proof of a reasonable alternative design.
Traditional rule: Many states still use or add the consumer-expectations test for design defects.

Defenses to a products claim

Comparative fault, unforeseeable misuse and substantial alteration help the maker. Disclaimers, privity and foreseeable misuse do not.

1. Comparative fault reduces recovery, including knowing and unreasonable assumption of risk
2. Foreseeable misuse is no defense; unforeseeable misuse is
3. A substantial, unforeseeable alteration after sale that causes the harm relieves the maker
4. State of the art matters in design and warning claims, not manufacturing defects
5. Compliance with regulation is evidence of due care, not a bar
6. Disclaimers do not defeat personal-injury strict liability

Exceptions: Federal preemption can bar state claims: premarket-approved devices (Riegel); brand-name drug warnings usually are not preempted (Wyeth v. Levine); generic drug claims largely are (Mensing) · UCC 2-719(3): limiting consequential damages for personal injury from consumer goods is prima facie unconscionable · Failure to discover a defect is not comparative fault under Rest. 2d §402A cmt. n; a plaintiff's unreasonable encounter with a known danger still reduces recovery

Defamation: the common-law elements

A false defamatory statement of fact about the plaintiff, published to a third person, with required fault; slander needs special damages unless per se.

1. A false and defamatory statement of fact
2. Of and concerning the plaintiff
3. Published to at least one third person
4. Fault, to the degree the Constitution requires
5. Damages: presumed for libel; special damages for slander unless it is slander per se

Exceptions: Slander per se (no special damages needed): imputing a crime, a loathsome disease, unfitness in business, trade or profession, or serious sexual misconduct · Truth is a defense at common law; the First Amendment puts the burden of proving falsity on a private-figure plaintiff suing a media defendant over speech of public concern (Hepps) · Consent: a plaintiff who invites or agrees to the publication cannot complain of it (Rest. 2d §583) · Of and concerning: a statement about a large group does not reasonably refer to any one member; a small, identifiable group can · A republisher is liable as if she originated the statement · Absolute privileges: judicial and legislative proceedings and high executive officials; qualified privileges (employer references, common interest, fair report) are lost by abuse

Constitutional limits on defamation

Public figure: actual malice. Private figure, public concern: negligence, actual injury only. Suing the media on public concern, she proves falsity.

1. Public official or public figure: actual malice, by clear and convincing evidence (Sullivan; Gertz)
2. Private figure, matter of public concern: at least negligence; presumed and punitive damages only with actual malice (Gertz)
3. Private figure, matter of private concern: state law governs, and presumed and punitive damages are allowed (Dun and Bradstreet)
4. A private-figure plaintiff suing a media defendant over speech of public concern must prove falsity (Hepps)
5. No separate opinion privilege, but statements not provable as false, and hyperbole, are protected (Milkovich)

Exceptions: Actual malice means knowledge of falsity or reckless disregard of the truth, a subjective test; failure to investigate is not enough (St. Amant) · A public official or public figure must prove falsity as well, because actual malice presupposes a false statement · A limited-purpose public figure is a public figure only as to the controversy she joined · Hustler v. Falwell: a public figure cannot recover for emotional distress from a parody without a false statement of fact made with actual malice

The four privacy torts

Intrusion needs no publication. Private-facts disclosure: truth is no defense. Appropriation: name or likeness. False light: knowing or reckless falsity.

1. Intrusion upon seclusion: a highly offensive intrusion on private affairs; no publication needed
2. Appropriation: use of the plaintiff's name or likeness for the defendant's benefit
3. Public disclosure of private facts: publicity that is highly offensive and not of legitimate public concern; truth is no defense
4. False light: publicity placing the plaintiff in a highly offensive false light, with knowledge or reckless disregard of the falsity

Exceptions: Cox Broadcasting: accurate publication of information from open public court records cannot be punished · Florida Star: truthful information lawfully obtained on a matter of public significance may be punished only for a state interest of the highest order · Time v. Hill: false light on matters of public interest requires knowledge of falsity or reckless disregard · Privacy rights are personal: except for appropriation, only the living person whose privacy was invaded may sue (Rest. 2d §652I); a few states reject false light

Misrepresentation: fraud and negligent misrepresentation

Fraud: false material fact, scienter, intent to induce, justifiable reliance and damages. Puffery is not a fact; silence needs a duty to disclose.

1. A false representation of a material past or present fact
2. Scienter: knowledge of falsity or reckless indifference to it
3. Intent to induce the plaintiff's reliance
4. Justifiable reliance
5. Damages: pecuniary loss

Exceptions: Puffery and opinion are not actionable, unless the speaker has superior knowledge or implies facts · Silence is actionable only with a duty to disclose: a fiduciary relationship, a half-truth, active concealment, or a statement that has become false · Negligent misrepresentation (Rest. 2d §552): false information supplied for others' guidance in business transactions, without reasonable care, liable to a limited group for pecuniary loss · Ultramares (privity or near-privity) and broad foreseeability are the other approaches; the stem says which applies · Innocent misrepresentation (Rest. 2d §552C): where adopted, a seller who innocently misrepresents a material fact to induce a sale is liable for the buyer's out-of-pocket loss; NextGen drops it

Interference with contract and prospective advantage

Inducing breach of a valid contract is tortious. Competition is privileged for prospective and at-will deals, not for inducing breach of a term contract.

1. A valid contract between the plaintiff and a third party
2. The defendant knew of the contract
3. The defendant intentionally induced a breach or nonperformance by improper means or purpose
4. Damages

Exceptions: Prospective advantage: a reasonable expectancy and interference by improper means such as fraud, defamation or threats · Competitor's privilege: fair competition is privileged for prospective relations and at-will contracts, not for inducing breach of a definite-term contract · Injurious falsehood (trade libel): a false statement disparaging goods, needing special damages and knowledge or reckless falsity

Malicious prosecution, wrongful civil proceedings and abuse of process

Malicious prosecution: a baseless case, begun for an improper purpose, that ended in the plaintiff's favor. Abuse of process: process misused for another aim.

1. The defendant began or continued criminal proceedings against the plaintiff
2. The proceedings ended in the plaintiff's favor
3. There was no probable cause
4. The defendant acted for an improper purpose
5. Damages

Exceptions: Wrongful civil proceedings: the same elements for a baseless civil suit; some states also require a special injury, such as seizure of property · Abuse of process: using legal process, even one properly begun, mainly for a purpose it was not designed for, plus a willful act in its use · A settlement or compromise is not a termination in the plaintiff's favor · These torts are not on NCBE's MBE outline; know them as background

The defaults the exam never repeats

Silence in the stem means the default: pure comparative fault, joint and several liability, the FRE, the FRCP, Article 2, the federal Constitution.

1. Torts: pure comparative fault and joint and several liability
2. Torts: wrongful-death and survival actions exist
3. Evidence: the Federal Rules of Evidence as currently in effect
4. Civil Procedure: the FRCP and the Title 28 sections on jurisdiction, venue and transfer
5. Contracts: the Official Text of UCC Articles 1 and 2 for goods
6. Constitutional Law: the federal Constitution
7. Criminal Law and Real Property: common law and the majority rule

Exceptions: When the stem names a rule ('applies contributory negligence', 'has a race-notice statute', 'follows the Model Penal Code'), the stem controls · NCBE states the Torts, Evidence, Civil Procedure, Contracts and Constitutional Law assumptions; the Criminal Law and Real Property conventions are standard practice, not an NCBE statement

What the MBE leaves out, the rest of your exam may test

The MBE has seven subjects. Business Associations is on the MEE; Family Law and Trusts and Estates now appear on the MPT. Check your board's list.

1. The MBE tests seven subjects: Civil Procedure, Constitutional Law, Contracts, Criminal Law and Procedure, Evidence, Real Property and Torts
2. Business Associations is not on the MBE; it is on the legacy MEE and on NextGen
3. From July 2026 the MEE no longer tests Conflict of Laws, Family Law, Trusts and Estates or Secured Transactions
4. Family Law and Trusts and Estates are tested regularly on the MPT through February 2028
5. Your board's own list of tested subjects decides what you study beyond the MBE

Exceptions: This app drills the MBE only: for the MEE and MPT, check your board and use separate practice

The qualifier changes the task

'If any' allows 'none', 'most accurate' wants the one true statement, 'unless' and 'only if' set a condition, and 'assume that' is an order.

1. 'If any': 'no crime' or 'none' can be the best answer
2. 'Most accurate': exactly one option has nothing false in it
3. 'Best argument': the one the rule supports on these facts
4. 'Unless' and 'only if': test the exception or the single condition
5. 'Regardless of': the named fact does not change the result
6. 'Assume that': an instruction that overrides what you think the law is

Exceptions: An absolute word ('always', 'never', 'only') is a reason to look again, not an automatic reason to reject · A true statement that answers a different question is still a wrong answer

The call picks the task: statement or argument

'Most accurate' asks which statement is true; 'best argument' asks what the rule supports here. A true answer to a different question is still wrong.

1. 'Most accurate': test each option alone as a statement of law, true or false
2. 'Best argument': test each option as advocacy supported by this rule on these facts
3. Either way, the key has nothing false in it and relies on no fact the stem lacks
4. A true statement aimed at a different question is still a wrong answer

Exceptions: In a 'most accurate' item, an absolute word in an option is a prompt to look for the exception, not an automatic strike

Three checkpoints and a nine-question block

33 questions by the first hour, 66 by the second, 100 by the third: about eight or nine every fifteen minutes.

1. One hour: about 33 questions done
2. Two hours: about 66 questions done
3. Three hours: all 100 done, with minutes left to revisit marked questions

Exceptions: The checkpoints are a pace to stay near, not a rule: a hard question early is paid for by an easy one later · The nine-question block is a drill pace, a little faster than the 8.25 per 15 minutes that 33 per hour implies; it is a brisk target that banks time, not an extra checkpoint

Mark, move, return; never leave a blank

Over about 2.5 minutes? Mark your best guess and move on. Before time is called, no blanks: wrong answers cost nothing.

1. Read the call and choose your best answer
2. If a question has used about 2.5 minutes, mark it and move on
3. Return to the marked questions after your first pass
4. Before time is called, fill every blank: no points are subtracted

Exceptions: Pretest questions look exactly like scored ones, so every question gets an answer · Only the answer sheet is scored, and there is no extra time to transfer answers

What a 140 is, and what it is not

A scaled 140 sits just under July 2026's national mean of 140.7. NCBE publishes no raw-to-scaled table, so do not chase a percentage.

1. The MBE is reported on a scaled score of about 40 to 200
2. NCBE publishes no table that turns raw answers into a scaled score
3. National means: 131.2 in February 2026 and 140.7 in July 2026
4. A scaled 140 sits just below the July 2026 national mean, and it does not mean 140 correct answers
5. On the UBE the MBE is half of a 400-point total, and each board sets its own passing total
6. Rule of thumb: aim for an MBE score that, matched by your written score, reaches your board's total (135 doubles to 270)

Exceptions: February takers are mostly repeaters and July takers mostly first-timers, so the two means are not directly comparable

How long to study: what is commonly recommended

Prep companies commonly recommend 400 to 500 hours over 8 to 10 weeks. That is a rule of thumb with no published data, so plan around practice, not the clock.

1. Prep companies commonly recommend about 400 to 500 hours
2. Usually spread over about 8 to 10 weeks of full-time study
3. That figure is a rule of thumb with no published data behind it
4. Practice testing and spaced review beat rereading and highlighting

Exceptions: Working candidates are commonly advised to spread the same hours over more weeks

The last 14 days: Closing argument

In the last 14 days the app runs review only: no new units, every learned card comes forward, and nothing is scheduled later than three days before the exam.

1. Review only: no new units in the last 14 days
2. Every card you have learned comes due, pulled forward
3. No review is scheduled later than three days before the exam
4. One full 100-question Session as a dress rehearsal, early in the window
5. Light days after it: the notebook of missed questions and your weakest subject

Exceptions: Days 28 to 15 before the exam are Discovery: mixed practice and one Mini-MBE a week

The night before

The night before: no new material, a quick look at your notebook of misses, the logistics laid out, and sleep.

1. Stop new material
2. Skim your notebook of missed questions, not whole outlines
3. Lay out what your board's instructions list
4. Plan the route and the arrival time
5. Sleep

Exceptions: If you cannot sleep, rest anyway: lying calmly is better than studying

The morning: follow your board, not a forum

Your board's instructions rule the morning. On the MBE only the answer sheet is scored, and there is no extra time to transfer answers.

1. Read your board's admission instructions again
2. Bring exactly what they list and nothing they ban
3. Arrive early enough that the first hour is not a sprint
4. Only the answer sheet is scored, with no extra time to transfer answers
5. Eat and drink, and use the wait to settle, not to cram

Exceptions: Rules about what you may bring differ by jurisdiction, so no list here is a substitute for your board's

Two optional stress tips, and where they come from

Two optional ideas from student studies: write your worries down for ten minutes, and treat a racing heart as your body getting ready.

1. Write down your worries for about ten minutes before you walk in (hotel room or car), where your board's rules allow
2. Tell yourself that a fast heartbeat is your body getting ready to perform
3. Both are optional, so use them only if they help you
4. Both come from small studies of students, not of bar candidates

Exceptions: If neither tip suits you, skip them: nothing about passing depends on them · Follow your board's rules about writing materials; most boards bar writing once you are seated, before time is called

The MBE dates NCBE lists

NCBE lists the MBE for February 24, 2027, July 28, 2027 and February 23, 2028. Your board sets your sitting and registration, so confirm with it.

1. The MBE is given on the last Wednesday of February and July
2. February 2027: the MBE on February 24 (listed by NCBE), the written day on February 23
3. July 2027: the MBE on July 28 (listed by NCBE), the written day on July 27
4. February 2028: the last legacy administration, with the MBE on February 23 (listed by NCBE)

Exceptions: Your board's own calendar controls registration and any state-specific parts

If your jurisdiction gives NextGen

Ten jurisdictions already give NextGen, twelve more join in July 2027, and the rest still give the legacy exam. Seven NextGen subjects are the MBE's.

1. NextGen began in July 2026 in 10 jurisdictions, and they give it in February 2027 too
2. Twelve more jurisdictions join in July 2027, about 22 in all
3. Every other jurisdiction that uses the MBE still gives the legacy exam; the last legacy sitting is February 2028
4. Through February 2028, seven of NextGen's eight subjects are the MBE's, so this course carries over
5. Business Associations, integrated question sets and performance tasks do not carry over

Exceptions: Check the NCBE jurisdiction table and your own board: a few dates have been announced differently on different pages · From July 2028 NextGen adds Family Law, so the overlap becomes seven of nine

Amicus's send-off

Objection sustained. Bar passed.

1. Read the call before the options
2. Predict the answer before you look at the choices
3. Name the trap each wrong option is using
4. Mark, move on, and never leave a blank

Exceptions: A true statement that does not answer the call is still a wrong answer