CRIMINAL PROCEDURE

1. Political question doctrinerefers to constitutional violations that the federal

courts will not adjudicate
a. The republican form of government clause (Art. IV Sec. IV)
b. Challenges to the Presidents conduct of foreign policy
c. Challenges to the impeachment and removal process
d. Challenges to partisan gerrymandering
2. Supreme Court Review
a. Virtually all cases come to the Supreme Court by writ of certiorari
i. All cases from state courts come to the Supreme Court by writ of
certiorari
ii. All cases from US court of appeals come to the Supreme Court by
writ of certiorari
iii. Appeals exist for decisions of three-judge federal district courts
iv. The Supreme Court has original and exclusive jurisdiction for suits
between state governments
b. Generally the Supreme Court may hear cases only after there has been a
final judgment of the highest state court, of a US Court of Appeals, or of a
three-judge federal district court
c. For the Supreme Court to review a state court decisionthere must be an
independent and adequate state law ground of decision. If a state court
decision rests on 2 grounds (1 state law and 1 federal law), if the Supreme
Courts reversal of the federal law ground will not change the result in the
case, the Supreme Court cant hear it
3. Lower federal court review
a. Federal courts (and state courts) may not hear suits against state
governments
i. Principal of sovereign immunity
1. 11th Amendmentbars suits against states in federal court
2. Sovereign immunity bars suits against states in state courts
of federal agencies
ii. ExceptionsStates may be sued under the following
circumstances:
1. Waiver is permitted
2. States may be sued pursuant to federal laws adopted under
Sec. 5 of the 14th Amendment. Congress cant authorize
suits against states under other constitutional provisions
3. The federal government may sue state governments
4. Bankruptcy proceedings
iii. Suits against state officers are allowed. They may be sued for:
1. Injunctive relief
2. Money damages to be paid out of their own pockets
3. State officers may not be sued if it is the state treasury that
will be paying retroactive damages
b. AbstentionFederal courts may not enjoin pending state court
proceedings
4. The Federal Legislative Power

CRIMINAL PROCEDURE
a. Congresss authority to act
i. Delegation of Powers
1. No limit exists on Congress ability to delegate legislative
power. (Wrong answer unconstitutional as an act of
delegation)
2. Legislative vetos and lin-item vetos are unconstitutional.
For Congress to act, there always must be bicameralism
(passage by both the House and the Senate) and
presentment (giving the bill to the Presidence and sign or
veto). The President must sign or veto the bill in its
entirety.
3. Congress may not delegate executive power to itself or its
officers
5. The Federal Executive Power
a. Foreign policy
i. Treatiesagreements between the US and a foreign country that
are negotiated by the President and are effective when ratified by
the Senate
1. Treaties prevail over conflicting state laws
2. If treaty conflicts with federal statute the one adopted
last in time controls
3. If treaty conflicts w/ US Constitution it is invalid
ii. Executive agreementsan agreement between the US and a
foreign country that is effective when signed by the president and
the head of the foreign nation
1. Can be used for any purpose
2. Executive agreements prevail over conflicting state laws,
but never over conflicting federal laws or the Constitution
iii. President has broad powers as Commander-in-Chief to use
American troops in foreign countries
TREATIES AND EXECUTIVE AGREEMENTS
Is
Senate
approva
l
require
d?

Conflicts
with
State
Law

Treaties

YES

Treaty
controls

Executiv

NO

Executive
2

Conflicts
with
Federal
Statute
Whicheve
r was
adopted
last in
time
controls
Federal

Conflicts
with
Constitut
ion

Constituti
on
controls
Constituti

CRIMINAL PROCEDURE
e
Agreem
ents

Agreeme
nt
controls

statute
controls

on
controls

b. Domestic affairs
i. Appointment Power
1. The President appoints ambassadors, federal judges and
officers of the US
2. Congress may vest the appointment of inferior officers in
the President, the heads of departments, or the lower
federal courts [Senate must confirm]
3. Congress may not give itself or its officers the appointment
power
ii. Removal Power
1. Unless removal is limited by statute, the President may fire
any executive branch office
2. For Congress to limit removal:
a. It must be an office where independence from the
President is desirable AND
b. Congress cannot prohibit removal, it can limit
removal to where there is good cause
iii. Impeachment and removal
1. The President, VP, federal judges, and officers of the US
can be impeached and removed from the office for treason,
bribery, or for high crimes and misdemeanors
a. Impeachment doesnt remove a person from office
b. Impeachment by the House of Reps requires a
majority vote; conviction in the Senate requires a
2/3 vote
iv. President has executive privilege for presidential papers and
conversations, but such privilege must yield to other important
government interests
6. Dormant Commerce Clause (Note: FederalCommerce Clause; State/Local
DCC)
a. Definitions
i. DCC (negative implications of the commerce clause)state laws
cannot place undue burden on interstate commerce
ii. PIC of Article IVNo state may deprive other states the privileges
and immunities afforded to its own citizens
iii. PIC of 14th Amendmentalways wrong on the exam unless it
involves fundamental right to travel
b. Steps in analysis:
i. Does the state law discriminate against out of staters?
ii. If NO (the law treats them alike)
1. The PIC of Art. IV doesnt apply

CRIMINAL PROCEDURE
2. If the law burden interstate commerce, it violates the DCC
if its burdens exceeds its benefits
iii. If YES (the law treats out of staters differently/discriminates)
1. If the law burdens interstate commerce, it violates the DCC
unless it is necessary to achieve an important government
purpose
a. Exception: Congressional approval
b. Exception: Market Participant Exception a state
or local government may prefer its own citizens in
receiving benefits from government programs or in
dealing with government-owned benefits
2. If the law discriminates against out-of-staters with regard to
their ability to earn their livelihood, it violates the PIC of
Art. IV unless it is necessary to achieve an important
government purpose
a. The law must discriminate against out-of-staters
b. The discrimination must be with regard to civil
liberties or important economic activities
c. Corporations and aliens cannot use the PIC
d. The discrimination must be necessary to achieve an
important government purpose
7. State Taxation of Interstate Commerce
a. States may not use their tax systems to help in-state businesses
b. A state may only tax activities if theres a substantial nexus to the state
c. State taxation of interstate businesses must be fairly apportioned
8. The Structure of the Constitutions Protection of Individual Liberties
a. Is There Government Action?
i. Constitution applies only to government action. Private conduct
need not comply w/ the Constitution
ii. Exceptions situations where private conduct must comply w/ the
Constitution:
1. Public function exceptionConstitution applies if a private
entity is performing a task traditionally, exclusively done
by the government
2. Entanglement exceptionConstitution applies if the
government affirmatively authorizes, encourages, or
facilitates unconstitutional activities. Key examples:
a. Courts cant enforce racially restrictive covenants
b. There is state action when the government leases
premises to a restaurant that racially discriminates
c. There is state action when a state provides books to
school thats racially discriminate
d. There is no state action when a private school that is
over 99% funded by the government fires a teacher
b/c of her speech [subsidy is insufficient for state
action]

CRIMINAL PROCEDURE
e. There is no state action when the NCAA orders the
suspension of a basketball coach at a state
university
f. There is a state action when a private entity
regulates interscholastic sports within a state
g. There is not state action when a private club with a
liquor license from the state racially discriminates
b. Bill of Rights
i. Levels of Scrutiny
1. Strict scrutinynecessary to achieve compelling
government purpose (government has burden)
2. Intermediate scrutinysubstantially related to an important
government purpose (government has burden)
3. Rational basisrationally related to legitimate public
purposed (challenger has burden)
9. Individual Rights
a. Definitions:
i. Procedural DPprocedure government must follow when deprive
life, liberty, property
ii. Substantive DPadequate reason for depriving ?
b. Procedural DP
i. Has there been a deprivation of life, liberty or property?
1. Deprivation of libertyoccurs if there is the loss of a
significant freedom provided by the Constitution or a
statute
2. Deprivation of propertyoccurs if there is an entitlement
and that entitlement is not fulfilled
3. Government negligent isnt sufficient for a deprivation of
DP. Generally, there must be intentional government action
or at least reckless action for liability to exist. However, in
emergency situations, the government is liable under DP
only if its conduct shocks the conscience
4. Generally, the governments failure to protect people from
privately inflicted harms doesnt deny due process
ii. What procedures are required?
1. The test: Balance
a. The importance of the interest to the individual
b. The ability of additional procedures to increase the
accuracy of fact-finding
c. The governments interests
c. Economic Liberties
i. Only a rational basis test is used for laws affecting economic
rights.
ii. Takings Clause the government may take private property for
public use if it provides just compensation
1. Is there a taking?

CRIMINAL PROCEDURE
a. Possessory taking Government confiscation or
physical occupation of property is always a taking
b. Regulatory taking Government regulation is a
taking if it leave no reasonable economically viable
use of the property
2. Is it for public use?
3. Is just compensation paid?
Government conditions on development of property must be
justified by a benefit that is roughly proportionate to the burden
imposed; otherwise it is a taking
A property owner may bring a takings challenge to regulations
that existed at the time the property was acquired
Temporarily denying an owner use of property is not a taking so
long as the governments actions are reasonable
iii. Contracts Clauseno state shall impair the obligations of contracts
1. Applies only to state or local interference w/ existing
contract (not federal government)
2. State or local interference with private contracts must meet
intermediate scrutiny
a. Does the legislation substantially impair a partys
rights under an existing contract?
b. If so, is the law a reasonably and narrowly tailored
means of promoting an important and legitimate
public interest?
3. State or local interference w/ government contracts must
meet strict scrutiny
4. The ex post facto clause doesnt apply in civil cases.
Retroactive civil liability only need meet a rational basis
test (A bill of attainder is a law that directs the punishment
of a specific person(s) without a trial)
d. Privacy is a fundamental right protected under Substantive DP
i. Right to marry; right to procreate; right to custody of ones
children; right to keep family together; right to control the
upbringing of ones children the right to purchase and use
contraceptives; right to abortion
ii. Right to travel
1. Fundamental right PIC + Equal Protection Clause
2. Laws that prevent people from moving into a state must
meet strict scrutiny
3. Durational residency requirements must meet strict scrutiny
4. Restrictions on foreign travel need meet only the rational
basis test
iii. Right to vote
1. Laws that deny some citizens the right to vote must meet
strict scrutiny, but regulations of the electoral process to
prevent fraud only need be on balance desirable
6

CRIMINAL PROCEDURE
2. One-person One-vote mist be met for all state and local
elections
3. At-large elections (multiple votes?) are constitutional
unless there is proof of a discriminatory purposes
4. The use of race in drawing election district lines must meet
strict scrutiny
5. Counting uncounted votes w/o standard in a presidential
election violates equal protection
10. Equal Protection
a. Approach:
i. What is the classification?
ii. What level of scrutiny should be applied?
iii. Does this law meet the level of scrutiny?
b. Constitutional Provisions
i. EPC of 14th Amendment applies only to state and local
governments (not federal government)
ii. Equal protection is applied to federal government through the due
process clause of the 5th Amendment
c. Classifications based on Race and National Origin
i. Strict Scrutiny is used
ii. How is the existence of a racial classification proven?
1. The classification exists on the face of the law
2. If the law is facially neutral, proving a racial classification
requires demonstrating both discriminatory impact and
discriminatory intent
iii. How should racial classifications benefitting minorities be treated?
1. Strict scrutiny is applied
2. Numerical set-asides require clear proof of past
discrimination
3. Educational institutions may use race as 1 factor in
admissions decisions to help minorities. However,
educational institutions may not add points to applicants
admissions scores based on race
4. Public school systems may not use race as a factor in
assigning students to schools unless strict scrutiny is met
d. Gender Classifications
i. Intermediate scrutiny is used
ii. How is the existence of gender classification proven?
1. The classification exists on the face of the law
2. If the law is facially neutral, proving a gender classification
requires demonstrating both discriminatory impact and
discriminatory intent
iii. How should gender classifications benefitting women be treated?
1. Gender classifications that are designed to remedy past
discrimination and differences in opportunity will be
allowed

CRIMINAL PROCEDURE
e. Alienage Classifications
i. Generally, strict scrutiny is used
ii. Rational basis test is used for:
1. Alienage classifications that concern self-government and
the democratic process
2. Congressional discrimination against aliens
iii. Intermediate scrutiny is used for:
1. Discrimination against undocumented alien children
f. Discrimination against non-marital children
i. Intermediate scrutiny is used
ii. Laws that deny a benefit to all non-marital children, but grant it to
all marital children are unconstitutional
g. Rational basis review is used for all other types of discrimination:
i. Age
ii. Disability
iii. Wealth
iv. Economic
v. Sexual orientation
11. First Amendment

CRIMINAL PROCEDURE
FIRST ISSUEAPPLICABLE LAW
1) Common Law
2) Article 2 of the UCC applies to K that are primarily for the sale of goods
A. Factors to determine whether Art. 2 applies:
1. Type of transactionsale; and
2. Subject matter of transactiongoods, i.e., tangible, personal property
3) Simple Hypotheticals
A. Real estate CL (contracts to buy a house)
B. Services contracts CL
C. Sale of goods UCC
4) Mixed Deals
A. General rule all or nothing/more important part
5) SECOND ISSUEFORMATION OF A CONTRACT
A. Definition of a Contract A contract is an agreement that is legally enforceable.
Accordingly, look first for an agreement. Second, determine whether the
agreement is legally enforceable
1. In looking for an agreement, watch for info in the question about:
a. The initial communication (offer)
b. What happens after the initial communication (termination of the offer)
c. Who responds and how she responds (acceptance_
B. 1ST Possible Agreement Issue: Is the Initial Communication and Offer?
1. General Test: Manifestation of commitment
a. An offer is a manifestation of an intention of 1 person to contractwords
or conduct showing commitment by 1 person.
b. Basic test is whether a reasonable person in the position of the offeree
would believe that his/her assent creates a contract
2. Specific problems to watch for
a. Content
i. Missing price term in sales K
Sale of real estatecommon lawprice and description required,
not an offer
Sale of goodsArticle 12no price requirement
ii. Vague or ambiguous material terms not an offer under either CL or
UCC
iii. Requirements contracts/output contracts
A contract for the sale of goods can state the quantity of goods to
be delivered under the contracts in terms of the buyers
requirements or sellers output
Requirements or output contracts are not vague or ambiguous
and are valid
b. Context
i. General rules: An ad or price quote is not an offer
ii. Exceptions
An ad can be a unilateral offer if it is in the nature of a reward.

CRIMINAL PROCEDURE

An ad can be an offer if it specifies quantity and expressly

indicates who can accept
Price quote can be an offer if sent in response to an inquiry
ND
C. 2 Possible Agreement Issue: Was the Offer Terminated? (4 Methods)
*Offers generally create the power of acceptance in the person to whom the offer
was made (offeree), creating a contract. However, an offer cannot be accepted if
it has been terminated. An offer that has been terminated is dead
*4 Methods of Termination:
1. Lapse of time time stated or reasonable time
2. Death of a party prior to acceptance
a. General rule: death or incapacity of either party after the offer, but before
acceptance, terminates offer
b. Exception: Irrevocable offers
3. Words of conduct of offeror; i.e., revocation of an offer
a. How an offer is revoked:
i. Later unambiguous statement by offeror to offeree of unwillingness or
inability to contract, or
ii. Later unambiguous conduct by offeror indicating an unwillingness or
inability to contract that offeree is aware of
b. Which offers are irrevocable, i.e., cannot be revoked?
*Know the difference among irrevocable (no possibility), revocable
(possibility), and revoked (actuality). [Generally offers can be freely
revoked by the offeror.] There are 4 situations in which an offer cannot be
revoked:
i. Option K an offer cant be revoked if the offeror has not only made
an offer but also:
Promised to not revoke (or promised to keep the offer open)
AND
This promise is supported by payment or other consideration
(option)
ii. UCC Firm Offer Rule an offer cant be revoked for up to 3 months
if:
Offer to buy or sell goods
Signed, written promise to keep the offer open, and
Party is a merchant (Merchant is GENERALLY a person in
business)
iii. Reliance an offer cant be revoked if there has been:
Reliance, that is
Reasonably foreseeable, and
Detrimental
iv. Unilateral contract the start of performance pursuant to an offer to
enter into a unilateral contract makes the offer irrevocable for a
reasonable time to complete performance
4. Words or conduct of the offereeRejection

CRIMINAL PROCEDURE
*Watch for 1 of the following 3 methods of indirect rejection: 1) Counteroffer;
2) Conditional acceptance, or 3) Additional terms. The first 2 apply to all
contracts; additional terms rule doesnt apply to contracts for the sale of goods
(CL only). Methods of indirect rejection are:
a. Counteroffer
i. Counteroffer generally terminates the offer and creates a new offer.
Thus generally, where a counteroffer has been made there is no
express K unless that counteroffer has itself been accepted.
Counteroffers need to be distinguished from bargaining. Bargaining
doesnt terminate the offer. And counteroffers do not terminate
options
b. Conditional Acceptance
i. A condition acceptance terminates the offer. Look for a response to an
offer with the word accept followed by if, only if. provided,
so long as, but, or on condition that
ii. CLrejects and becomes a counteroffer that can be accepted by
conduct
iii. UCCrejects
c. Additional terms to a CL contract: Mirror Image Rule
i. Under CL, a response to an offer that adds new terms if treated like a
counteroffer rather than an acceptance
d. Additional or different terms not a rejection under UCC (2-207):
Seasonable expression of acceptance: A fact pattern in which there is 1)
offer to buy or sell goods and 2) a response with additional or different
terms raises 2 separate questions:
i. Is there a contract?
Under the UCC, a response to an offer that adds additional or
different terms, but doesnt make the new terms a condition of
acceptance, is generally treated as an acceptancea seasonable
expression of acceptance. Whether the parties are merchants is
irrelevant in answering this first question
ii. Is the additional term a part of the contract?
The additional term is a part of the K only if: 1) both parties are
merchants AND 2) additional term is not material [fact question]
AND 3) the additional term is not objected to by original offeror
D. 3RD Possible Agreement Issue: Acceptance of An Offer
*Look at the offer for info about how the offer was accepted and who accepted
1. Method of acceptance:
a. The offeror can control the method of acceptance, the time that a distance
acceptance is effective, or whether the offeree must give notice that it has
accepted by performance
b. On most MBE questionsthe offer is silent as to the method of
acceptance, time of acceptance, or notice of acceptance. Instead, MBE
questions on acceptance usually involve 1 of the following 3 fact patterns:
i. Offeree starts to perform

CRIMINAL PROCEDURE

Watch for fact patterns w/ 3 characteristics: 1) verbal offer, 2) no

words in response, and 3) start of performance
General rule: start of performance is acceptance. Starting to
perform is treated as an implied promise to perform and so there is
a bilateral contract.
Exceptionstart of performance isnt acceptance of unilateral
K offers. Completion of performance is required. Again, start
of performance is an implied promise to perform. Offers to
enter into unilateral contracts cant be accepted by a promise.
If offer requires performance for acceptance, then
performance for purposes of acceptance of that offer means
completion of performance.
ii. Distance and delay in communications
The offeror and the offeree are at different places and there are
delays in receipt of communications. 4 rules:
1) All communications other than acceptance are effective
only when received
2) Acceptance is generally effective when mailed (i.e., the
mailbox rule)
3) If a rejection is mailed before an acceptance is mailed, then
neither is effective until received
4) You cant use the mailbox rule to meet an option deadline
iii. The seller of goods sends the wrong goods
General ruleacceptance and breach
Accommodation (i.e., explanation) exception: counteroffer and no
breach
2. Person who accepts:
a. Generally, and offer can be accepted only by:
i. 1) A person who knows about the offer at the time she accepts; 2) Who
is the person to whom it was made
ii. Offers cannot be assigned; options can;t be assigned unless the option
otherwise provides
E. Formation2ND View/Overview
*Remember that a K is more than an agreement. Some agreement are not legally
enforceable. Legal reasons for not enforcing an agreement include: 1) Lack of
consideration of a consideration substitute for the promise at issue; 2) Lack of
capacity of the person who made that promise; 3) Statute of Frauds; 4) Existing
laws that prohibit the performance of the agreement; 5) Public policy; 6)
Misrepresentations; 7) Nondisclosure; 8) Duress; 9) Unconscionability 10)
Ambiguity in words of agreement; 11) Mistakes at the time of the agreement as to
the material facts affecting the agreement
1. Reason for Not Enforcing Agreement: Lack of Consideration OR
Consideration Substitute
2.
F. Gh

CRIMINAL PROCEDURE
THIRD ISSUE: TERMS OF THE CONTRACT
1) Words in the Written K
2) Words of the Parties Not in the Written Contract and the Parol Evidence Rule
A. Triggering facts:
1. Final written K
2. Earlier words of 1 or both parties
B. Overview of parol evidence rule:
1. Policythe underlying premise is that the final written version of a deal is
more reliable than anything said or written earlier
2. MBE approach= for purposes of the MBE, the parol evidence rule is like an
evidence rule in the sense that 1) the issue is whether evidence is admissible
and 2) admissibility often depends on the purpose for which the evidence is to
be introduced
3. Vocabulary:
a. Integrationwritten agreement that court finds is the final agreement,
triggers the parol evidence rule
b. Partial integrationwritten and final, but not complete
c. Complete integrationwritten and final and complete
d. Merger clausecontract clause such as This is the complete and final
agreement
e. Parol evidence
i. Words of party/parties
ii. Before integration, i.e., before agreement was put in written form
iii. Oral or written
4. 5 Parol Evidence Fact Patterns
a. Changing/contradicting terms in the written deal
i. Regardless of whether the writing is a complete or partial integration,
evidence of earlier agreements is not admissible for the purpose of
contradicting the terms in the written contract
ii. General rule cannot use parol evidence to change/contradict
b. Mistake in integration, i.e., clerical mistake
i. A court may, however, consider evidence of such terms for the limited
purpose of determining whether there was a mistake in integration, i.e.,
a mistake in reducing the agreement to writing
c. Defenses, i.e., getting out of a written deal
i. And, regardless of whether the writing is complete or partial
integration, the parol evidence rule doesnt prevent a court from
admitting evidence of earlier words of the parties for the limited
purpose of determining whether there is a defense to the enforcement
of the agreement, such as misrepresentation, fraud, or duress
d. Ambiguity, i.e., explaining term in the written deal:
i. Regardless of whether the writing is a complete or partial integration,
the parol evidence rule doesnt prevent a court from admitting
evidence of earlier agreements to resolve ambiguities in the written K
e. Adding to the written deal:

CRIMINAL PROCEDURE
i. The parol evidence rule prevents a court from admitting evidence of
earlier agreements as a source of consistent, additional terms unless
the court finds:
1) that the written agreement was only a partial integration or
2) that the additional terms would ordinarily be in a separate
agreement
3) Conduct
A. Conduct can also be a source of K terms
B. Forms of conductcourts look at conduct to explain words in K or to fill gaps in
contracts
1. Courts first look at course of performance (same people, same K) then:
2. Course of dealing (same people, different but similar K)
3. Custom and usage (different but similar people, different but similar K)
4) UCC for Terms in Sales of Goods Contracts (default terms)
A. Delivery obligations of seller of goods if delivery by common carrier:
1. Shipment contracts
2. Destination contracts
3. Determining whether K is a shipment of destination K:
a. Most K w/ delivery obligations are shipment Ks
b. Watch for FOB (city) as source for determining whether the K is shipment
or destination FOB followed by city where seller is or where goods are
means shipment K; FOB followed by any other city means destination K
B. Risk of Loss
C. Warranties of Quality
1. Express
2. Implied warranty of merchantability
3. Implied warranty of fitness for a particular purpose
D. Limitations on Warranty Liability
1. Statute of limitations
2. Privity
3. Buyers examination of the goods
4. Disclaimer
5. Limitation of Remedies
FOURTH ISSUE: PERFORMANCE OF ARTICLE 2 CONTRACTS (6
CONCEPTS)
1) Perfect Tender
2) Rejection of the Goods
3) Cure
4) Installment Contracts
5) Acceptance of the Goods
6) Revocation of Acceptance of the Goods
A. Effect of revocation of acceptance:
B. Requirements for revocation of acceptance:
C. Comparison of rejection of the goods and revocation of the goods (2 different
ways of buyers returning the goods and recovering any payment):

CRIMINAL PROCEDURE

1.

Timing

2.

Standard

3.

Other
Requirements

4.

Consequences

Rejection
Revocation
Early, before
Later, after the
acceptance
acceptance
Generally,
Substantial
perfect tender
impairment
1) Seasonably notify seller
2) Hold the goods for seller
3) Follow reasonable seller
instructions
1) Goods back to seller
2) No buyer payment obligation

FIFTH ISSUE: REMEDIES FOR AN UNEXCUSED NONPERFORMANCE

1) Nonmonetary Remedies (In Rem)
A. Specific performance/Injunction
B. Sellers reclamation from an insolvent buyer of goods
C. Buyers recovery of identified, paid for goods from a seller who becomes
insolvent within 10 days
2) Money Damages for Breach of K: General Concepts
A. Overview
B. Measure of Damages
C. Additions and Limitations
1. Plus incidental damages
2. Plus foreseeable consequential (special) damages
3. Less avoidable damages
4. Less damages that cannot be established w/ reasonable certainty
D. Contract provisions regarding damages, i.e., liquidated damages
3) Gf
SIXTH ISSUE: EXCUSE OF NONPERFORMANCE OF CONTRACT BECAUSE
OF SOMETHING THAT HAPPENED AFTER CONTRACT WAS MADE
1) Overview
2) Excuse of Performance Because of the Other Guys Nonperformance
3) Excuse of Performance Because of the Other Guys Saying It Is Not Going To
Perform (Anticipatory Repudiation)
4) Excuse Because of Insecurity About Whether the Other Guy Is Going To Perform
5) Excuse Because of Improper Performance
6) Excuse Because of Nonoccurrence Of An Express Condition
7) Excuse By Reason Of A Later Contract
8) Excuse Of Performance By Reason Of A Later, Unanticipated Event
SEVENTH ISSUE: THIRD PARTY PROBLEMS
1) A Person Trying to Enforce A Contract She Did Not Make: Third-Party Beneficiary

CRIMINAL PROCEDURE
PRELIMINARY MATTERS
1) Jurisdiction
A. A crime may be prosecuted in any state where:
1. An act that was part of the crime took place; or
2. The result took place
2) Burden of Proof
A. Elements of the Crime
1. in a criminal case, the prosecution must prove each element of the crime
beyond a reasonable doubt
3) Classification of Crimes
A. Felony
1. A crime that may be punished by death or imprisonment for more than 1 year
B. Misdemeanor
1. A crime punishable by a fine and/or imprisonment for no more than 1 year
THE ESSENTIAL ELEMENTS OF CRIME
1) The Act Requirement
A. Physical Acts (Commissions)
B. Omissions
2) Mental States
A. CL Mental State there are 4 CL mental states:
1. Specific Intent
a. Definitionwhen the crime requires not just the desire to do the act, but
also the desire to achieve a specific result
b. 11 Specific Intent Crimes:
i. Crimes Against the Person
Assault
1st Degree Premeditated Murder (statutory crime)
ii. Property Crimes
Larceny
Embezzlement
False Pretenses
Robbery
Forgery
Burglary
iii. Inchoate Crimes
Solicitation
Conspiracy
Attempt
c. Defenses
i. 2 Defenses that are available ONLY for specific intent crimes:
Voluntary intoxication
An unreasonable mistake of fact
2. Malice

CRIMINAL PROCEDURE
a. Definitionwhen a defendant acts intentionally or with reckless disregard
of an obvious or known risk
b. CL Malice Crimes:
i. Murder
ii. Arson
3. General Intent
a. Definitionthe defendant need only be generally aware of the factors
constituting the crime; he need not intend a specific result
i. Note: The jury can usually infer the general intent simply from the
doing of the act
b. Examples of General Intent Crimes:
i. Battery
ii. Forceable Rape
iii. False Imprisonment
iv. Kidnapping
(All 4 are crimes against the person)
4. Strict Liability
a. Definitionwhen the crime requires simply doing the act; no mental state
is needed
b. 2 Types of Strict Liability Crimes:
i. Public Welfare offensesregulatory offenses that implicate public
health of safety and typically carry small penalties
Examples (italicized elements are strict liability): transferring
unregistered firearms; selling contaminated food; shipping
adulterated drugs in interstate commerce
ii. Statutory Rape having sex w/ someone who is under the age of
consent
c. MPC Mental States
i. Purpose
ii. Knowledge
iii. Recklessness
iv. Negligence
v. Strict Liability
d.
INCHOATE OFFENSES
1) Solicitation
A. DefinitionAsking someone to commit a crime, with the intent that the crime be
committed
B. Mental state specific intent
C. Completion is unnecessary: the crime is in the asking (Note: it doesnt matter
whether the other person agrees or whether the crime is actually committed)
2) Conspiracy
A. Definitionan agreement between 2 or more people to commit a crime, plus an
overt act in furtherance of the crime

CRIMINAL PROCEDURE
B. Overt Actany act, even if merely preparatory, performed by any of the coconspirators (traditionally, the CL didnt require an overt act, but most states now
do
C. Mental state the specific intent to do 2 things:
1. Enter into an agreement
a. This can be proved by conductthis is, a concert of action towards a
common goal
2. To accomplish the objectives of the conspiracy
D. Completion unnecessary: the essence of the crime of conspiracy is the
agreement; completion of the conspirational objective is unnecessary for
conviction
E. Can you have a One-Person Conspiracy?
1. CL RULE NO
a. The Bilateral Approachthere must be at least 2 guilty minds, both of
whom actually agree to accomplish the conspiracys objectives
b. Related Ruleif all other parties to the agreement are acquitted, the last
remaining defendant cant be convicted
2. MPC RULE YES
a. Under the MPCs unilateral approach, a defendant may be guilty of
conspiracy even if the other parties are acquitted or were just pretending to
agree
F. Wharton Rule
1. When 2 or more people are necessary for the commission of the substantive
offense, there is not conspiracy unless more parties participate in the
agreement than are necessary for the crime
G. Vicarious Pinkerton Liability
1. In addition to conspiracy, a defendant will be liable for other crimes
committed by his co-conspirators, so long as those crimes:
a. 1) Were committed in furtherance of the conspiracys objective, AND
b. 2) Were foreseeable
H. Impossibility
1. Impossibility is never a defense to a charge of conspiracy!
3) Attempt
A. The Act
1. General Requirementunlike conspiracy, attempt requires an overt act
beyond mere preparation
2. CL Proximity Test (strict): Conduct that gets dangerously close to the
commission of the crime
3. MPC/Majority Substantial Step Test (generous): Conduct that constitutes a
substantial step towards the commission of the crime, provided that conduct
strongly corroborates the actors criminal purpose
B. Mental State
1. Ruleattempt requires the specific intent to commit the underlying crime

CRIMINAL PROCEDURE
2. Unintentional Crimesyou cant attempt unintentional crimes, since you
cant intend to do something unintentional. Practically speaking, this means
that there are no attempt versions of:
a. Recklessness crimes
b. Negligent crimes
c. Felony murder
C. Impossibility
1. Factual Impossibility
a. DefinitionAlthough the D intends to commit the underlying crime and
engages in conduct consistent with that intend, some physical or factual
condition unknown to the defendant prevents the underlying crime from
taking place
b. RuleFactual impossibility is not a defense to attempt
2. Legal Impossibility
a. Definitionalthough the defendant intends to commit the underlying
crime and engages in conduct consistent with that intent, some legal
circumstance of status unknown to the defendant prevents the successful
completion of the underlying crime
b. RuleLegal impossibility IS a defense to attempt
4) Inchoate Offense Doctrines
A. Withdrawal/Renunciation/AbandonmentWhat happens when a solicitor, coconspirator, or attempter changes his mind?
1. General RuleWithdrawal is NOT a defense (but it is for accomplice
liability)
a. Exception: Once D withdraws from a conspiracy he will no longer be
vicariously liable for crimes committed by his co-conspirators after he left
the conspiracy
b. However, D is still guilty of conspiracy and of all foreseeable crimes
committed by co-conspirators prior to his withdrawal
2. Merger Rules for Inchoate Offenses
a. Solicitation and attempt merge with the completed crime
b. Conspiracy does not merge!!
DEFENSES
1) Capacity Defenses
A. Insanity
1. 1st requirement= D must have a mental disease or defect
2. 3 most common tests used to gauge whether the mental disease or defect
renders D legally insane:
a. MNaghten Test (majority testpurely cognitive): D must prove that he
either:
i. Didnt know his conduct was wrong, or
ii. Didnt understand the nature of his conduct
b. Irresistible Impulse Test (volitional test, sometimes combined with
MNaghten): If D either:
i. Was unable to control his actions, or

CRIMINAL PROCEDURE
ii. Was unable to conform his conduct to the law
c. MPC Test (only used in 25% of statescognitive and volitional): If the D
lacked the substantial capacity to either:
i. Appreciate the criminality of his conduct, or
ii. Conform his conduct to the requirements of law
3. Distinguished from Incompetency:
a. Insanity:
i. Issue is whether the D was insane at the time of the crime. If he was, D
isnt guilty by reason of insanity
b. Incompetency
i. Issue is whether, at the time of the trial, the D cant either:
Understand the nature of the proceedings against him; or
Assist his lawyer in the preparation of his defense
ii. If either one of the above ^ is established, trial is postponed until the D
regains his competency
B. Voluntary Intoxication (self-induced)*
1. Can be a defense to SPECIFIC INTENT CRIMES
2. It CANNOT be a defense to malice, general intent, or strict liability crimes
3. Defense of intoxication generally requires such severe prostration of the
faculties that the D cannot form the requisite specific intent
C. InfancyCL Rule of Sevens
1. If, at the time of the crime, Ds age is less than 7, prosecution is not allowed
2. If, at the time of the crime, Ds age is less than 14, there is a rebuttable
presumption against prosecution
3. If, at the time of the crime, the Ds age is 14 or older, prosecution is allowed
2) Other Defenses
A. Mistake
1. Mistake of Fact
a. CL Approach: Whether a Ds mistake of fact will be a defense depends on:
i. The mental state for the crime, and
ii. Whether the mistake is reasonable or unreasonable
b. Specific Intent crimes any mistake of fact (even an unreasonable one)
will be a defense
c. Malice or general intent crimes only a reasonable mistake of fact will
be a defense
d. Strict liability mistake of fact is never a defense
e. Summary:
i. A reasonable mistake of fact will be a defense to any crime, except
strict liability crimes
ii. An unreasonable mistake of fact will be a defense only to specific
intent crimes
2. Mistake of Law
a. CL Rule: Mistake of law is generally NOT a defense
i. Exception: If the statute specifically makes knowledge of the law an
element of the crime (e.g., selling phony Rolex watches knowing it is
unlawful to do so)
5

CRIMINAL PROCEDURE
B. Self-Defense (Justification)
1. Rule for Use of Nondeadly Force
a. Ex: shoves and pushes
b. Rule A D may use nondeadly force in self-defense if it is:
i. Reasonably necessary
ii. To protect against an immediate use
iii. Of unlawful force against him
2. Rule for Use of Deadly Force
a. Ex: guns and knives
b. Rule A D may use deadly force in self-defense if he is
i. Facing an imminent threat of death or serious bodily injury
c. 2 complications for the use of deadly force:
i. The Initial Aggressor Rule
RuleA D may not use deadly force if he is the initial aggressor
that is, the person who started the fight. BUT the initial aggressor
can regain his right to use deadly force in self-defense if:
He withdraws from the fight and communicates that
withdrawal to the other person, or
The victim suddenly escalates a nondeadly fight into a deadly
one
ii. The Retreat Rule
RuleIn some states, a D is required to retreat before using deadly
force in self-defenses
Majority Rule Retreat is NOT required
Minority Rule Retreat is required, unless:
a. D cannot retreat in complete safety, or
b. D is in his home (the castle exception)
3. Reasonableness and Mistakewhat happens if D is mistaken about the need
to use unlawful force in self-defense?
a. Reasonable mistake full defense
b. Unreasonable mistake
i. Majority RuleNo defense at all
ii. Minority/ MPC RuleMitigate but not exonerate
Imperfect Self-Defensean unreasonable belief in the need to
use deadly force in self-defense will mitigate murder to voluntary
manslaughter
4. Use of Force to Prevent a Crime
a. Nondeadly force may be used, if reasonably necessary, to prevent any
serious breach of the peace
b. Deadly force may only be used to prevent a felony risking human life
5. Defense of Others
a. A D may use force and deadly force to protect others just the same as he
could to defend himself
6. Defense of Property
a. General Rule deadly force may not be used to defend property

CRIMINAL PROCEDURE
b. Dwellingsand occupant may use deadly force insider her dwelling
when:
i. An intruder has gained an entry in a tumultuous manner; and
ii. The occupant reasonably believes that the use of deadly force is
necessary to prevent a personal attack on herself or someone else in
the dwelling
7. Use of Deadly Force by Law Enforcement
a. An officer may use deadly force only when doing so is reasonable under
the circumstances
C. Necessity (Choice of Evils)
1. Rule It is a defense to criminal conduct if the D reasonably believes that the
conduct was necessary to prevent a greater harm
2. Limitationsdefense of necessity is unavailable if:
a. D causes the death of another person to protect property; or
b. D is at fault in creating a situation that creates a choice of evils
D. Duress
1. Rule It is a defense if the D was coerced to commit a crime b/c of a threat,
from another person, of imminent death or serious bodily injury to himself or
a close family member
2. Limitationduress cant be a defense to homicide
E. Entrapment
1. Rule if the government unfairly tempted the D to commit the crime, he may
claim entrapment. This very narrow defense works only if:
a. The criminal design originated with the government, and
b. The defendant was not predisposed to commit the crime

CRIMINAL PROCEDURE
SEARCH AND SEIZURE OVERVIEW4 GLOBAL ISSUES:
1) Whether a search or seizure is governed by the 4th Amendment
2) Whether a search or seizure is conducted with a warrant satisfies 4th Amendment
Requirements
3) Whether a search or seizure conducted without a warrant satisfies the 4th Amendment
requirements
4) The extent to which evidence obtained through a search and seizure that violates the
4th Amendment is nonetheless admissible in court
SEARCH AND SEIZUREISSUE 1
Threshold question: Is the search or seizure governed by the 4th Amendment?
1) For the 4th Amendment to apply, there must be an affirmative answer to 4 key
questions:
A. Was the search or seizure executed by a government agent?
B. Did the search or seizure invade an area protect by the 4th Amendment?
C. Did the government agent either:
1. Physically intrude on a protected area to obtain information? or
2. Violate an individuals reasonably expectation of privacy in a protected area
or item?
D. Did the individual subjected to the search or seizure have standing to challenge
the government agents conduct?
2) Question 1Was the search or seizure executed by a government agent?
A. 2 categories of government agents are most important for the MBE:
1. Publicly paid police, on or off duty;
2. Private citizens, if (and only if) they are acting at the direction of the police
B. Additional categories of potential government agents (less likely to see on MBE)
1. Private security guards, but only if they are deputized with the power to arrest
a. Ex: campus security guards at public universities
2. Public school administrators, e.g., principals, vice principals
C. If the search/seizure was conducted by someone who falls into one of these 2
categories, move on to Question 2
3) Question 2Did the search or seizure invade an area protect by the 4th Amendment?
A. 4th Amendment expressly protects individuals from unreasonable searches and
seizures of their:
1. Persons (i.e., bodies)
2. Houses (including hotel rooms)
3. Papers (e.g., personal correspondence)
4. Effects (e.g., purses, backpacks, cars)
B. The protection of houses includes the curtilage, which is an area of domestic
use immediately surrounding the house
1. Ex: back yard enclosed by fence; front porch
C. Unprotected items
1. There are certain categories of items that are sufficiently public in nature
that they carry NO reasonable expectation of privacy, even if they are search
or seized by government agents:

CRIMINAL PROCEDURE
2. Mneumonic: Patty Achieved A Glorious Victory Over Her Opponents
a. Paint scrapings on the outside of your car
b. Account records held by a bank
c. Airspace: anything that can be seen below while flying in public airspae
d. Garbage left at the curb for collection
e. Vorce (the sound of your voice)
f. Odors (ex: those that emanate from your car or your luggage)
g. Handwriting (the style of your handwriting)
h. Open fields: anything that can be seen in or across the open fields
4) Question 3Did the government agent either (a) physically intrude on a protected
area to obtain information; or (b) violate an individuals reasonably expectation of
privacy in a protected area or item?
A. 2 ways in which searches and seizures by government agents can implicate an
individuals 4th amendment rights:
1. The agent physical intruded on a constitutionally protected area in order to
obtain information (ex: putting GPS on vehicle); or
2. The agents search or seizure of a constitutionally protected area violated an
individuals reasonable expectation of privacy
B.
5) Question 4Did the individual subjected to the search or seizure have standing to
challenge the government agents conduct?