property law: feb 25 2010 class notes.

future interests continued.

future interests exist now. they are invested in a grantee and have a remainder vested in another party.

defeasible fees and interests that follow them.
future interests as reversion (usually is default, if vested interest doesn't equal 100% of grantor's interest)

vested remainder: a remainder can be vested and yet subject to change.
three types:
- indefeasibly vested (cannot be destroyed or changed) - is certain to become possessory; no future event can dilute it
- a remainder that is vested subject to open (subject to partial divestment) is a remainder given to a class which may be enlarged by future events, diluting the share of remaindermen in exsistence at the time of the grant
          example: to A for life, then to A's children and their heirs, when A already has one child and si
          still alive
- remainder vested subject to complete divestment (subject to complete defeasance in NYS) is created in an ascertained person and is not contingent on any furture event in order to become possessory, however some other future event could cut off the remaindermen's right to possession.

comparing contingent remainders with vested remainders subject to complete divestment:
- whether a remainder is contingent...
if we're trying to distinguish, we must look at the language of the grant (see casebook notes). this is all dependent on the placement of the language.

rules of thumb:
- if the conditional language is part of the clause describing the remainder, the remainder is contingent (NYS: subject to condition precedent)
          example: to A for life, then to B and her heirs if B survives A, otherwise to C and his heirs.

- if the conditional language follows the desription of the remainder as a separate clause, the remainder is vested subject to complete divestment (in NYS: vested subject to complete defeasance).

why does any of this matter? rule against perpetuties (which we won't study here)

problems.
p.230, p.1: O conveys to A for life, and in the event of A's death to B and her heirs.
1. chronology
2. language
3. vested or contingent
to A for life = life estate
in the event of A's death to B and her heirs = remainder in FSA (the magic words are "to her heirs")
nb FSA tells us what type of estate will be taken by the grantee

is the remainder vested or contingent? VESTED
  is the remainder given to an ascertained person? YES
  is the remainder based on a conditional? NO
what does "in the event of A's death" mean, how should it be interpreted? it just means the end of the preceding life estate, it's not conditional --->> suplusage language (when interpreting the clause, pretend the language isn't even there)

is there a reversion?
  what was the grantor's interest? FSA
nb - FSA can have future interests that are not guaranteed to occur. if those conditions on which a grantee's FSA hinged never occured, then there would be no transfer and the interest would revert. therefore, the grantor must convey a *vested* estate equivalent to his own.
   has the grantor conveyed a vested estate equivalent to his own?

B then coveys her interest back to O.
what's the effect on A's interest? none - A still has a life estate.
what's the further effect? B's interest passes to O: O has a vested remainder in FSA

p.230, problem 2, I.
O conveys to A for life, then to B for life, then to C and her heirs.
estate and interest are different.
A has a life estate.
B has a remiander for life (life estate in remainder)
is the remainder vested or contingent?
    is the remainder given to an ascertained person?
    is the remainder subject to any condition that might cause it not to become possessory upon termination of the preceding estate? NO, there is nothing required for B to take
     therefore, B's interest is vested
C has a remainder in FSA
is the remainder vested or contingent?
    is the remainder given to an ascertained person?
    is the remainder subject to any condition that might cause it not to become possessory upon termination of the preceding estate? NO, there is nothing required for C to take
is there a reversion?
    what was the grantor's interest?
    has the grantor conveyed a vested estate equivalent to his own?
      therefore, no reversion!

does the fact that B could die before A effect our analysis? NO, because the mechanics of the interests:
- there is a vested remainder for life that is certain that the interest exists.
- when B's interest in the future interest is extinguished, it just simply terminates before becoming possessory. but it doesn't change the actual interest.

problem 2, part II:
O conveys to A for life, then to B for life, then to C and her heirs if C survives A and B.
A has a life estate
B has a vested remainder for life/vested life estate in remainder
C has a remainder in FSA

is the remainder vested or contingent?
    is the remainder given to an ascertained person?
    is the remainder subject to any condition that might cause it not to become possessory upon termination of the preceding estate?YES: in order to take, C must survive both A and B. therefore a contingent remainder in FSA

is there a reversion?
   what was the grantor's interest? FSA
   has the grantor conveyed an estate equivalent to his own? NO - A and B's estates are a life estate (FSA>> life estate>> lease), and C has a contingent remainder in FSA. therefore O must have a reversion
   is the reversion certain to become possessory? NO - C could outlive A and B

problem 3:

O conveys to A and B for their joint lives, then to the survivor in fee simple.
A and B have a joint life estate. when will this estate end?
"joint lives" means "while both are alive" -- the life estate ends upon the death of either A or B, whoever dies first.
the survivor [as between A and B] has a remainder in FSA.
    is the remainder vested or contingent?
      is the remainder given to an ascertained person? do we know who will survive? NO - because we
         do not know whether A will survive B or vice versa
      is the remainder subject to any condition that might cause it not to become possessory upon
         termination of the preceding estate? YES -- if we think of A and B as possible remaindermen,
         each one's right to possession is conditioned on hi surviving the other.
is there a reversion?
   what was the grantor's interest? FSA
   has the grantor conveyed an estate equivalent to his own? NO - the last vested estate is a life estate; the life tenants each have a remainder in FSA but the vested estate is not equivalent to the grantor (and that makes sense because A and B may die simultaneously) therefore O has a reversion in FSA.
   is the reversion certain to become possessory? NO - in fact, it's almost certain to *not* become
   possessory. therefore this is a reversion in FSA subject to complete defeasance

p. 230, problem 4:
A's oldest child, B, is 17. O conveys to A for life, then to A's children who shall reach 21.
O conveys to A for life = life estate
then to A's children = FSA remainder

is the remainder vested or contingent?
    is the remainder given to an ascertained person? YES, at least B
    is the remainder subject to any condition that might cause it not to become possessory upon termination of the preceding estate?YES: in order to take, A's children must have reached 21. we don't know if any of A's children will take.
THEREFORE, THE REMAINDER IS CONTINGENT IN FSA

B subsequently reaches 21.
A's life estate doesn't change.
is the remainder vested or contingent?
    is the remainder given to an ascertained person? YES, at least B

    is the remainder subject to any condition that might cause it not to become possessory upon termination of the preceding estate?YES: in order to take, A's children must have reached 21. we don't know if any of A's children will take.
THEREFORE, B's INTEREST IS NOW A VESTED REMAINDER IN FSA.

B's interest in FSA is now vested, but it still just a remainder interest.
There are three different types of vested remainders - indefeasibly vested, vested subject to open, or vested subject to complete defeasance: which is B's?
indefeasibly vested: NO - A may have other children, and when they reach 21, B's interest could be partially diluted
vested subject to open: YES - B's interest as a remainderman can be diluted by future expansion of the class of remaindermen (because A could have more children)
vested subject to complete defeasance: NO - the remainder is now vested and there is no conditional language to suggest that a conditional future event could take the right away

executory interests:
- an executory interest is any interest in a transferee that cna divest or cut short a prior vested estate. it is uusally created by a conditional language following anothe grant.

examples.
     - O conveys to A and her heirs, but if A dies without issue, then to B
          - A has a fee simple subject to executory limitation
          - B has a shifting executory interest

    - O conveys to A when A graduates from law school.
          - O has a fee simple subject to executory limitation
          - A has a springing executory interest

     - O convesy s to A for life, then to B, but if B marries C, then to D
          - A has a life estate
          - B has a vested remainder in fee simple subject to executory limitation
          - D has a shifting executory interest

an executory interest can also follow a defeasible fee. compare with the possibility of reverter:
     - O conveys to A for so long as A uses the premises for school purposes, then to B
why an executory interest instead of a remainder?
why a shifting executory interest instead of a springing executory interest?

NYS distinctions:
- in NYS there is no such thing as an executory interest; all future interests in transferees are remainders, and they may cut short prior estates.
     examples:
       - in NYS, O conveys to A and her heirs, but if A dies without issue, then to B
         - A has a fee simple subject to complete defeasance
         - B has a contingent remainder in FSA

all future interests are alienable, can be passed inter vivos, ...

p. 238, problem 1(a):
"O conveys to A for life, then to A's children and their heirs, but if at A's death he is not survived by any children, then to B and her heirs." A is alive and has no children.
    - A has a life estate
    - A's children have a remainder in FSA

is the remainder vested or contingent?
    is the remainder given to an ascertained person? NO - at the time of the grant, A has no children.

    is the remainder subject to any condition that might cause it not to become possessory upon termination of the preceding estate?YES: in order for the remaindermen to take, they must exist!
THEREFORE, A'S CHILDREN HAVE A CONTINGENT REMAINDER IN FSA
is B's future interest a remainder or an executory interest?
   - must B's interest divest or cut short a vested estate in order to become possessory? B would not cut short A's interest. B's interest cannot cut short A's children's vested interested because their potential interest is currently a contingent remainder. B does not divest or cut short anyone else's interests
THEREFORE B'S INTEREST IS A REMAINDER IN FSA

is the remainder vested or contingent?
    is the remainder given to an ascertained person? YES - B

    is the remainder subject to any condition that might cause it not to become possessory upon termination of the preceding estate?YES: A may have children which survive him, and therefore B will not take.
THEREFORE B'S INTEREST IS A CONTINGENT REMAINDER IN FSA

is there a reversion?
   what was the grantor's interest? FSA
   has the grantor conveyed an estate equivalent to his own? NO - because A's children and B's interests are contingent remainders
   is the reversion certain to become possessory? NO - A could die and be survived by heirs. B has a remainder in FSA, and if B becomes possessory, then O won't take. 

problem: A subsequently gives birth to twins C&D.
there is no change to A's life estate.
C&D have a vested remainder in FSA
   - is the remainder indefeasibly vested, vested subject to open, or vested suvject to complete divestment?
   - could the remaindermen's interest be completely cut off by future events?
   - what is B's interest? B's interest is no longer a remainder, it is now a springing executory interest.
     B's future interest is executory, and because it must divest someone other than the original grantor, it is a shifting executory interest -->>> just because something was *once* a remainder doesn't mean that it will *always* be a remainder

is there are reversion? the reversion to O is gone.
  what was the grantor's interest? FSA
   has the grantor conveyed an estate equivalent to his own? YES - because A's children have a vested interest and B has an executory interest

   is the reversion certain to become possessory? NO - A could die and be survived by heirs C and/or D. B has an executory interest, and if B becomes possessory, then O won't take.

problem: C dies.
A's life estate does not change.
C's interest passes to his estate.
C's estate and D have a vested remainder in FSA subject to open and to complete divestment.
B has a shifting executory interest in FSA.

problem: A dies.
A's interest is gone. Now the class of remaindermen is closed, and so the vested remainder is no longer open an dis no longer subject to complete divestment.
C's estate and D are possessory of the interest. They now have an FSA.
B's executory interest fails and disappears.

p. 238, problem 1(b):
"O conveys to A for life, then to such of A's children as survive him, but if none of A's children survive him, to B and her heirs." A is alive and has two children, C and D.
A has a life estate
C*D have a contingent remainder in FSA
B has a future interest in FSA
   - is B's future interest a remainder or executory interest?
   - must B's interest divest or cut short
THEREFORE B HAS A REMAINDER IN FSA

is the remainder vested or contingent?
    is the remainder given to an ascertained person? YES - B

    is the remainder subject to any condition that might cause it not to become possessory upon termination of the preceding estate?YES: C and D may survive B, and therefore B will not take.
THEREFORE B'S INTEREST IS A CONTINGENT REMAINDER IN FSA

is there a reversion? (if no equal vestment, then there *must* be a remainder)
   what was the grantor's interest? FSA
   has the grantor conveyed an estate equivalent to his own? NO - because A's children and B's interests are contingent remainders. THEREFORE THERE MUST BE REMAINDER

   is the reversion certain to become possessory? NO - A could die and be survived by heirs. B has a remainder in FSA, and if B becomes possessory, then O won't take.

p. 238, problem 1(c):
O conveys to A for life, then to B and her heirs, but if A is survived at his death by any children, then to such suriviving children and their heirs. A is alive and has two children, C and D.
A has a life estate.
B has a remainder in FSA.
is the remainder vested or contingent?
    is the remainder given to an ascertained person? YES - B

    is the remainder subject to any condition that might cause it not to become possessory upon termination of the preceding estate?NO: C and D may survive B, and therefore B will not take.
THEREFORE B'S INTEREST IS A VESTED REMAINDER IN FSA

   - is the remainder indefeasibly vested, vested subject to open, or vested suvject to complete divestment?
   - could the remaindermen's interest be completely cut off by future events? YES, if A's survived at death by children
   - what is B's interest? B's interest is a vested remainder in FSA subject to complete divestment/complete defeasance
C and D have a future interest
   - is C and D's future interest a remainder or an executory interest?
   - is the remainder indefeasibly vested, vested subject to open, or vested suvject to complete divestment?
   - could the remaindermen's interest be completely cut off by future events?
   - what are C and D's interest? springing executory interest.
is there a reversion? (if no equal vestment, then there *must* be a remainder)

   what was the grantor's interest? FSA
   has the grantor conveyed an estate equivalent to his own? YES - because B has a vested remainder and C and D have an executory interest
   is the reversion certain to become possessory? NO - A could die and be survived by heirs. B has a remainder in FSA, and if B becomes possessory, then O won't take.
THEREFORE NO REVERSION TO O

crim law: feb 24 2010 class notes

mpc 2.02.
purposely
knowingly
recklessly
negligently

nypl 15.05
intentionally
knowingly
recklessly
negligently
strict liability

common law
specific intent
general intent
strict liability

public welfare offenses. there is a presumption element to strict liability.
factors that may overcome the presumption against strict liability:
1. statutory crime not derived from the common law
2. evident legislative policy that would be undermined by a mens rea requirement
3. standard imposed is reasonable
4. penalty is small
5. conviction "does not gravely besmirch"

strict liability public welfare offenses: BIG HARM + little penalty + fair

moral blameworthiness: you're the creator of a hazard, and given the severe harm and your efforts to prevent the harm, it still is ok to punish a person who creates a harm though they might have tried to avoid the harm.

"where there's thomas, there's scalia..."
staples v. us
the question is one of strict liability.
the defendant knows that he is dealing with a dangerous device of a character that placed him "in responsible relation to a public danger."
is the right question is an automatic gun dangerous, or is it that a semi-automatic that is modified to be automatic is dangerous?

the dissent is relying more on the plain text of the statute. the argument is particularly convincing, but the problem is that the penalty is much higher than we consider reasonable for public welfare offenses.

garnett v. state
maryland code, art. 27, s.463:

second degree rape. 

(a) what constitutes - a person is guilty of rape in the second degree if the person engages in vaginal intercourse with another person:

     (1) by force or threat of force against the will and without the consent of the other person; or

     (2) who is mentally defective, mentally incapacitated, or physically hopeless, and the person performing the act knows or should reasonably know the other perosn is mentally defective; or

     (3) who is under 14 yo, and the person performing the act is at least 4 years older than the victim.

(b) penalty - any person violating the provisions of this section is guilty of a felony and upon conviction is subject to imprisionment for a period of not more than 20 years.
there is no mens rea to this statute.

should this be called a public welfare crime?
Harm =
fairness =
penalty = NO; the penalty is 20 years conviction

is there an indication that the legislation wanted this to be strict liability?
the provision for having sex with someone who is helpless (subsection 2), the legislation put in a mental state of the victim and could just as easily have put a mens rea element.
legislative history: the legislation rejected a mens rea version of the statute
silence: the history of statutory rape for hundreds of years has been that there is no mens rea, and so the assumption is that the legislation would have said something to the opposite.

must become very comfortable with nypl art.130, sex offenses (nb: must find the definitions for art. 130 too)
if you're under 17, you can't consent. 
criminal age combinations: victims 11 -16 and defendants 16-17 are guilty of grade A misd. sexual misconduct
victims 14-16 and defendant 16-20 are guilty of grade A misd. sexual misconduct

victims 15-16 and defendant 21+ are guilty of grade E rape-3rd
victims 0-10 and defendant 16+ are guilty of grade B rape-1st
victim 11-12 and defendant 18+ are guilty of grade B rape-1st
victim 13-14 and defendant 18+ are guilty of grade D rape-2nd

do we want a strict liability element to stat. rape? yes - we want the overdeterrence
and we know that they want strict liability because of the stat. language:
15.20(3): notwithstanding the use of the term"knowingly" in any provision of this chapter defining an offense in which the age of a child is an element thereof, knwoledge (of the age) by the defendant (is not needed)

con law: feb 23 2010 class notes

art. IV privileges and immunities. additional article.  
the two prong test to determine if out of state resident is being discriminated against (massey, p. 310 and 316):
1. does the discrimination connect to a reason?
2.

camden: this case is about the right to work. how can art. IV support this: "crucial to interstate harmony". what are examples of this?
- pursuit of job
- alienation
-

preemption.
the most direct is facial/express.
implied preemption: likely to not employ, because assumption is currently that the legislation has crafted laws to say/allow exactly what it comprehensively expects

consent.
is national power exercised?
if YES, is there preemption?
if NO, is there consent?
if YES to consent and/or NO to preemption = state may regulate interstate commerce

is national power exercised?
if NO, does the dormant commerce clause bar?
if NO = the state may regulate interstate commerce
if YES = exclusively national power

youngstown v. sawyer

property law: feb 23 2010 class notes.

how to handle cases and problems.

1. break the problem up chronologically. 
2. break each chronological step according to its legal effects on each party.
     - interpret the language of any grant
     - analyze the effect of any other facts/events on the estate or future interest held by each party
3. formulate the state of title as each chronological step (the "chain of title").

estates in land: defeasible fees
here we have present interest that are limited but not by life of individual but instead by a conditional limitation. there are two types of conditional limits.

fee simple determinable. NYS it's a fee on limitation (nb, you can use either common or NYS names) FSD is made conditional on a durational event. the FSD is created by a condition attached to words of duration.
     - to A, [so long as /until/ while/ during] (insert specific condition)
     * FSD must have a future interest in the grantor, which we call a possibility of reverter in the

        grantor

fee simple subject to condition subsequent (FSCS), in NYS fee on condition
here the words are based on a subsequent condition.
to A, [but if/ provided/ however/ on condition that] (insert specific condition), O may re-enter and re-take possession.
      * FSCS creates a right of entry (ROE: in NYS, the right of reacquisition) (the right to retake
         property given to the grantee in the FCSC, without committing trespass) in the grantor

mahrenholz v. county board of school trustees. 
1. break the case up into a chronology of events.
2. interpret the language of the grant.

- march 1941: m/m hutton convey 1.5 acres to school trustees
the grant language: "to be used for school purpose only; otherwise to revert to Grantors herein"
what interests can be created by this language? either an FSD or FSCS

- july 1941: huttons purport to convey their future interests to the jacmains
neither possibility of reverter or right of entry may be transferred. court says that you can't grant future interest inter vivos. they are not alienable, inheritable or divisable in IL (they are in NYS). huttons retain POR and trustees retain FSCS.

- 1951: mr. hutton dies intestate (without a will)
if it's an FSD, then hutton's interests are inherited by his heirs (mrs. hutton and harry have POR)
if it is an FSCS, then mrs. hutton and harry have ROE

- 1959: jacs purport to convey their future interests to the mahrenholzes
trustees have FSD and mrs. hutton and harry have POR b/c the jacmains have no interest to convey under IL law. if a FSCS then the trustees have FSCS and mrs. hutton and harry have POR b/c the jacmains have no interest to convey. basically, the point is the interest is the same. 

- 1969: mrs. hutton dies
trustees have FSD and harry inherits POR. if a FSCS then the trustees have FSCS and harry inherits full ROE.... that's the rub. 

- may 1973: school ceases to hold classes in building on 1.5 acres
here's where the difference between FSD and FCSC are apparent: in an FSD, POR becomes operational by magic when the holding party stops using the property and becomes a fee simple absolute. if FSCS, the ROE must take affirmative steps to re-claim and re-take the property. harry has not exercised his ROE, and so until he exercises, the trustees still have the present possessory interest in the property conveyed. 

- may 1977: harry conveys all his interest in the 1.5 acres to the mahrenholzes
under FSD, harry has FSA and so he can pass to the mahrenholzes and retain no interest. but under FSCS, harry has a future interest to be exercised in ROE which he may exercise but he may not transfer inter vivos under IL law.

* september 1977: harry disclaims his interest in the 1.5 acres in favor of the school trustees.
if a FSD, harry had no interest to convey anyway and the mahrenholzes have an FSA. but if a FSCS, harry is extinguishing his ROE and the trustees retain the FSA!!

two different results from the same set of facts, dependent on the interpretation of the clause of the grant language.

what kind of language creates a FSD? words of duration, such as "until," "before", etc.
what language is used to create a FSCS? words of condition.

the court interprets the language as a legal assumption on this ambiguous language that the grant is supposed to create a reverter, not a right of entry, that the huttons would have wanted the land to return to them once the school board was no longer utilizing it.

presumptions are often in favor of FSCS. why is this?
defeasible fees create a lot of uncertainty for the court. in fact, in NYS you have to file the defeasible fee in the estate with the court to retain it! transfer of present possessory interest is

mountain brown lodge v. toscano
the grant language: "said property is restricted for the use and benefit of the lodge, only; and in the event the same fails to be used by the lodge or in the event of sale or transfer by the lodge of all or any part of said lot, the same is to revert to the grantors herein, their successors, heirs or assigns."

the lodge has an interest in the land, and we have to figure out what it is...

does the lodge have a restraint on alienation? they argue that the condition should be voided, and they should be left with a FSA.

can this condition be enforced such that it would be FSCS or should it be voided?

how does the court analyze this grant?

1st clause "in the event the same fails to be used by the lodge" - the court interprets this as restriction on use, which is valid
2nd clause "in the event of sale or transfer by the lodge of all or any part of said lot" - the court interprets this as a restraint on alienation, which can't be enforced

is there a basis for treating these clauses differently?

in this case is there a difference between the restriction on use and alienation? 

there's a blurry line between restriction to use and alienation. but the final question of the court is one of degree, but mainly will have to do with whether or not the clause will render the property unmarketable.

fall city nebraska (notes case) can the railroad sell the land, or does it revert to the city? is that a valid restraint on use or an invalid restraint on alienation? the clause is restraint on alienation because the use is so specific that it renders the land unmarketable (the class of people who can acquire the land without violating any of the conditions becomes too specific).

future interests.
the conveyance of the right to enjoy property at a future time. the interest gives legal rights and responsibilities to the owner. the interest exists in the present and can/will become possessory, dependent on what type of interest it is.

future interests outline.  

heirarchy of estates: fee simple ---> life estate ---> leasehold estate

future interest in the grantor: ask if the last vested estate created by a grant or devise is a lesser estate than that held by the grantor/testator, then there must be a reversion (because there's something left over that wasn't given away)

- reversion: a retained interest, something that the original had after giving away other interests. does not mean however, that it will become possessory later; it may be subject to complete divestment/defeaseance on the occurence of some condition. "the vested estate of a lesser value than that of the vested estate which the grantor/successor in interest of a testator has." reversions result from the hierarchy of estates

problem. 

O conveys Blackacre to A for life. 

"to A for life" = life estate in A, reversion in FSA for O, that is certain to become posessory at A's death.

problem. 

O conveys Blackacre to A for life, then to B and her heirs if B survives A.

to A for life = life estate

then to B and her heirs = remainder 

if B survives A = contingency on a future event

to A, and to B = FSA 

if B survives A = O has not created an interest equal to his own, and therefore there must be a reversion in FSA to become possessory should B not survive A. 

problem (see solutions below). 

O owns a fee simple and makes the following transfers. where is there a reversion. 

(a) O conveys "to A for life, then to B and her heirs." 

(b) O conveys "to A for life, then to B and the heirs of her body."

(c) O conveys "to A for life, then to B and her heirs if B attains the age of 21 before A dies." at the time of conveyance, B is 15yo. 

(d) O conveys "to A for 20 years."

O conveys "to A for life, then to B for life." O subsequently dies with a will devising all of O's property to C. then A dies and B dies. who owns the property?

- possibility of reverter (POR): when an owner carves a determinable estate out of his own of the same quantum (see FSD)
- right of entry (ROE)/ power of termination (NYS: right of reacquisition): when an owner transfers an estate subject to condition subsequent and retains the rights to terminate/cut short the estate.

future interests in a grantee: 
- remainder
   - contingent remainders (NYS: remainder subject to condition precedent)
   - vested (having become a completed right for present or future enjoyment that is absolute and not
     conditional) remainders:
     - indefeasibly vested remainder (a remainder that is certain to become possessory and cannot be
       divested)
     - vested remainder subject to open/subject to partial divestment: because of the statute of uses, this
       differs from a contingent remainder. the difference is created by the grant's language and is
       executed in the way that the interest may be shifted.
     - vested remainder subject to complete divestment (NYS: vested remainder subject to complete
       defeasance)

vested v. contingent remainders
a vested remainder is given to an ascertained person and not subject to a condition precedent.
a remainder is contingent if it meets either of the following criteria:
1. it is created in an unborn or unascertained person(s)
2. it is made conditional upon the occurrence of some future event other than the natural termination of the preceding estate (i.e., it is subject to a condition precedent)
if a remainder meets neither of these criteria, it is vested.

PROBLEM SOLUTIONS!

problem.

O conveys to A for life, then to B and her heirs.

to A for life = life estate

then to B and her heirs = remainder in FSA

is the remainder vested or contingent? 

1. is the taker ascertainable? yes - it is B
2. is the taking conditional upon some future event? no

B's interest is indefeasibly vested. if B dies during A's life, on B's death B's remainder will pass to B's devisees, or to his heirs if he dies without a will. if B dies without will and without heirs, the estate will esheat to the state.

is there a reversion?

1. what was the grantor's interest? FSA (because O gave everything away, so at the end of the day, someone will have an FSA)
2. is the last granted estate equal to his own? yes

therefore no reversion.

problem.

B is 15yo. O conveys to A for life, then to B and her heirs if B attains the age of 21 before A dies.

is the remainder vested or contingent?

1. is the taker ascertainable? yes - it is B and her heirs
2. is the remainder subject to any condition that might cause it not to become possessory upon termination? yes - B has to turn 21 before A dies. B is currently only 15, and it is uncertain that he will reach the age of 21 before A dies.
B has a contingent remainder/ remainder subject to condition precedent in FSA. (if B turns 21 before A dies, then he will have met all conditions necessary to have an indefeasibly vested remainder in FSA).

is there a reversion?

1. what was the grantor's interest? FSA
2. has the grantor conveyed a vested estate equivalent to his own? no - the life estate is vested, but the remainder is in FSA but it's contingent
*therefore O must have a reversion in FSA*

problem.

O conveys blackacre to A for life, then to B for life.
A has a life estate.

remainder does not have to be in fee simple. the remainder can be in life estate or in a defeasible fee!

is the remainder vested or contingent?

1. is the taker ascertainable? yes - it is B for life
2. is the remainder subject to any condition that might cause it not to become possessory upon termination? no, A will certainly die.

(what would happen if B died before A? the property would return to O because of reverter.)

is there a reversion?

1. what was the grantor's interest? FSA

2. is there a conveyed interest equal to the grantor's own? no

*therefore O must have a reversion in FSA*

O dies, leaving a will devising all of O's property to C.

A's interest does not change.

B's interest does not change.

O's interest passes to C, so C has a reversion in FSA.

A dies.

what's the effect on A's interest? A's life estate terminates and A has no further interest.

what happens to B's interest? B's interest becomes possessory by operation of law.

what happens to C's interest? no change - C has a reversion in FSA

B dies.

B's interest ends (life estate terminated)

C's reversion becomes possessory and C owns blackacre in FSA

executory interest (NYS: no such thing, instead remainder subject to condition preceding)
an executory interest must be either
(1) shifting executory interest (cut short/ divest interest of the grantee)
(2) springing executory interest (divest the grantor in the future)
there is no legal difference between the two, however.

executory interest can only be created in the grantee. 

in modern times, executory interests are treated as contingent interests, because they are subject to a condition precedent and do not vest until they become possessory.
executory interest may follow a defeasible fee estate. if a grantor creates a future interest in a grantee after a defeasible fee, it will be an executory interest.

problem.

O conveys "to H, its successors and assignees, but if the premises are not used for X purposes during the next 20 years, to B and her heirs."
to H, its successors and assignees = fee simple defeasible
but if the premises are not used for X purposes during the next 20 years = conditional necessary to occur for B to divest H's interests 
to B and her heirs. = shifting executory interest that divests H once the condition above is met
*H has a fee simple subject to an executory interest* 

problem.
O, owner of Blackacre, wants you to draft an instrument of gift. O wants to convey Blackacre to A for life, and upon A's death O wants Blackacre to go to A's children or, if non are then alive, to B. 

(a) O conveys "to A for life, then to A's children and their heirs, but if at A's death he is not survived by any children, then to B and her heirs." at the time of conveyance, A is alive and has no children. what is the state of the title? 
(b) O conveys "to A for life, then to such of A's children as survive him, but if non of A's children survives him, to B and her heirs." at the time of the conveyance, A is alive and has tow children, C and D.  what is the state of the title?
(c) O conveys "to A for life, then to B and her heirs, but if A is survived at his death by any children, then to such surviving children, and their heirs." at the time of conveyance, A is alive and has two children, C and D. what is the state of title?


problem. 
T devises $10K "to L, if and when he survives his wife." what does L have? why would T devise the grant this way?

con law: feb 22 2010 class notes

recap of the dormant commerce clause. 

state activity: dormant commerce clause is to protect against discrimination in interstate commerce.

federal legislative silence: in this realm of states behaving as protectionists/discriminators, congress has not implemented any laws about interstate discrimination. if they had, congress might have created a preemption statute.

the const. gives the nation enumerated power in this area. commerce clause.

what happens when a state acts in a discriminatory manner against interstate commerce?

what case is the blatant example that facial discrimination won't fly? phila v. nj
when a state discriminates in this way, the state action is discrimination virtually per se.

see maine v. taylor: the state must have a legitamate local purpose to discriminate. and this exercise of the legitimate purpose is excersise of state police power. what wouldn't qualify as exercise of police power? first, any exercise that discriminates against bill of rights and due process.

is there less discriminatory means to achieve the end? this is strict scrutiny.

non-discriminatory. see the pike's test.

s. pacific v. arizona.
"the question is whether in the circumstances the total effect of the law as a safety measure in reducing accidents and casualties is so slight or problematical as not to outweigh the national interest in keeping interstate commerce free from interferences which seriously impede it and subject it to local regulation which does not have a uniform effect on the interestate train journey which it interrupts."

kassel v. consolidated freightways corp.

facially neutral regulations with discriminatory effects on interstate commerce:

dean milk co v. madison
this is not a case of facial discrimination (it would be phila. v nj)
what's the test of validity? the court still applies strict scrutiny to this non-facial discrimination case.
how could madison get around the discriminatory effects? the city could have employed a more standard method that is generic and ungeographically motivated (like the model milk ordinance, for example)
why is this case still one of strict scrutiny? because the effect is the same as facial discrimination.

hunt v. washington state apple advertising commission
NC doesn't want any label besides usda label on apples in their state. is there a non-discriminatory way to do that? there's no reason to confine it only to usda.

exxon v. gov of maryland

purpose. with/out effect, who cares about purpose? if you try to discriminate against interstate commerce, but you don't are you culpable? if you don't try to discriminate but you do, are you culpable?

hp hood v. dumond

crim law: feb 22 2010 class notes

mpc 2.02
purposely: conscious object
knowingly: aware
recklessly: consciously disregards substantial and unjustifiable risk
negligently: should be aware of substantial and unjustifiable risk

(reckless and negligent are gross deviation from standard of care)

state v. nations: see case brief from feb 8 2010.

the missouri statute: a person commits the crime of endangering the welfare of a child when he knowingly encourages, aids or causes a child less than 17yo to engage in any conduct (injurious to the child's welfare). 

in this offense, knowledge of the age is an element of the crime.

mpc 2.02 (7): if knowledge is a requirement that must be satisfied, then there must be a high probability that the person knew of the age, unless the actor actually believes that the condition doesn't exist (i.e., that nations didn't know the girl's age)

but missouri didn't adopt all of MPC 2.02. in fact, the legislature specifically rejected section 2.02(7). this probably reflects a conscious choice that should be read into the statute.

for this case, is this a good result? no. proof problem: under a retributive argument, nations seems culpable of willful blindness. from a utilitarian standpoint, nations seems injurious to child welfare and that she should be deterred.

what's a more effective way of getting to the conduct that you want to deter? what makes nations culpable here? if she was intentionally ignorant, that will suffice to establish knowledge.

willful blindness = "you want the job? don't tell me how old you are."
not willful blindness = "you say you're 17? well, OK, i guess you look 17."

flores-figueroa v. us In Flores-Figueroa v. United States, the Court will consider whether, to secure a conviction under this statute, the Government must show that the defendant knew that the means of identification he used belonged to another person.

18 USC 1028(a)(1): The federal aggravated identity theft statute, 18 U.S.C. § 1028A(a)(1), imposes a mandatory two-year sentence on anyone who, during and in relation to certain predicate offenses, “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person.”

knowingly: mens rea
transfers, possesses or uses: conduct
without lawful authority: attendant circumstances
a means of ID: attendant circumstances
of another person: attendant circumstances

prosecution will want to have to just prove conduct. prosecution will want as few elements to apply to the mens rea as possible.
defense will want the prosecution to have to prove everything.

example, if you mistakenly take someone else's student card believing its your student card, the government would argue that you knowingly took the ID, used it, without the lawful authority from the owner, as a means of ID. the prosecution does not want for "of another person" to be included.

why not? how would this have helped figueroa? 
because of the difference in using fake and real ID: therefor, did congress intend knowingly to apply to "of another person"

the US says that congress meant for "knowingly" to apply until "of another person", but not to include that phrase.
mpc 2.02(4) says: when the law defining an offense prescribes the kind of culpability that is sufficient for the commission of an offense, without distinguishing among the material elements thereof, such provision shall apply to all the material elements of the offense, unless a contrary purpose plainly appears.

what is the prosecution's best argument for legislative intent? burden of proof (proof problem): congress could not have intended 'of another person' because it is too difficult to prove in the ID theft market that the actor knew that the numbers were real or fake.

a good argument, but the US doesn't buy it. alito says that the statute construction is being overanalyzed: commas that are parenthetical commas change the meaning of a sentence by describing persons, places, and things.

mens rea and statutory interpretation
1. a mens rea term is presumed to modify all material elements of a statute, unless a contrary indication plainly appears.
yermian case: the actor made a false statement but says that he didn't know that he was making a false statement to the government, and therefore he's not guilty of the crime. does knowingly apply to the first element? this is a different harm, and the application gives not only jurisdiction but also to give power to the government.

2. mens rea at the beginning of a statute usually modifies all elements.
3. mens rea in the middle of a statute usually modifies only following elements.

when there's not a mental state to the mpc, you defer to the four culpability states. 

problem.
A holds B as false imprisonment.
false imprisonment: intentionally seize a person, without authorization of law, and confine him against his will.
intentionally: mens rea
seize: conduct
a person: attendant circumstances
without authorization of law: attendant circumstances
confine him: conduct
against his will: attendant circumstances
does the mental state 
"without authorization of law" is carved out of the statute to keep the mens rea from applying to that element.
without authorization of law is therefore a general intent element.
what do we do when something is general intent element? look to if the mistake was reasonable.

under common law, general/specific intent matters. under statutory law, general/specific do not matter.

burglary: intentionally breaking and entering the dwelling house of another at night, with the intent to commit a felony therein.
intentionally: mens rea
breaking and entering:
the dwelling house
of another
at night
with the intent to commit a felony therein

nypl 140.25: a person is guilty of burglary in the 2nd degree when he (the subject)
knowingly: mens rea
enters or remains: conduct
unlawfully: attendant circumstances
in a building: attendant circumstances
with the intent to commit a crime therein,: specific intent
and when... (2) The building is a dwelling (this is an independent clause and a legislative convention. knowingly does not apply to this phrase, and indicates it by raising a new subject and ): attendant circumstances

140.30 a person is guilty of burglary in the 1st degree...
in a dwelling (instead of in a building): attendant circumstances

ryans case (not in the book): actor was growing illegal mushrooms. the nypl formally said that a person was guilty of CPCS in 2nd degree when
knowingly and: mens rea
unlawfully: attendant circumstances
possesses: conduct
25 milligrams or more of: attendant circumstances
a hallucinogen: attendant circumstances

 actor argues that he could not have known that there were 25 milligrams in the hallucinogen. proof problem: it's too hard to prove that the actor knew the weight of the drug. so actor got off.

220.18. a person is guilty of CPCS in the 2nd degree when he
knowingly and: mens rea
unlawfully: attendant circumstances
possesses: conduct
a hallucinogen: attendant circumstances
and said hallucinogen weighs 25 milligrams or more: attendant circumstances (therefore, knowledge of the weight is not an element that the mens rea applies to)
us v. morris 

side note... 2010 NYFW Media Mixer Party

it was super fun to take a much needed break from dicapo and from con law to go to the NYFW mediamixer event!! thanks to the makeupgirl  and to secret for the props, and thanks to sami duong for the gorgeous gorgeous jacket!!

con law: feb 8 2010 class notes

foreign affairs power.
interesting side article about foreign affairs power 
not enumerated.
some belong to the executive and some belong to the congress.

preemption.
see zschernig.
see garamendi.
souter - field preemption.
dissent - "bedfellows" test doesnt' really apply, skeptics of dormant disabling effects of preemption, and skeptics of
same idea of implication of nat'l power is same in foreign powers and dormant commerce clause

dormant commerce clause.
art. I can be read by two ways: (1) nation has executive power or (2) there's no limit to the state's power.

there may be a third position: (3) some limit to federal and/or state powers

see gibbins v. ogden: the clash is between a federal power exercised and state power exercised which is inconsistent with the other.
the court decides as a preemption case. US doesn't say that the power is exclusively national. states may do things that affect interstate commerce, but doesn't really stem a
US revisits in willson v. black bird creek marsh co. US states that monitoring police powers is not contrary to any dormant national powers.
US visits again in e.c. knight co.

cooley v. board of wardens
a 1789 federal statute provided that the waterways will be piloted as the states regulate, until congress speaks further.
a PA law states that the ships entering and leaving phila. must have a local pilot hired. understandable, readable force behind this law is to monopolize jobs in their waters.
how do we know that this statute is not meant to limit the congressional power?

modern dormant commerce clause doctrine (p.259)
in our world, we know both interstate commerce and state commerce.
nowadays, courts follow a balancing test: courts are essentially making commerce is nationalized because it is at the core of the problem that the original congress was trying to fix.
current US reading of national power: "we're in this together"
what do states do when they cross that objective? dormant commerce clause.

phila. v. nj
"solid waste is bad so we're getting rid of some of it"
what's the dormant commerce clause application? tiers of scrutiny. the court is looking at a facial discrimination against local commerce, it's based on suspicion instead of actualized validity.
suspicion and strict scrutiny are the right places to start. "where simple economic protectionism is effected by state legislation, a virtually per se rule of invalidity has been erected."
nj argues health needs for facial discrimination.
dissent says that it makes no sense to have an all-or-nothing rule.

compelling state interests.
see pike v. bruce church, inc. for the pike (balancing) test

recapping everything to this point
what's the threshold question to distinguish elements of the commerce clause (i.e. what's the difference between lopez and phila v. nj)?

"has congress exercised its power?"
if yes --> our inquiry to states is "does the fed'l law give the state permission/consent (green light to act) or is it exclusively preemptive (state hits a wall)?"
if no --> dormant commerce clause concerns: (1) facial discrimination, (2) non-discrimination/ pike's test, (3) something in between

crim law feb 12 class notes: state v. nation

State v. Nations

p. 145 MO App, 1984

Facts:            Sandra Nations owns a disco, police found a 16 year old girl dancing in the club and charged Nations with “endangering the welfare of a child less than seventeen years old.”  In court the girl said D had asked her for her ID and she was going to get it when police took her into custody, D corroborated her story.  D was convicted and is now appealing based on the provision in the statute which says D must have “knowingly” committed the crime.

Rule:            Knowingly is a term of art whose meaning is limited to the definition given to it by our present Criminal Code.  Literally read, the Code defines knowingly as actual knowledge – “A person ‘acts knowingly,’ or with knowledge,  . . .when he is aware . . . that those circumstances exist.

Holding:            Overturned

Reasoning:            The Modern Penal Code includes willful blindness as knowingly.  If the person knows of high probability then he is considered to know.  But the legislature has not adopted this broader definition of knowingly.  This is known from the State Criminal Code.  Therefore the state did not prove that the club owner had actual knowledge the child was less than seventeen.

crim law: feb 12 2010 class notes

recap.
mistake
a) for general intent element, only a reasonable mistake can be defense.
b) for a specific intent element, any mistake (even unreasonable) is a defense.

common law burglary is breaking and entering (remember, larceny is not breaking into a dwelling) ----> c
the dwelling of another house ---> attendant circumstances
tof another ---> attendant circumstances
at night ---> attendant circumstances
with the intent to commit a felony therein ---> specific intent

problems.
a) adams breaks into a building at night believing it to be a warehouse and looking for something to steal. but adams is mistaken. the building is in fact an artists' loft where vincent lives. adams steals vincent's laptop. 

mens rea: burglary of a non-dwelling
actus reus: burglary of a dwelling

b) baker's laptop has been stolen, and baker thinks vincent did it. so baker breaks into vincent's loft at night, and takes what baker believes is his own laptop. but baker is mistaken. vincent hadn't stolen baker's laptop and the laptop baker "took back" is in fact vincent's.

mens rea: trespassing
actus reus: burglary

if we're going to distinguish culpability, we'll do it by what they were thinking: adams thought he was burgluring a store, and baker thought he was recovering his chattel.

how to analyze mistake: if what the defendant thought what he was doing was less serious than what he did ---> mistake.

what's adam's mistake? the premises being a dwelling instead of a store. 
the dwelling of the house is an attendant circumstance, and so it is a general intent element and so it may be a defense only if it was a reasonable mistake to make. if the mistake is unreasonable, adams is guilty of burglary (i.e., mistake is no defense). 

what's baker's mistake? the computer that he believed was his is not. 
baker is mistaken about whether or not he is stealing. therefore, even if his mistake is unreasonable, he is not guilty because he is mistaken about the specific intent element.

what reasons are there for excluding mistake from specific intent? common law rule about mistake tends to perform like an on/off switch. adams is guilty, even though he didn't think he was committing something not as serious. baker is not guilty even though he knew he was doing something wrong (trespass).

moral wrong doctrine ("clean hands" approach).
legal wrong doctrine.

common law mental states in mistake: only a reasonable mistake will be a defense.
general intent ---> the defendant is aware of the act.
see definition of battery

n.b. update these with the slides from class
modal penal code approach (btw, this is the whole list).
general intent --> only a reasonable mistake will be a defense.
malice --> only a reasonable mistake will be a defense.
specific intent --> any mistake will be a defense.

problem.
jacob wants to kill his wife vanessa. he drove his car at a very high rate of speed into vanessa, who was holding xavier, their infant son. jacob hoped that xavier would survive the collision. the car struck vanessa and xavier, killing both instantly. according to MPC 2.02 with what mental state ("purposely", "knowingly", recklessly", or "negligently") did jacob kill vanessa?
PURPOSELY a person acts purposely with respect to a material element of an offense when:
i) if the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result; and
ii) if the element involves the attendant circumstances, he is aware of the existance of such circumstances and believes or hopes that they exist.


with what mental state did he kill xavier?
KNOWINGLY a person acts knowingly with respect to a material element of an offense when:
i) if the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and
ii) ifthe element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result.

culpability definitions.
mpc.
PURPOSELY subjective mental state. conscious object (for attendant circumstances, awareness)
KNOWINGLY subjective mental state.(for results, practically certain)
RECKLESSLY has a subjective (what was your intent) and objective (how reasonable is the risk) determination mental state. conscious disregards with substantial and unjustified risk
NEGLIGENTLY should be aware of substantial and unjustifiable risk

nypl has four states defined as well, however PURPOSEFULLY becomes INTENTIONALLY.
nypl 15.02 and 15.05 -- know these suckers inside and out!!!!!
INTENTIONALLY
KNOWINGLY
RECKLESSLY

problem.
roberta despised modern architecture. she decided to burn down sam's modern residence. roberta did not want sam to die, whom she knew was inside, so she toassed salt over her shoulder immediately before she torced the residence. roberta genuinely believed this would protect sam. much to her surprise, sam was burned to death in the fire. with what mpc mental state did roberta kill sam? 

CRIMINAL NEGLIGENCE: a person acts with criminal negligence with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. the risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.

caveat discipuli para exam: don't inflate culpability after doing the analysis. think of regina v. cunningham --> if you want to argue recklessness, you must prove cunningham knew. if you want to prove negligence, you have to prove that he knew or should have known. but don't cross the paths.

mpc 2.02 (3) culpability required unless otherwise provided. when the culpability sufficient to establish a material element of an offense is not prescribed by law, such element is established if a person acts purposely, knowingly, or recklessly with respect thereto.

problem.
"a person is guilty of robbery if, in the course of committing a theft, he (a) inflicts serious bodily injury upon another" is toby guilty of robbery if, while committing a theft, he negligently inflicts serious bodily injury upon ursula? look carefully at section 2.02 
toby is not culpabile because he is negligent. there are few statutes that will hold one to the criminal culpability, with the exception of negligent homicide which is a lesser felony.

nypl does not provide a default mens rea. the mental state is in the statute if the legislature wants it in the statute.

problem.
jacob wants to kill his wife vanessa. he drove his car at a very high rate of speed into vanessa, who was holding xavier, their infant son. jacob hoped that xavier would survive the collision. the car struck vanessa and xavier, killing xavier instantly. vanessa survived. according to MPC 2.02 with what mental state ("purposely", "knowingly", recklessly", or "negligently") did jacob kill xavier?
mpc 2.03 
(2) when purposely or knowingly causing a particular result is an element of an offense, the element is not established if the actual result is not within the purpose or contemplation of the actor unless: (at this point, with purpose, the element is not established because jacob did not want xavier to die)
(a) the actual result (xavier's death) differs from that designed or contemplated (that vanessa would die) only in the respect that a different person or property was injured (which is what happened here, and so mpc 2.03(2)(a) TRANSFERS INTENT)

nypl does not have transferred intent. instead, see 125.25, murder in the second degree: transferred intent is written directly into the penal code statutes.

what does it mean to know something? how do we prove someone knew something?

see state v. nation

snow day!!!

culpability defined: crim law exam prep

*** class notes from today went hellah fast. need to flesh out***

mpc
PURPOSEFULLY
purposefulness is a subjective mental state.

KNOWINGLY
knowledge is a subjective mental state.

RECKLESSLY a person acts recklessly with respect to a result or to a circumstance described by a statute defined an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. the risk must be of such a nature and degree that disregard thereof constitutes a gross deviation form the standard of conduct that a reasonable person would observe in the situation.

risk must be bad and unjustifiable.
recklessness is both subjective and objective determination mental state.

NEGLIGENTLY

nypl
INTENTIONALLY

KNOWINGLY

RECKLESSLY a

CRIMINAL NEGLIGENCE

property: feb 8 2010 class notes

fee simple. a fee simple is the greatest interest in land the law allows.

historically, the common law formula for estates in land:
"to A and his/her heirs" -- only signifies that it is a fee simple absolute

the modern alternative:
"to A"

we need to understand the vocabulary of transfers at death.

inheritance of a fee simple problems.

p. 183, problem 3:
O conveys greenacre to A and heirs. when there is a debt, the creditors can attach debtors property. does B have an interest in greenacre that her creditors can attach? - no, B does not have an interest in the property until A dies. 

inheritance is a formula. a living person has no heirs. you can't be an heir unless you survive the death of the true owner. you can't know until someone dies who their heirs might be. heirs are takers under intestate succession laws. a "mere expectancy" is not a legal future interest.

p. 185, problem 2:
O dies intestate without issue. does A have an interest in the estate? must distinguish between issue and heirs. heirs are not limited to issue, and can include ancestors and collaterals. 

p. 185, problem 3:
O conveys blackacre to A for life, remainder to B and heirs (at the time of this conveyance, who owns the property? A owns for life, and B owns the remainder in fee simple absolute). B dies intestate without heir (A's death terminates the life estate, and B has no heirs at death). A then dies. who owns the land? the property asheets (goes to the estate). 

life estate.
common law formula: "to A for life/ as long as she shall live (and then to B)"
what happens when a life tenant dies? the chattel or land could go back to the grantor,
life estate is always followed by a future interest, but the interest doesn't always have to be the same (it just becomes possessory by operation of law). the owner could hold a remainder or a reversion. basically, this just means that no additional legal action is needed to create the possessory right to the property once the life tenant dies. just like magic, the remainder or reversion interest goes from future interest to real, possessory interest.

what happens if A (life tenant) sells interest to C before death?
life estate pur autre vie: C has the right to possession and all other rights of a life tenant until A dies.
A cannot sell what she does not own (i.e., the future interest that becomes possessory upon her death). she has no power to destroy the reversion or remainder.

complications.
numerus clausus: in any kind of case where the grantor's intent may be ambiguous, rules of construction are used to establish the intent. similarly to gruen, the intention will be given deference in light of all the writings/deeds/grants. if the grantor's will has a clause in conflict with recognized property rights (like restraint to alienation), then the grant will be read against that intention (we're not going to deny people their rights just because your will says so).

per policy, numerus clausus helps to promote easy, efficient transfer of property rights.

ambiguous grants, restriction to use and restraints or alienation.

white v. brown. 559 S.W. 2d 938
executrix/executor is one who executes a will.
mrs. white has prepared a holographic will (see statute of wills - this is not OK in every juris)
the problem: the white/lied women have lived in the same house for a number of years, and lied wants evelyn white to be able to continue living there until she dies, and makes sandra white-perry the executrix. however, mrs. lied was one of ten children, and she was survived by 2 sisters who could have taken property in intestate laws transferred their property rights under quick claim to mrs. white. however, there are still nieces and nephews who claim that mrs. white only had a life estate and they have an interest in the reversion.

so basically - if this will created a life estate for mrs. white but didn't give any instruction for after mrs. white's death, it would revert to mrs. lied's estate in reversion. her sisters gave up their rights as heirs at law, but the nieces and nephews did not.

mrs. white holds some interest in the house, and is now suing the heirs at law reversion for a reconstruction of the will's language.

the language of the original will either lays out a fee simple will or not.

the chancellory determines the issue was unambiguous and that the house should be sold. this is NOT what the whites want because the proceeds from the house would not be split with them if they only had a partial interest.

the whites appeal to the SC of tenn, saying that mrs. lied's intents were not unambiguous in the will. it's not unambiguous whether or not she intended to pass a life estate or an inheritance fee simple absolute.

what reasons to not divide up the land?
disagreements could arise between the holders of the land
standardization of property rights, promotion of economic efficiency by having one owner of the land (numerus clausus: protecting legally recognized property rights across the board. for example, if dee says "when I die, I give my house to my daughter to live there, and it can't be sold," the 'can't be sold' part is an idiosyncracy that can't be enforced because it is against the right to alienate).

how do we interpret this will?
lied was limiting the rights of white to use the land "i want evelyn white to have the house to live in."
should this distinction be relevant?
to simplify the things that we can bargain over in land

how do property economics ideas play into the decision in this case?
chrysler was looking to build a plant in the area, and it would be economically positive to read the will as FSA.
but how does that play into the issues of restriction of use and restraints on alienation?

- you can't do the restraint of alienation. you can't go against the common law to enforce someone's will.
- but between the life estate and fee simple...

public policy wants us to keep the property as economically pulled together as possible.

notes (p 196-97).
let's say we agree with the dissent, and the heirs want to sell the land. how do you divide the property?
see mortality tables to calculate mrs. white's reasonable life expectance, rate of interest etc to determine her share. remainder goes to relatives' estate.

conflicts between life tenants and remaindermen.

baker v. weedon
aka doc's kids v. "holly" lula mae (that should make this case easy to remember!)

"always tryin' to hold on to wild things, doc. an' that's yo' problem. you cain't love a wild thing." 

the MS highway dep't wants a right of way to the land, and so the state checks the records and determines the grandkids have an interest that they weren't aware of.
the grandkids and elderly anna agree to settle the right of way for $20K with anna to receive $7500.
the property is currently worth $168K. the court accepts as fact that the land will be worth $336K in four years.

anna wants to force a judicial sale of the land. why can't she just sell it?
the interests of all the parties is different:
- anna has a life estate ("to anna for life and then to my heirs") 
- anna has immediate needs for her health and welfare that are not being met. the property is worth a lot less as a farm right now than as a highway property. the income off the interest would be substantially higher than the income from the farm.
- the grandkids interest is to maximize the value of their inheritance. the remaindermen stand to gain much more if they can wait out the clock, a luxury the life tenant doesn't have.

the core dispute is over the life tenant's right to use the property in a way that will best meet her needs and the remaindermen's rights to future interest of speculative gains. the lower court gives anna what she wants, based on economic waste (the property is not being utilized to its fullest potential right now).

the appellate court says, no the test for judicial sale is whether sale is necessary and in the best interest for all parties with interests in the land. the immediate sale is not in the best interest of the remaindermen. (see the analysis with the actuarial tables)

SC MS tells the chancellory to use its equitable powers and divy up the baby solomon style: sell off a chunk of the land for the life tenant's needed funds or to hypothecate (take over the mortgage) for anna's care and maintenance.

the court basically wants the parties to be creative in equity to settle all of their needs fairly.

this case does not have to do with the doctrine of waste. this doctrine gives a legal cause of action to holders of future interest for specific performance or injunction if the life tenant is doing something to the property that interferes with their rights.

waste (where rights of land are divided up between parties, each party has an obligation to not use the property in a way that interferes with the other parties interests in the land)
for life tenants, this makes sense: a life tenant of a home could knock the house down (right to possession) but it damages the heir's interests (the expectation to get the house)

affirmative waste changes that the life tenant makes to the estate that negate its value or deplete its resources, but that are necessary for the tenant's use during right to possession
permissive waste omissions or negligence, failure to take reasonable care of the property

legal life estates can create a lot of problems:
- limit marketability of the land (because fractional ownership of land is not most
- interests of the parties may not align and thereby difficult to make effective and productive use of the land

why have a life estate?

- want to provide for your wife as well as your children

how else might we provide for generational interests?

- create a trust

"this isn't the type of trustee in a jail, dear... as a rule..." 

trust.
- three parties: settlor (creates the trust), trustee (holds the legal title as fiduciary. trustee can make all the decisions), beneficiary (holds equitable title. beneficiaries can be divided over time.)

con law: feb 8 2010

recap.
taxation - spending lever on supply production of AAA
the roberts opinion starts with a broad view of "general welfare power": the correct position is the hamilton view

general welfare is not just descriptive, it's an end given by nat'l gov't but stops at the states under federalism: can these things co-exist?

butler illustrates that the statute is designed to have buying power to coerce and compel behavior beyond any other power given to the fed gov't. this extends the spending power of

south dakota v. dole
under 23 U.S.C. s. 158, the sec. o ftrans. can withhold 5% of federal highway funds under the commerce clause.
road construction is a big thing. and so is lower drinking age.
south dakota's argument: there must be a relationship between the act (taking road construction monies) and the measure (19 - 21 year olds who
the relatedness test: o'connor says this is the doctrine - so long as there's a connection between what the federal gov't may do and the exercised power, its OK.
the point of federal highway expenditures is to create safe roads: buying concrete, rebar, guard rails, etc.
does the physical have to do with the operators on the road? no -- the spending doesn't effect the human element
o'connor says that this statute would not have a target class: it's over reaching (good kids 19-21 are hampered) and under inclusive (drunks over and under 21 are left out of the class)
does connor explain if there's a way to read this? "the error in butler was not the court's conclusion that the act was regulatory but it's crabbed view of Congress's regulatory power under the Commerce Clause."
AND gov't can't do this because of the 21st amd't...

21st amd't is really what this case is about.
consumption of alcohol is to be monitored at the state level. is o'connor right about this interpretation?
what's the difference between butler and dole?

treaty implementation.
how does a treaty come to be under art.II?
ratification by the senate
legislative power to implement treaties - does Congress have the power to implement via the ratification?
according to missouri v. holland, the trajectory follows that if it's

missouri v. holland
constitutional argument that this oversteps the 10th amd't bounds. but holmes recognizes that the way the nation has developed, the federal government and state governments have evolved such that
scholarly article on missouri v. holland's second holding

congress' power to make and regulate war
war powers. jackson says that "they are the most dangerous to free gov't. vacations of war power should be scrutinized with special care.... tying the war power to war effects is not sufficient (i.e., the world's never gonna be the same after the war) note that roberts was a justice at nurenburg and has changed his views from aggregation because of studies in nazi war power.

woods v. cloyd w. miller 
fall of 1946 it was a good time to be a landlord until the legislation is passed for rent control.

"war does not end with cessation of hostility"
necessary and proper clause
recital requirement: must congress state what it is doing? no, because the court said so...
that sounds pretty dangerous as far as a lack of a limit
but the court says that its clear that the congress is responding to post-war dangers

in a modern war complex, where our wars involve general global authorizations of force and related war powers, where do powers bloom and where do they end?

civil rights. 14th amd't.
ending of the civil war did many things: emancipation, insulation of armed forces, etc.
black codes become invested in southern states.
the federal response are federal civil rights laws.
embedded in art. I
1866 civil rights act, and 1870 civil rights act and 1875 civil rights act: the federal gov't is trying to drive the south to the equality agreements agreed to after the war.

what's at challenge to the 1875 statute?

what's rejected is the plenary power -- this statute is discreet and limited to state actions.

crim law: feb 8 class notes

nature of mens rea.

actus reus elements related to mental state: the complicated part of actus reus is how they apply to the mens rea.
actus reus elements: conduct, result, attendant circumstances
MPC homicide: purposely, knowingly, recklessly, or negligently causing the death of another human being.
for there to be a crime, there must be a voluntary act (that's a given). actus reus instead is the elements.
actus reus: purposely, knowingly, recklessly, or negligently (mens rea) causing the death (actus reus - result) of another human being (actus reus - attendant circumstances)


example.
burglary: breaking and entering (actus reus - house) a dwelling house (actus reus - attendant circumstances) of another (actus reus - attendant circumstances) at night (actus reus - attendant circumstances) with the intent to commit a felony inside (mens rea)

not so important what you call the element, so long as you identify it as an element of the legal analysis.
the challenge is determining if the mental state only apply to the conduct or also to the intent of the attendant circumstances.

20 questions on mens rea readings... 

regina v. cunningham. also, see these brief notes.
unlawfully -
maliciously - mens rea
administer -
by another person -
any poison/ noxious thing -
thereby to endanger

common law mental states
"culpability" concept of mens rea:
immoral state of mind, general "wickedness"
malicious for this purpose means wicked - something which he had no business to do and perfectly well knows it."
result: cunningham was guilty of poisoning (even if his intent was only to steal)

the appellate court takes this case on as a matter of law - what does malice mean?
was the j
"elemental" conception of mens rea:
specifically defined state of mind
the court is recognizing a changing in law...
"malice" requires "either (i) an actual intention to do the particular kind of harm that in fact was done, or (ii) recklessness as to whether such harm should occur or not (i.e., the accused has foreseen that the particular harm might be done, and yet has gone on to take the risk of it)."
n.b. -- cannot say *probably/should have known* because that establishes an out because doesn't assert intent

common law mental states (to be compared with penal law mental states later)
general intent (most difficult area to establish mens rea)

• battery: the unlawful application of force to another resulting in either bodily injury or an offensive touching.

malice 

• arson: the malicious burning of another's dwelling... 
• "the defendant acts intentionally or with reckless disregard of an obvious or known risk"
• murder: killing someone with malice of forethought

specific intent (specific mental requirement/ conduct objective that the defendant must have to be culpable)

• burglary: breaking and entering the dwelling of a another at night with the intent to commit a felony inside.
• larceny 

strict liability (no mental state required)

• statutory rape: sex with someone under the age of consent.

utilitarian --> need mens rea to be deterrable. intent is.
retributive --> need mens rea to be culpable. intent is. negligence

people v. conley.
conley was at a big high school party where there was unlimited beer. he went with a group of friends, including sean, who got injured. at some point, there was some kind of bruhaha, and sean and his friends left. when they were leaving the party, a group of people going towards the party, shouted after them. conley came out of the group and approached them - marty specifically - and demanded beer. marty wouldn't give it to him,

common law mental states

problem:
problem: hunter has intent to kill birds, and that is unlawful hunting. he instead hits another hunter and kills him. NOT TRANSFERRED INTENT. may be a reckless homicide, but will not transfer the culpability of murder.

causes: great bodily harm or permanent disability or permanent disfigurement

people v. navarro
california penal codes essentially just codify the common law rules.
navarro took some wooden beams from a construction site. he was charged with violation of penal code and convicted of petty theft
"every person who shall feloniously steal the personal property of another is guilty of theft"
what does feloniously stealing mean?
cali defines as common law definition of larceny - "trespassory (attendant circ) taking and carrying away (attendant circ) of personal property of another (attendant circ) with intent to steal (specific intent)"

is navarro's mistake a defense? 

defendant A (refused by court): navarro contends that he believed in good faith that the property was abandoned. NO INTENT. prosecution must prove beyond a reasonable doubt.
defendant B (refused): good faith belief that the defendant had permission to take the property then NOT THEFT.

modified jury instructions A: *reasonable* and good faith belief that the property had been abandoned or discarded, NOT THEFT
modified B:

should narvarro be acquited if there's reasonable doubt that he had good faith? what does good faith mean? "honest"

see wetmore: SC reviewed erroneous refusal to consider the evidence that because of a mental illness the defendant could not have intent to commit burglary as defined.
see devine: when felonious intent must be proven it can be done only by proving what the accused knew -- can't steal what you think you have a right to.
here, the defendant belived that the beams were bandoned and so he lacked intent to deprive the owner of his rightful property.

the proper rule of this case: "if no specific intent or other special mental element is required for guilt of the offense charged, a mistake of fact will not be recognized as an excuse unless it was based on reasonable grounds... one does not commit theft by carrying away someone else's chattel in the mistaken belief it was his own."

common law rule of mistake:
a) for a general intent element, only a reasonable mistake is a defense
b) for a specific intent element, any mistake (even if unreasonable) is a defense

because theft is a specific intent crime, navarro's defense is (b): for a specific intent crime,

navarro should be convicted if his belief was not reasonable --> incorrect instruction
the correct instruction was "if navarro didn't

common law battery "the unlawful application of force to another resulting in either bodily injury or an offensive touching."
statutory battery (conley) "a person commits battery if he intentionally or knowingly without legal justification and by any means, (1) causes bodily harm to an individual or (2) makes physical contact of an insulting or provoking nature with an individual"

problem dean simons pats a female colleague on the butt for a job well done. she is offended. dean did it in mistake. battery is a general intent crime. under common law (yes - battery) under illinois stat (no - not intentionally or knowingly)

do class #8 hypo problems.