Essay stuff to know IV

Question 1

What do you say to start off a search and seizure?

Answer 1

The Fourth Amendment protects citizens against unreasonable searches and seizures

A search and seizure are valid only if the government acted pursuant to a valid warrant.

If the warrant is not valid or if there was no warrant all evidence is inadmissible unless an exception to the warrant requirement applies.

Question 2

Also, the difference between an exclusionary rule and the fruit of poisonous tree?

Answer 2

Under the exclusionary rule, evidence obtained in violation of a defendant’s constitutional rights is general inadmissible at trial

Under the fruit of the poisonous tree doctrine, evidence derived from unconstitutionally obtained evidence will also be suppressed

suppression is not required if the train of the unconstitutional action can be attenuated.

Question 3

Valid roadblock means what?

Answer 3

To be valid, a roadblock must i) stop cars on the basis of some neutral, articulate standard, and ii) be designed to service purposes closely related to a particular problem pertaining to autompoviles and their mobility.

Question 4

What should a judge say when adivsing to accept a guilty plea?

Answer 4

Prior to accepting a guilty plea, the jkudge must determine that the plea is voluntary and intellingent

this must be done by addressing the defendant personally in open court on the record.

The judge must ensure that the defendant known and understand: a) the nature of the charge and the crucial elements of the crime charged, ii) the maxim,um possible penalty and any mandatory minimum and iii) that the defendant has a right not to plead guilty but waives the right to trial if he does plead guilty.

The remedy for a failure to meet the standard for taking a plea is withdrawal of the plea and pleaing anew.

Question 5

In attempt, what is the standard to determine whether there was mere preparation or not?

Answer 5

The defendant must have committed an act beyond mere preparation for the offense, ii) the traditional rule follows the “proximity test” which requires an act that is dangerously close to success, iii) a majority of the states now follow the test similar to that of the Model Penal Code, requiring a “substantial step” towards the commission of the crime.

Question 6

How do you terminate a periodic tenancy?

Answer 6

A full period before IN WRINTG!

Question 7

What happens when a tenant unjustifiably abandons the property?

Answer 7

Landlord may do nothing o rrepossess the property.

Traditionally the landlord may let thepremises lie idle and collect rent from the abandoning tenant.

The majority view requires the landlord to make reasonable efforts to mitigate his damages by reletting to a new tenant failure to do will reduce his recovery.

Question 8

Does a landlord have a common law duty to repair?

Answer 8

Sort of/.

The duty must be provided for in the lease or require dby statute or by implied warranty of habitability,

Question 9

What do you say for a breach of lease terms?

Answer 9

At common law, covenatns in a lease were independent of each other, meaning that one party’s breach resulted in a claim for damages but did not excuse the other party’s performance or entitled her to terminate the lease.

Modern courts construe covenants as dependent when the breach relates to a material part of the laeaset excusing one party’s performance after proper notice an time to cure.

Question 10

Do you need to show actual damages for public matters?

Answer 10

YUP
When a defamatory statement involves a matter of public concern or involves a public figure, the plaintiff must provide competent evidence of actual injury (i.e., presumed damages are not permitted absent a showing of knowledge of falsity or reckless disregard of truth). Actual injury is not limited to out-of-pocket loss; it may include impairment of reputation, personal humiliation, and mental anguish

Question 11

Equitable Subordination

Answer 11

Equitable Subordination
As a general rule shareholders who are unsecured creditors are not subordinate to other, outwise unsecured creditors. Thus, if the general rule is followed, EC, M and R each would be entitled to a pro rata share of D’s 50,000.

Since EC is owed 90,000 of the total 120,000 debt it would be entitled to ¾ of the 50,000 (37,500), and M and R each would be entitled to 1/8th share (6250). However, a court might subordinate M and R’s claims if any kind of wrongdoing is attributable to them. This is known as the Deep Rock doctrine or equitable subordination. In such a case, Dryco would receive the entire 50,000 and M and R each would receive nothing.

Question 12

promoters jointly and severally liable?

Answer 12

• Partners - -like promoters are jointly and severally liable for obligations incurred on behalf of the partnership. Since it can be argued that the purchase of the dryer was for the partnership business, R can be held liable for the balance left owing to EC on a partnership theory.

Question 13

So, what do you say for diversirt where there is 1 P vs. 3D?

Answer 13

For a court ot have subject matter based on diversity jurisdiction, i) the amount in controversy must exceed $75,000 and ii) there must be complete diversity which requires that each plaintiff must be of diverse state citizenship from every defendant.

i) an individual is a citizen of his domicile, ii) a corporation is a citizen of every US state or foreign country in which it is incorporated and the one US state or foreign country in which it has its principal place of business, iii) the xitizneships of the parties are determined when suit is filed,
iv) GENERALLY, THE AMOUNTS CLAIMED AGAINST DIFFERENT DEFENDANTS MAY NOT BE ADDED TOGETHER TO SATISFY THE AMOUNT IN CONTROVERY REQUIREMENT UNLESS THE PLAINTIFF IS ASSERTING A CLIAM FOR WHICH THE DEFENDANTS ARE JOINTLY LIABLE.

NOTE: that if we have P and D1 and D2. If D1 wishes to remove ENTIRE case, D2 gotta join as well, otherwise not.

Question 14

If you “moved all your belongings” to State B for work, does that mean that you now reside in State B?

Answer 14

Yes, even if the contract was supposed to be done in 3 years or so (although argue otherwise as well)

Question 15

What is an appeal by writ?

Answer 15

i) Alternatively a party can seek an extraordinary writ of mandamus or prohibition as a means of review on a showing of irreparable harm if the normal appeals route would be followed.

ii_ the movant also must show a beneficial interest in the outcome of the writ proceeding.

Ex. a P can argue that the costs of going to trial in federal court and then do ti all over again state court would causes expenses that are too great.

Question 16

Slap down for conflicts of itnerests

Answer 16

Under the AVA Rules a lawyer may undertake a representation despite the concurrent conflict if the lawyer i) reasonably believes that he can competently and diligently represent each affected client despite the conflict, and ii) each affected client gives informed consent confirmed in writing.

The California Rule is the same, except that it requires “informed written consent”.

Question 17

Slap down for the duty of competence

Answer 17

i) a lawyer must act competently in handling legal matters for his client,
ii) in California a lawyer is subject to discipline only if he intentionally recklessly, with gross negligence or repeatedly fails to perform legal services with competence.

Question 18

Don’t forget that lawyers have a duty to supervise

Answer 18

A lawyer having managerial or direct supervisory authority over a nonlawyer must make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer.

Question 19

Governing disbarred in California

Answer 19

i) the California Rules also specifically govern the employment of disbarred and otherwise ineligle lawyers
ii) with notice to the State Bar and affected clients, such persons may engage in certain research, drafting and clerical activities,
iii) but must not engage in any activity that constitutes the practice of law.

Question 20

So, you piercing the corporate veil, can you do that if the shareholders took money belonging to the corporation for themselves and then the corporation also made misstatements.

Answer 20

So first you give the slapdown for piercing the corporate veil.

Then, you talk about alter ego and how shareholders abused a privilege of corporation and it is unjust to let them keep it.

Then you try to argue that there was fraud, because the corporation made mistatements, that the shareholders should be held liable.

Question 21

Do directors have to declare dividends?

Answer 21

NO, they have discretion on whether to do so. Can always argue that a lot of income called for sharing but this is unlikely to be a successful argument.

Question 22

Can a board of directors advance funds if the directors are undergoing some lawsuits?

Answer 22

YEAH kinda….

Advancement is permitted if the directors furnish the corporation with a statement that they believe they met the appropriate standard of care and that they will repay the corporation if they are later found not to have met the appropriate standard.

Question 23

when can a shareholder build an individual claim against the corporation?

Answer 23

They can when i) the direct actions seek to redress injuries to the personal rights of the plaintiff and ii) the remedies in direct actions inure to the shareholder directly.

If so, go on on whether the corporation breached a duty to the shareholder. If so then he can sue.

ALSO NOTE, directors owe duties to corporation NOT shareholders. So shareholders CAN’t bring personal actions against directors because they breached their fiduciary duties.

Question 24

Duty of care of directors

Answer 24

when going through them don’t forget to mention that in making decisions directors are allowed to rely on information opinions and reports made by other corporate employees directors and officers whom the directors reasonably believe to be reliable and competent.

Question 25

Shareholder and dissolution

Answer 25

Remember that a shareholder (even a minority)can ask for the dissolution of the corporation if it finds that they were oppressed by majority shareholders.

Question 26

Requirements to ask questions on cross-examination

Answer 26

i) A witness may be interrogated upon cross examination regarding any specific instance pf conduct that is probative of truthfulness
ii) but the cross examiner must make the inquiry in good faith (DIDN”T KNOW THIS, this was in relation to a lawyer who asked question while having no evidence)

Question 27

Can a receipt be hearsay?

Answer 27

YUP!!!!! don’t forget. Likely admissible under the business record exception.

Question 28

Tell me about the best evidnece rule [look at second point in particular]

Answer 28

i) under hte best evidence rule, when the terms of a writing in the case where the terms are material, the original must be produced
ii) the best evidence rule applies where the knowledge of a witness concerning a fact results from having read it in the document.

An exact copy of an original such as photocopy, is admissible to the same extent as an original unless a) a genuine question is raise about the original authenticity, or ii) under the circumstances it would be unfair to admit the duplicate in place of the original

Question 29

Strategically, how do you go through hearsay?

Answer 29

Mention some of the exceptions even if they are liekyl not to apply as long as there is a chance that they will apply. COver everything!

Question 30

If shareholders approved a material change, can they later sue for breach of duty by the board?

Answer 30

Whether the sharehodlers will be estopped from complaining about the board’s breach because they approved the merger

i) a person may be estopped from complaining about actions that he himself approved
ii) however estoppel works only when all material facts are known by the party against whom estoppel is eough

Here the shareholders argument would be that while they overwhelmingly approved the cash out merger they would to have done so if they had known that the board had made no effort to determine what the company’s stock was worth

It would be unfair to stop the shareholders form complaining here.

Question 31

[LOOK[ what duties do corporate officers owe

Answer 31

Corporate officers are fiduciaries and owe their corporation the duty to act in its best interest and not for personal fain.

A corporate officer who has inside information nas a duty to disclose that information to the shareholder with whom he deals or regrain from trading (sometimes called the disclose or abstain rule).

SO, use agency fiduciaries duties ok?

Question 32

Officer sells 5000 before knowing that there is going to be a merger. Merger where 90% of shares are bought happens. 16b breached?

Answer 32

Officer might argue that the sale should not “count” under section 16b because it was no ordinary sale the sale was part of a cash out merger.

The court will ask whether the transaction in question is the kind of transaction in which abuse of inside information is likely

Mergers such as the one here give rise to an opportunity for abuse of inside information and there is therefore if there is an actual abuse, likely that 16b will apply.

Question 33

Slapdown for lawyer and advertising.

Answer 33

i) lawyer advertising is generally permisisble as long as it is not false or misleading
ii) a lawyer may tell the public in which field of law she practices,
iii) A lawyer may not claim to be a “certified specialist” in a certain field unless she has been certified by an organization approved by the state bar or accredited by the ABA

Question 34

PYMENT FOR RECCOMEDING LAWYER’S SERVICES

Answer 34

i) a lawyer generally must not give anything of value to a person for reccomeding the lawyer’s services
ii) ) a lawyer may give a gift or gratuity as a token of appreciation to a person who recommended the lawyer but the gift or gratuity as a token of appreciation to a person who recommended the lawyer but the gift or gratuity must not be offered or given in consideration of an understanding that such gift or gratuity would be forthcoming or that referrals would be made or encouraged in the future.

Question 35

What is the general rule that a lawyer cannot be a liar?

Answer 35

A lawyer has a hgeneral duty to not engage in conduct involving dishonesty, fraud, deceit or misrepresentation

Question 36

Slapdown for communication with a represented person

Answer 36

i) in the representation of a client a lawyer must not communicate about the matter with a persoson she knows to be represented by counsel in the matter unless ii) the other counsel has granted permission or iii) she is otherwise authorized by law or court order to make the communication

When the represented party is an organization the lawyer must obtain the consent of the organization’s counsel before communicating with a constituent of the organization i) who supervises or regularly consults with the organization lawyer about the matter, ii) who has authority to obligate the organization with respect to the matter, or iii) whose conduct in the matter may be imputed to the organization.

The cA Rule doe snot include categories i and ii above but similarly prohibits communications with any current officer, director, [artner or managing agent of the organization.

Question 37

Types of restrains of alienation

Answer 37

There are trhree types of restraints on alienation, i) disabling restrinats, which support to make any attempted transfer ineffective, ii) forfeiture restraints under which an attempted transfer results in a forfeiture of the interest and iii) promissory retraints under which an attempted transfer breaches a covenant.

Any total restraint ona fee simple (forfeiture, disabling or promissory) is void but a restraint for a limited time and reasonable purpose may be upheld.

WHen a restraint is voided the effect is to strike the condition containing the restraint from the original conveyance.

TALK ABOUT what would happen if retrains is valid or if restraint is void.

Question 38

You know right of re-entry, when do you have to exercise it?

Answer 38

Until a grantor exercised hig right of entry no cause of action arises because the grantee’s continued possession of the land is proper. Most courts hold the grantor must exercise his right within reasonable time after the condition occurs or his action is barred by laches.

Question 39

So what is the slapdown for continuing trespass?

Answer 39

When the defendant takes property from anotehr with some sort of wrongful state of min (ex. the intent to borrow without permission) then later decides to keep the property permanently the defendant is guilty of larceny under the fiction that the trespass continues until he forms the requisite state of mind,

Question 40

Plain view exception:

Answer 40

Under the plain view exception to the warrant requirement, a police officer may mayke a warrantless seizure when he i) is legitimately on the premises, ii) discovers evidence fruits or instrumentalities of crime or contraband and iii) sees such evidence in plain view and iv) has probable cause to believe that the item is evidence contraband or fruit or instrumentality of a crime

Don’t forget the third element.

Question 41

So Miranda slapdown.

Answer 41

i) police officers must inform detainees of their rights via Miranda warnings before conducting a custodial interrogation, II) statements obtained as a result of a custodial interrogation without Miranda warnings generally are inadmissible
i) a suspect is incustody when he is placed in a situation where a reasonable person would now feel free to leave, ii) the freedom of movement” test applies to determine whether the person’s freedom of action is limited in a significant way, iii) the more an environment presents the same inherently coercive pressures as a station house questioning at issue in Miranda, the more likely the suspect is in custody.
i) a routine traffic stop is temporary and brief so the motorist should not feel unsduly coerced, ii) miranda warnings normally need not be given during a traffic stop
i) Interrogation refers no only to express questioning but also to any words or actions on the part of police officers designed to elicit an incriminating response, ii) Miranda does not apply to spontaneous statements not made in response to interrogation.

[And YES you gotta know all this EXACTLY!!!!]

Question 42

Larceny

Answer 42

i) larceny is the trespassory taking and carrying away fo tangible personal property with the intent to permanently deprive a person of his interest in the property, ii) a taking is trespassory if done without consent or with consent induced by fraud,

Question 43

Elements of malivious prosectuion

Answer 43

A claim for malicious prosecution has been expanded in most jurisdictions to include not only wrongful institution of criminal proceedings but also wrongful institution of civil proceedings.

The tort of malicious prosecution requires a showing of i) institution of criminal or civil proceeding against the plaintiff, ii) termination in the plaintiff’ sfavorl iii) absence of probable cause for the prior proceedings, iv) improper purpose of the defendant and v) damages.

i) plaintiff may show absence of probable cause by showing either that there were insufficient facts for a reasonable person to believe that the plaintiff was liable tr that the defendant did not actually believe the plaintiff to be liable
ii) if a defendant instituted the prior proceedings on the advice of counsel after full disclosure of the facts this establishes probable cause.

Damages: th e plaintiff may recover damages for all harms that are the proximate result of the defendant’s conduct including any expenses in defending the lawsuit.

Question 44

What damages do you need for strict liability?

Answer 44

PROPERTY DAMAGES!!!!!!!!!!!!

Question 45

Elements in strict liability ultrahazrdaeous activity.

Answer 45

To prevail in her cause of action, P must show that i) D was engaging in an ultrahazardous or abnormally dangerous activity, ii) P was a foreseeable plaintiff to whom harm could have been foreseen, iii) the harm was actually and approximately CAUSED by the dangerous nature of the activity and iv) P suffered damages to person or property.

An activity may be characterized as ultrahazardous when the activity i) that creates a foreseeable risk of serious harm even when reasonable care is exercised bt all actors and ii) is not a matter of common usage in the community.

Whether an activity is ultrahazardous is a question of law that court can decide on a motion to dismiss. (don’t forget last one)

Question 46

Partnership order of payment, how does it work?

Answer 46

i) a general partnership all partners are jointly and severally liable fo rall obligations of the partnership,
ii) when a partnership is dissolved and its assets are reduced to cash the cash must be used to pay the partnership’s liability in the following order: creditors (including partners who are criedotrs) and then partners in settlement of their accounts.
iii) if the assets at dissolution are worth less than the money owed to creditors and the aprtners’ capital contributions that have not been prepaid, the shortfall is a loss that must be divided among the partners, and
iv) as among themselves absent an agreement to the contrary, partners share losses in the same proportion as they share profits and absent an agreement to the contrary partners share profits equally.

Question 47

Applying debts owed by a general corporation

Answer 47

a) say how much is owed in total (creditors + what the partners put in)
b) say that partnership assets are applied first
c) if none, each partners pays equal amount unless agreement
d) if you, as a partner, already contributed that amounted will be taken down from the amount you owe.

Question 48

Principal gives credentials to A. A uses those credentials to buy something that he/she was not supposed to buy. Apparent agency?

Answer 48

YES enough to create it.

ALSO remember to include sentence “based on ….. third party could reasonably believe that A had reasonable authority”

Also remember to always say whether the third party knew that agent did not have actual authority.

Question 49

[Important]

When is a Principal liable for torts of independent contractor?

Answer 49

i) ordinarily a principal is not liable for an independent contractor torts, and
ii) estoppel can be raised when the principal creates the appearance that an employer relationship exists and a third party relies on that relationship

Ex. Hospital holding out its doctors (which are indepn) to be employees. estoppel would work here.

Question 50

Strict liabiltiy

Answer 50

TALK ABOUT ALL THREEEEEEEE!!!!!!

Question 51

Strict liabiltiy warnings, “learned intermediary rule

Answer 51

a warning about a product given to the prescribing physician rather than a patient usually will suffice.

Question 52

What do you say for representation theories?

Answer 52

An express warranty arises when a seller or supplier makes any affirmation of fact or promise to the buyer relating to the goods that becomes part of the “basis of the bargain”.

Liability for misrepresentation arises when a representation by the seller about a product induces reliance by the buyer in particular the misrepresnetation

i) must be of material fact
ii) must have been intended to induce reliance by the buyer and
iii) must have been a substantial factor in inducing the purchase.

Question 53

Couple of things about focs and their failure about warn about risks of pill or surgery

Answer 53

• Firstly in most jurisdiction doctors are held to a national standard of care to evaluate the conduct of physicians

A doctor proposing a course of treatment has a duty to provide the patient with enough information about its risks to enable the patient to make an informed consent to the treatment.

breach: in the case of informed consent the specific rule is that if a doctor fials to disclose a risk that was serious enough that a reasonable person in the patient’s position would have witheld consent to the treatment the doctor has breached his duty of care.

Question 54

LLP filing

Answer 54

MUST be signed by the general partnership

Question 55

LLP slapdown

Answer 55

i) a limited partnership is comprised of at least one general partner and one limited partner and
ii) a certificate of limited partnership must be filed with the secretary of state and signed by all general partners.

Question 56

Personal jurisdiction traditional bases

Answer 56

i) in personam personal jurisdiction refers to the court’s ability to exercise power over a particular defendant
ii) the traditional bases for personal jurisdiction are domicile, presence in the state when served and consent

Question 57

Slapdown for longarm statute/ constitutional limitations

Answer 57

Since no traditional basis exists the plaintiff must look to see if the state has a long arm statute that would allow personal jurisdiction over an out of state defendant

i) State X long arm statute allows a court to exercise personal jurisdiction to the fullest extent permitted by the USC
ii) to be constitutional there must be sufficient contacts with the forum state so as to dno offense the traditional notions of fair play and substantial jusrice

iii) the Supreme Court has listed a series of factors with which to assess the constitutionality of personal jurisdiction: contact, relatedness and fairness

Question 58

Minimum contacts

Answer 58

i) minimum contacts requires a showing of purposeful availment and foreseability
ii) the court must find that defendant purposefully availed itself of the privilege of conducting activities in the forum state, thus invoking the benefits and protections of it slaws
iii) the defendant also must know or reasonably anticipate that its activities in the forum render it foreseanle that it may be healed into court there.

Question 59

Slapdown for SMJ (and yes there is more than you might think)

Answer 59

i_ SMJ refers to the court’s ability to hear a type of case

ii) the lack of subject matter jurisdiction is not waived by failing to raise it at trial
iii) it may be raised for the first time on appeal
iv) there are two main bases for original federal subject matter jurisdiction: federal question jurisdiction and diversity jurisdiction
v) each claim asserted in federal court must have an independent basis for federal subject matter jurisdiction
vi) but note that if a claim does not have such a basis the court may be able to exercise supplement jurisdiction.

Question 60

Slapdown for necessary parites

Answer 60

i) compulsory joinder looks to see if the absentee should be and can be joined
ii) if the absente cannot be joined the next step is to determine whether the action should proceed without the absentee

an absentee should be joined when i) complete relief cannot be accorded among the other parties to the lawsuit without the absentee’s presence or ii) the absentee has such an interest in the subject matter of the lawsuit that his absence will, as a practical matter, impair or impede his ability to protect that interest or leave the other parties at substantial risk of incurring multiple or inconsistent obligations.

Question 61

Had a question where Sharehodler said to baord: “hey buy back my share” they said ok. What are we dealing with here?

Answer 61

Shares are redeemable only if the articles provide that they are redemeable.

Repurchases of stock are a type of distribution

Corporation may not make a distribution if after giving effect to the distribution the corporation is insolvent.
This means the corporation would not be able to pay its debts as they become due or the corporation’s total assets would be less than its total liabilities.

Situation where Fred wanted to force corporation to purchase his stock for $25.

Generally declaration of distributions is solely within the discretion of the directors and it takes a very strong case in equity to induce a court to interfere with the directors’ discretion. COurt have held that shareholders in a close corporation owe each other a duty of loyalty and upmost good faith.

Question 62

Corporation - involuntary dissolution what do you say?

Answer 62

Shareholders may seek judicial dissolution for a few reasons, including where the directors are acting in a manner that is illegal, oppressive, or fraudulent or where corporate assets are being wasted or misapplied to incorporate purposes.

Question 63

Slapdown for gifts of CP

Answer 63

A spouse may not make a gift of CP to a third p[arty without the written consent of the other spouse. During the lifetime of the donor the wronged spouse may move to set aside the transfer completely and compel the return of the entire property to the community estate.

Question 64

Issue: what property can be reached to satisfy the outstanding debt of one spouse for payment of a loan taken our prior to marriage

Answer 64

i) Solely for purpose of allocating unpaid debts at divorce, CA distinguishes between debts that are allocable to the community and debts that are allocate to each spouse as his separate obligation,
ii) separate debts incurred bt a spouse before marriage are assigned to the spouse who incurred them as her separate obligation without offse,
iii) if a debt was neither incurred bt a person not assigned b the court tot that person, he is not personally liable for the debt and neither the separate property he owned at the time of the division nor the property he received in the division is liable for the debt.

[ex on how to apply in case you are confused)
i) since W incurred his debt before marriage, the debt will be assigned to her and she will be personally liable for it, in including her portion of her car and her interest in the Montana house, ii) the property Herb receives from the divorce will not be liable including H’s interest in the car, the MOntana house, or any of his other property. So the bank can recover only from W’s property.

Question 65

Procedural Due Porcess slapdown

Answer 65

The Fifth A of the US Constitution is applicable to the states through the DUe Process Clause of the 14th A. The Fifth Amendment prohibits the government from denying a person of life liberty or property without due process of law The Fifth Amendment applies when individualized decisions are made. At a minimum due process requires the opportunity to present objection to the proposed government action to a fair and neutral decisionmaker.

The decisionmakrer need not be a judge,

Whether a life, liberty, or property interest is involved is govenremnt by state law.

Question 66

For Fundamnetal Due Process purposes, if a right to vindicate a constitutional right fundamental?

Answer 66

YES!!!!!

Question 67

Comprehensive EP slapdown.

Answer 67

i_ EP clause of the 14th A prohibits states from discriminating against people unreasonably.

If discrimination involves a fundamental right, strict scrutiny applies.

The same test applies to discrimination base don a suspect classification such as race or national origin.

i) if government discrimination is based on a quasi suspect classification intermediate scrutiny is applies, ii) the government must prove iii) that the discrimination is substantially related to an important govenremnt interest.

Gender and legitimacy are quasi suspect classification.

WHen discrimination is based on gender the Supreme Court has found that the government must hso an exceedingly persuasive justification.

The interest must be genuine not hypothesized for ht purpose of litigation.

The government’s justification may not rely on overbroad generalization about males and females.

In most cases, intentional discrimination against men or women will be held invalid.

i) in all other cases, discrimination will be upheld unless, ii) the person challenging the discrimination can prove iii) that the discrimination is not rationally related to a legitimate government interest.

As a general rule, wealth is not suspect or quasi suspect classification.

Question 68

[totally didn’t know this]

So what do you say for breach?

Answer 68

Failure to perform in accordance with a contract’s terms is a breach. Every breach gives the nonbreaching party a right to provable money damages, but only a material breach excuses the nonbreaching party from performing.

A breach is minor if the obligee gains the substantial benefit of the bargain despite the defective performance, ii) a material breach means that the obligee did not receive the sub stantial benefit of the bargain.

In determining whether a breach is material the court will look not only at whether there was a material breach of a particular provision but also at the the totality of the deviations from the contract terms.

Courts generally consider the following factors in determining the materiality of a breach: i) the extent to which the nonbreaching party will receive the benefit he expected,ii) the extend to which the nonbreaching party can be compensated in damages, iii) the hardship to the breaching party if the contract is terminated, iv) the extent to which the breach was negligent or willful, v) rhw wxnrwnr to qhixh rhw ebwxHINF Pert ha PWEDOEMWS ns hrw likwlihoos od dull pwedoemNXW.

The contract itself may make a detail of the performance a matter of bargained for importance if so defects in performance that would be minor breaches will instead be material.

This you discuss are: how much was completed, whether it was intentional, also whether a reasonable person, so the trier of fact would consider as a material breach.

Question 69

Little restitution slapdown you can put for construction contracts

Answer 69

i) restitution is based on preventing unjust enrichemtn, ii) even when a party is the one who breached the contract he is entitled to recover if the other party otherwise will be unjustly enriched. iii) the measure of restitution damagefs is the value of the benefit conferred minus the innocent party’s damages,

Question 70

Little slapdown for whether time is of the essence

Answer 70

i) Generally the failure by a promisor to perform at the stated time is not a material breach.
ii) However if the nature of the ctornact is such that performance at the agreed time is vital or if the contract contains a time is of the essence clause, failure to perform on time is a material breach.
iii) some courts have held that if the overall circumstances indicate that the date of performance was not of great importance to the parties a minor delay will not constitute a material breach evem if the contract has a time is of the essence clause.

Question 71

[know these by heart and shut up]

Insanity

Answer 71

M’Naughten Rule: Under here, a defendant is entitled to acquittal if a disease of the mind caused a defect of a reason such that the defendant lacked the ability at the time fo his actions to either know the wrongfulness of his actions or understand the nature an quality of his actions.

Irrestible Impulse Test: Under the irresistible impulse test, a defendant is entitled to acquittal only if because of a mental illness he was unable to control his actions or to conform his conduct to the law.

Durham: Under the Durham test, a defendant is entitled to acquittal if the crime was the product of mental illness and would not have been committed but for the disease

American Law Institute or Model Penal Code Test: Under the American Law Institute or the Model Penal Code test, a defendant is entitled to acquittal if he had a mental disease or defect and as a result he lacked substantial capacity to either i) appreciate the criminality of his conduct or ii) conform his conduct to the requirements o law.

Question 72

Evidence standard of relevance

Answer 72

For evidnece to be admissible it must be i) logically relevant (has a tendency to prove or disprove a fact of consequence) and ii) legally relevant (court has discretion is excluding relevant evidence eif its probative value is substantially outweighed by a risk of unfair prejudice a confusion of issue and the like)

Question 73

What facts can be given judicial notice?

Answer 73

Only relevant facts.

SO can still talk about whether it would cause prejudice.

Question 74

Slapdown for judicial notice in criminal case?

Answer 74

Matters of common knowledge in the community, gfacts capable of certain verification and certain scientific principles all are appropriate matters for judicial notice.

In a criminal case, the FRE provide that the jur y should be instructed that it may bit is not reuiqred to accept the judicially noticed fact as conclusive.

Question 75

Slapdown for “scope of cross examination”

Answer 75

Cross examination is limited to i_ matters brought out on direct examination and the inferences naturally drawn from those matters, and ii) matters affective the credibility of the witness.

Question 76

Can a jury conduct independent investigations?

Answer 76

The role of ht ejury is to weigh the evidence that is duly presented in court, thus a jury should not conduct an independent investigation.

A jury is generally prohibited from testifying in post verdict proceedings as to matters occurring in the course fo jury deliberations.

Question 77

Government lawyer into governmental practice

Answer 77

A lawyer must not represent a client in connection with a matter in which the lawyer participated personally and substantially as a government officer or employee unless the appropriate govenremnt agency gives informed consent confirmed in writing, ii)a “matter” must involve specific facts and parties.

[didn’t know the thing about the “matter”