ADAPTIBAR - Missed Qs Flashcards Preview

Bar Exam - FL > ADAPTIBAR - Missed Qs > Flashcards

Flashcards in ADAPTIBAR - Missed Qs Deck (87)
Loading flashcards...
1

Constitutional Law

The Supreme Court of the US will only hear a case from a state court judgement on FEDERAL GROUNDS. It will not review a decision by a state supreme court when that decision rests upon an independent and adequate state ground.

The Court will refuse jurisdiction if it finds adequate and independent nonfederal grounds to support the state decision.

The nonfederal grounds must be adequate so that they are fully dispositive of the case. This way, even if the federal grounds are wrongfully decided, it would not affect the outcome of the state.

2

Real Property

Rule Against Perpetuitites

No interest is good unless it must vest, if at all, no later than 21 years after some life in being at the creation of the interest.

If RAP applies, only specific clauses that violate will be removed or subjected to the "wait and see doctrine", depending on jurisdiction. The harsh rule of completely striking an entire bequest is not generally followed in American jurisdictions.

Vested interests are NOT subject to RAP. Interests are vested if there is no condition attached which must be satisfied; the holder of the vested remainder has a present or certain right to take prosssession of the property when the prior estates termianted.

3

Real Property

Restraints on Alienation (3)

Disabling Restraints
Under which any attenmpted transfer is ineffective.

Forfeiture Restraints
Under which an attempted transfer results in a forfeiture of the interest

Promissory Restraints
under which an attempted transfer breaches a covenant

FOrefieture and Promisorry restraints on legal life estate are valid as a practical matter because few would be willing to pay full value for an estate of uncertain duration.

Disabling restrations on legal life estates are VOID.

4

Real Property

Equitable Servitudes v. Real Covenant

An injunction is sought -- > equitable servitude
Money damages are sought --> possible real covenant

5

Real Property

Equitable Servitudes

3 Elements Must Be Met for An Equitable Servitude to Run w Land

(1) Intent for it to run w the land
(2) Notice - Actual, Inquiry or Record
(3) Covenant "Touches and Concerns" the land

*** A covenant not to compete is considered a covenant that c"touches and concerns" the land

6

Real Property

Parol Evidence Rule

Parol Evidence rule bars extrinsic evidence of a prior agreement either whether the prior agreement contradicts the terms of the final written agreement or where the prior agreement purports to add to a completely integrated agreement (i.e., one that is intended by the parties to be both the final and exclusive manifestation of the parties' understanding).

EXCEPTION: where the extrinsic evidence is offered to prove the existence of a condition precedent to the written agreement

7

Constitutional Law

COmmerce Clause

4 Categories of activities which congress can constitutionally regulate under the commerce clause:

(1) channels of interstate commerce
(2) instrumentalities of interstate commerce
(3) articles moving in interstate commerce
and
(4) activities having a substantial effect on interstate commerce

8

Constitutional Law

13th Amendment

Abolishes Slavery

Congress has the power under the 13th amendment to eradicate the badges and incidents of slavery and discrimination against black persons in business transactions - a badge and incident of slavery

Congress may regulate private action in general here.

9

Constitutional Law

General Welfare / Spending Power

Congress has the power to enact laws to PROMOTE general welfare in connection with its SPENDING POWER (only)

Spending power does NOT give congress the power to exercise executive branch powers.

GWC is not an independent source of legislative power, but rather a qualification on the spending power

10

Constitutional Law

Reasonable Expectation of Privacy in Bank Account Records?

NONE

SC has held that a person had no reasonable exception of privacy in the bank records of their account

11

Constitutional Law

15th Amendment

Voting Rights

The right to vote shall not be abridged on the basis of race or color

12

Constitutional Law

14th Amendment

Gives Congress the power to remedy violations of individual rights by the government, but only as those rights have been defined by the courts.

14th Amendment only applies to private action in LIMITED situations --Private bias -- wheh the function being perforemd is a traditional and exclusive public function or when there is significant state involvement

How to prove intent by the government to discriminate:
(i) fascial discrimination
(ii) dscriminatory application
(iii) discriminatory motive
A discriminatory motive can be shown by demonstration 2 elections (1) a statute will have a disproportionate impact on a protected class and (ii) the statute is a product of a discriminatory purpose

13

Constitutional Law

Non Mutual (Offensive) Collateral Estoppel PROHIBITED

NMCE PROHIBITED. Cannot assert NMCE against party who did not participate (themselves or their privy) in the prior litigation.

Example:

(Defensive)
C. Same D, different Ps
P1 v D (alleging securities fraud)
D wins (no fraud)
P2 v D (alleging same securities fraud)
D asserts CE defensively against P2
Not possible b/c P2 didn’t litigate issue in suit 1, can’t be estopped (unless in privy with P1).

(offensive)
Example:
D. Same P, different Ds
P v D1 (alleging securities fraud)
P wins (it was securities fraud)
P v D2 (alleging same securities fraud)
P asserts CE offensively against D2
Not possible b/c D2 didn’t litigate issue in suit 1, can’t be estopped (unless in privy with D1).

14

Constitutional Law

Non Mutual (Offensive) Collateral Estoppel - MAYBE OK

NMCE MIGHT BE OK. Court may be able to permit NMCE b/c asserted against party who lost on issue in prior litigation.

(defensive)
A. Same P, different Ds
P v D1 (alleging securities fraud)
D1 wins (no fraud)
P v D2 (alleging same securities fraud)
D2 asserts CE defensively against P
Like Blonder-Tongue. P litigated & lost issue in suit 1. Court might be able to permit.

Example

(offensive)
B. Same D, different Ps
P1 v D (alleging securities fraud)
P1 wins (it was securities fraud)
P2 v D (alleging same securities fraud)
P2 asserts CE offensively against D
Like Parklane. D litigated and lost issue in suit 1. Court might be able to permit.

15

Contracts

Offer / Acceptance Mailbox Rule

Unless the offer is an option, the offeror may revoke an offer at any time before the offer has been accepted.

Under the mailbox rule, unless the offer specifies otherwise, notice of acceptance is effective upon dispatch in the mail if a mailed acceptance is invited by the terms of the offer.



Revocation after the acceptance is not enough to terminate a contract

An offer for "prompt shipment" can only be accepted by prompt shipment of goods

16

Civil Procedure

Appealability and Review

Standards of Review

Abuse of Discretion
Evidence is irrelevant or highly prejudicition and should be excluded is within the trial courts discretion because it requires an understanding of the entire case and the facttual context in which the evidence is being offered.

Eorrneous
Applied when reviewing findings of fact made by he trial court in a bench trial. Does not apply to judicial rulings on the admissibility of evidence in a jury truly

De Novo
Applied on issues of law

Harmless Error
Applied when it is determined that a trial courts erroneous admission of evidence did not affect any party's substantial right . it is a conclusion an appellate court reaches are reviewing and determine the impact of than erroneously evidentiary ruling -- the the standard of review that the court applies to determine whether it was erroneous to admit the evidence in the first instance

17

Civ Pro

Jury Trials

When a party objects to an instruction, the party must distinctly state the matter objected to and grounds for the objection. A party's objection must aid the court in determine whether the instruction is improper and how a defect can be cured.

18

Constitutional Law

Forum selection Clauses

No Federal Law gives automatic effect to forum selection clauses

Federal courts can weigh all factors including the presence of a forum selection clause, when deciding a motion to transfer under the federal transfer statute. This is true even when the lawsuit is based on diversity jurisdiction

19

Constitutional Law

Appointments Clause Article II

Members of federal boards must be appointed in a manner consistent with the appointmnets clause of article iii. they must be appointed in this manner because they are members of the executive branch.

Congress may NOT appoint members of an executive branch agency (one with admin or eforcement powers since enforcement is an executive power). It can create the agency, but appointment of its leaders must comport with article IiI, concerning the executive branch

20

Constitutional Law

Necessary and Property Clause

Does not allow Congress to exercise executive branch powers

21

Constitutional Law

Obligations of Contracts Clause

Prohibits the government from legislatively impairing existing contracts

22

Criminal Law

Larceny

The unlawful taking and carrying away of another's property, without owner's consent, with the intent to permanently deprive them of ownership

the smallest asportation is enough to justify the carrying away requirement

Attempted larceny will merge into larceny when completed.

23

Contracts

Substantial Performance

Substantial performance is not applicable where performance is subject to an express condition

24

Contracts

Irrevocable Waiver of Condition

The nonoccurance of an express condition will discharge the contractual obligation of a party who is subject to the condition, UNLESS the nonoccurance of the condition has been waived by that party. Once the waiver has been given, it CANNOT BE REVOKED where it is made after the time for the fulfillment of the condition has passed or whether the other party has relied on the waiver.

25

Evidence

Evidence of other crimes, wrongs or acts is o admissible to prove the character of a person in order to show action therewith. HOWEVER, evidence of oter crimes can be admitted to show opportunity, plan, intent, preparation.

26

Real Property

Titles

Dead Buyer

Deeds must be in writing, signed by the grantor, and adequately ID the parties and the land. In order for a deed to be valid, it must correctly identify of the parties, and it is void if it fails to do so.

If the grantee listed on the deed is dead at the time teh deed is delivered, the deed is deemed not to identify the parties correctly, and therefore to be void.

27

Constitutional Law

Power to Conduct Foreign Affairs

Extends to appoitning and receiving ambassadors, but not controlling state actions to protect them

28

Real property

Vested Remainder

Vested interests are NOT subject to RAP. Interests are vested if there is no condition attached which must be satisfied; the holder of the vested remainder has a present or certain right to take prosssession of the property when the prior estates termianted.

a Remainder is vested if it is created in a born or ascertained person and is not subject to a condition precedent.

29

Constitutional Law

Article I

Congress has the power to create special Courts under Article 1, and the judges for those courts do NOT have the protections of Article III, such as life tenure and the guarantee of no reduction of salary

30

Contracts

Lost Profit Damamges

To recover lost profit damages, the plaintiff must prove that the losses suffered were SUBSTANTIALLY CERTAIN and not simply speculative.

Cerrtainty, NOT FORESEEABILITY is the proper limited test in this situation