Everything Flashcards
Cumulative Review (104 cards)
1
Q
HYPO
D crashes into P’s car. D tells P, “That was my fault. I’ll pay your medical bills.”
Is D’s admission of fault admissible in trial?
A
Yes,
D’s admission of fault is admissible as an opposing-party statement, and is not protected.
However, D’s offer to pay P’s medical bills is not admissible.
2
Q
In a non-disputed claim, evidence of offers to settle are ___________ (admissible or inadmissible) to prove fault or damages.
A
In a non-disputed claim, evidence of offers to settle are Admissible to prove fault or damages.
3
Q
If the federal government passes a statute that treats two similarly situated people differently, the statute likely violates the _______ ________ ______.
A
If the federal government passes a statute that treats two similarly situated people differently, the statute likely violates the Equal Protection Clause.
4
Q
Standing requires Causation and ________.
This requirement prohibits the court from issuing __________ opinions.
Standing
A
Standing requires Causation and Redressability.
This requirement prohibits the court from issuing advisory opinions.
Standing
5
Q
While General Propensity evidence is inadmissible, Habit evidence is admissible if it meets two elements:
- ___________
- ___________
A
While General Propensity evidence is inadmissible, Habit evidence is admissible if it meets two elements:
- Frequency
- Particularity (Specific set of circumstances)
6
Q
Under _________ Scrutiny, the Court will look to the government’s actual purpose in enacting a law or statute.
A
Under Strict Scrutiny, the Court will look to the government’s actual purpose in enacting a law or statute.
7
Q
A criminal defendant may introduce character evidence of the defendant’s own ___________ character trait.
A
A criminal defendant may introduce character evidence of the defendant’s own PERTINENT character trait.
8
Q
3rd Party Standing: A plaintiff cannot assert claims of others (3rd parties) not before the Court, with 3 exceptions:
- ______
- ______
- ______
Standing
A
3rd Party Standing: A plaintiff cannot assert claims of others (3rd parties) not before the Court, with 3 exceptions:
- Close Relationship (between P & 3rd-party)
- 3rd-Party is Unlikely or Unable to Assert Their Own Rights
- Organization Suing on Behalf of Its Members
Standing
9
Q
_______________________ protects citizens against federal government interference with citizens’ rights to life, liberty , or property interests, without notice and fair hearing.
A
Procedural Due Process protects citizens against federal government interference with citizens’ rights to life, liberty , or property interests, without notice and fair hearing.
10
Q
In her defense case, a criminal defendant calls a witness to testify as to the defendant’s character.
On cross-examination, the prosecution asks the defense witness about numerous bad acts by the defendant. The witness denies knowledge.
May the prosecution introduce extrinsic evidence regarding the criminal defendant, in order to impeach the witness?
A
No, all extrinsic evidence is inadmissible on cross-examination of the character witness. The prosecutor must accept the witness’s answer.
11
Q
In a criminal defendant’s defense case, the defendant may call witnesses to introduce evidence of the defendant’s character.
What methods of proving character may the defendant bring?
A
The defendant may present Opinion evidence or Reputation evidence, but not evidence of Specific Acts.
12
Q
When impeaching a witness on the basis of Witness’s sensory defects, may extrinsic evidence be permitted?
A
Yes, extrinsic evidence is permitted in impeaching a Witness for sensory defect.
13
Q
When impeaching a witness on the basis of Criminal Convictions, would the below conviction be admissible or inadmissible?
Felony Embezzlement, convicted 15 years ago, released from prison 9 years ago
A
Admissible.
The general rule for admissibility is that it must be within 10 years, from either conviction or release from prison, whichever is later.
14
Q
Exception to Generalized Grievances
- A taxpayer has standing to challenge ______…as violating the ____________ ____________.
Standing
A
Exception to Generalized Grievances
- A taxpayer has standing to challenge government expenditures pursuant to federal (or state and local) statutes as violating the Establishment Cause.
Standing
15
Q
Rational Basis requires a law be ____________ related to a(n) _______ government ______________.
A
Rational Basis requires a law be rationally related to a legitimate government purpose.
16
Q
Remedial Measures are generally excluded, but are admissible under what exceptions?
A
Exceptions
- Feasibility
- Destruction of Evidence
- Impeachment
- Control
17
Q
Under Intermediate Scrutiny, a law is upheld if it is _________ related to a(n) _______ government ______.
A
Under Intermediate Scrutiny, a law is upheld if it is substantially related to an important government purpose.
18
Q
_____________ is the question of whether a federal court may grant pre-enforcement review of a statute or regulation.
A
Ripeness is the question of whether a federal court may grant pre-enforcement review of a statute or regulation.
19
Q
The Best Evidence Rule (aka Original Writings Rule) requires that a party either:
- _____________; or
- _____________
A
The Best Evidence Rule (aka Original Writings Rule) requires that a party either:
- Produce the original document; or
- Account for the Absence of the original
20
Q
Under Strict Scrutiny, a law is upheld if it is ____________ to achieve a(n) _______ government ______.
A
Under Strict Scrutiny, a law is upheld if it is necessary to achieve a compelling government purpose.
21
Q
Is the below admissible as Habit, or inadmissible as General Propensity?
“X always wears her seatbelt when she drives.”
A
Admissible as Habit, because contains frequency (“always”) and specificity (“wears her seatbelt when she drives”).
22
Q
Although it is a federal power, states may regulate interstate commerce subject to the negative implications of the __________ ___________.
The negative implications general prohibit states from …..
A
It is true that although it is a federal power, states may regulate interstate commerce subject to the negative implications of the Commerce Clause.
23
Q
The negative implications of the Commerce Clause (also called Dormant Commerce Clause) generally prohibit states from:
- ______________
- _____________
A
The negative implications (also called Dormant Commerce Clause) generally prohibit states from:
- Discriminating against out-of-state business, or
- Unduly burdening interstate commerce.
24
Q
Are Remedial Measures taken PRIOR to the accident admissible or inadmissible?
A
Admissible.
Remedial Measures taken PRIOR to the accident are not excluded under FRE 407.
25
The __________________ protects two similarly situated individuals from being treated differently by the federal government.
The Equal Protection Clause protects two similarly situated individuals from being treated differently by the federal government.
26
Respondeat superior is a type of vicarious liability based on an employment relationship.
Under the doctrine of respondeat superior, an employer will be vicariously liable for her employee’s torts only if ___________________________.
Respondeat superior is a type of vicarious liability based on an employment relationship.
Under the doctrine of respondeat superior, an employer will be vicariously liable for her employee’s torts only if the torts were committed within the scope of the employment relationship.
27
If the government violates the Equal Protection Clause by treating differently two otherwise similarly situated individuals by a law that discriminates on the basis of Gender, the law is subject to what level of scrutiny?
Intermediate Scrutiny.
Intermediate Scrutiny applis to Equal Protection violations on the basis of Gender.
28
If the Federal Government passes a law that denies ALL citizens the ability to exercise a fundamental right, the Federal Government has violated citizens' _____________________ rights.
Substantive Due Process rights.
If the Federal Government passes a law that denies ALL citizens the ability to exercise a fundamental right, the Federal Government has violated citizens' Substantive Due Process rights.
29
What broad rights are protected by Substantive Due Process?
1. ____________
2. ____________
3. ____________
What broad rights are protected by Substantive Due Process?
1. Privacy Rights (think C.A.M.P.E.R.S.)
2. Right to Travel
3. Right to Vote
30
The prosecution may rebut a criminal defendant's character evidence in two ways:
1. ______________
2. _____________
The prosecution may rebut a criminal defendant's character evidence in two ways:
1. Call its own witnesses to testify about the defendant's pertinent bad character
2. Cross-examining Defendant's character witnesses
31
As a general rule: Federal Government limitations on the Content of citizens' First Amendment rights to free speech are always analyzed under what level of scrutiny?
____________________
Strict Scrutiny.
Federal Government limitations on the Content of citizens' First Amendment rights to free speech are always analyzed under Strict Scrutiny.
32
Federal Government regulation of citizens' free speech in a non-public forum is valid if the regulation is:
1. ______________
2. _____________
Federal Government regulation of citizens' free speech in a non-public forum is valid if the regulation is:
1. Viewpoint neutral
2. Reasonably related to a legitimate government interest
33
If the Federal Government passes a statute that limits the rights of citizens to privately practice their religion, the Government has likely committed a violation of citizens' rights to ____________________.
Free Exercise.
If the Federal Government passes a statute that limits the rights of citizens to privately practice their religion, the Government has likely committed a violation of citizens' rights to Free Exercise.
34
The Commerce Power enables Congress to regulate what 3 areas?
1. ____________
2. ____________
3. ____________
Under its Commerce Power, Congress may regulate:
1. Channels of interstate commerce
2. Instrumentalities of interstate commerce
3. Economic activities that have a substantial effect on interstate commerce.
35
P1. If a State law discriminates against out-of-staters' right to earn their livelihood, and the state law violates what constitutional protection?
The out-of-staters constitutional rights protected by the _________.
P2. The State law does not violate the above right, however, if the law is ________________.
P1. Privileges & Immunities Clause of Article IV.
Out-of-staters are protected against discrimination with regard to their important economic activities under the Privileges & Immunities Clause of Article IV. Unless...
P2. The State law is necessary to achieve an important government purpose.
If a state law is necessary to achieve an important government purpose, that law does not violate the Privileges & Immunities Clause of Article IV.
36
If the Federal Government deprives a citizen is of an entitlement that citizen is entitled to, the federal government has violated that citizens' rights under __________________.
Procedural Due Process.
If there is an entitlement that is not fulfilled, the government has deprived the citizen of property, protected by the citizens' Procedural Due Process rights.
37
If the government violates the Equal Protection Clause by treating differently two otherwise similarly situated individuals by a law that discriminates on the basis of Race or National Origin, the law is subject to what level of scrutiny?
Strict Scrutiny.
Strict Scrutiny applies to Equal Protection violations on the basis of Race, National Origin, or Religion.
38
Under the doctrine of respondeat superior, an employer is vicariously liable for tortious acts committed by his employees if the tortious acts occur within the scope of the employment relationship.
This includes intentional torts, so long as the below 3 criteria are met:
1. ____________
2. ____________
3. ____________
Under respondeat superior, an employer may be liable for an intentional tortious act committed by an employee, if:
1. Force is authorized in the employment;
2. Friction is generated by the employment; or
3. The employee is furthering the business of the employer.
39
The Contract Clause of the Constitution applies to ________________.
A. The Federal Government only
B. State Governments only
C. Both Federal and State Government
B. State Governments only
The Contract Clause applies only to state governments, and not to the federal government.
The clause states that, "No State shall...pass any...Law impairing the Obligation of Contracts..."
A state may not substantially impair any contracts to which it is party and the impairment does not meet the various exceptions recognized by the Court.
40
The 'Enabling Clause' of the Fourteenth Amendment is grant a of power to ______________ to adopt legislation.
A. Congress
B. The States
C. Both Congress & the States
A. Congress
The 'Enabling Clause' of the Fourteenth Amendment is grant a of power to Congress to adopt legislation.
41
What are the requirements for an out of court statement to be admissible as a Dying Declaration in court?
1. Speaker must have believed that her death was imminent
2. The statement was concerning the cause/circumstances of the speaker's death
3. The speaker is unavailable to testify
4. The case is a civil case, or a criminal case for homicide
42
What is meant by the implied covenant of Marketable Title?
Marketable title is title "reasonably free from doubt, which a reasonably prudent buyer would accept."
While it need not be perfect title, a Marketable Title must not present the buyer with an unreasonable risk of litigation. Generally, this means an unencumbered fee simple with good record title.
43
If a potential Buyer dies before accepting an offer, that offer is:
A. Acceptable by the Buyer's heirs
B. Terminated
B. Terminated.
Death or incapacity of either party after the offer, and before acceptance, terminates the offer.
44
Four kinds of Irrevocable Contract are:
1. __________________
2. __________________
3. __________________
4. __________________
1. Option
2. Firm Offer Rule
3. Reliance
4. Unilateral Contract (Start of Performance)
45
The Mirror Image Rule applies to:
A. Common Law Only
B. UCC
C. Both Common Law and UCC
D. Only in Equity
A. Common Law Only
The Mirror Image Rule is only applicable to Common Law.
46
The "Mailbox Rule" provides that:
Offers are effective when they are ___________.
Acceptances are effective when they are ___________.
Communications other than offers or acceptances are effective when they are ___________. .
Per the "Mailbox Rule":
Offers are effective when they are RECEIVED.
Acceptances are effective when they are SENT (placed in the mailbox).
All other communications are effective when RECEIVED.
47
In Contracts, Consideration is defined as _________ __ _____ ____________.
Consideration is defined as Bargained For Legal Detriment.
48
1. What interest does A hold, based on the below?
"To A, so long as the premises are used for organic farming."
2. Is A's interest devisable?
1. A holds a Fee Simple Determinable.
2. Yes, all Fee Simple Determinable's are devisable, descendible, and alienable, but will always be subject to the condition.
49
1. What interest does A hold, based on the below?
"To A, but if X occurs, Grantor reserves the right to re-enter and re-take."
2. What interest does the Grantor have?
1. A holds a Fee Simple Subject to Condition Subsequent.
| 2. Grantor holds a Right of Entry.
50
The right of a mortgagor to recover the land by paying the amount overdue on the mortgage, plus interest, at any time before the foreclosure sale, is known as __________________.
Equitable Redemption.
Equitable redemption is the right of a mortgagor to recover the land by paying the amount overdue on the mortgage, plus interest, at any time before the foreclosure sale.
51
The order of priority for allocating mortgage foreclosure sale proceeds is as follows, from first to last:
1. ____________
2. ____________
3. ____________
4. ____________
The order of priority for allocating mortgage foreclosure sale proceeds is as follows, from first to last:
1. Expenses of the sale, including attorneys’ fees, and court costs;
2. The principal and accrued interest on the foreclosing party’s loan;
3. Any junior lienors in the order of their priority; and then
4. The mortgagor.
In many cases, no surplus remains after the principal debt is paid off.
52
Prior inconsistent statements made _______________ are considered nonhearsay under the Federal Rules as long as the declarant is now testifying and subject to cross-examination).
...under oath at a prior trial or proceeding, or in a deposition...
Prior inconsistent statements made under oath at a prior trial or proceeding, or in a deposition, are considered nonhearsay under the Federal Rules as long as the declarant is now testifying and subject to cross-examination (i.e., willingly responding to questions).
53
Without waiting for discovery request to be submitted by the opposing party, a party ___ provide to the other parties copies or descriptions of documents that are in the disclosing party’s possession or control and that the disclosing party may use to supports its claims or defenses.
Must.
Without waiting for discovery request to be submitted by the opposing party, a party must provide to the other parties copies or descriptions of documents that are in the disclosing party’s possession or control and that the disclosing party may use to supports its claims or defenses.
54
The covenant of quiet enjoyment is breached when....
...the grantee is evicted by a third party with paramount (better) title.
The covenant of quiet enjoyment is breached when the grantee is evicted by a third party with paramount title, i.e., title or ownership of the estate conveyed that is superior to the grantor’s title.
55
The covenant of right to convey is breached if...
The covenant of right to convey is breached if the grantor lacks title, i.e., ownership of the estate conveyed, at the time of the grant.
56
Without waiting for discovery request to be submitted by the opposing party, a party must provide to the other parties....
...copies or descriptions of documents that are in the disclosing party’s possession or control and that the disclosing party may use to supports its claims or defenses.
Without waiting for discovery request to be submitted by the opposing party, a party must provide to the other parties copies or descriptions of documents that are in the disclosing party’s possession or control and that the disclosing party may use to supports its claims or defenses.
57
The United States Surgeon General was cited for contempt for refusing to answer questions as part of a Senate investigation regarding an issue in the Food and Drug Administration.
His contempt citation will be dismissed if he can show what?
His contempt citation will be dismissed if he can show that the questions do not relate to any matter concerning which the Senate may legislate.
Congress’s power to investigate is limited to matters on which it can legislate.
Therefore, if the Surgeon General can demonstrate that the questions concerned matters upon which Congress could not legislate (not an enumerated power under Article I, Section 8), then this contempt citation must be dismissed.
58
What is the prima facie case for invasion of privacy involving public disclosure of private facts?
PF for Invasion of Privacy involving public disclosure of private facts:
1) The plaintiff must show that the publication was of private information about the plaintiff; and
2) That its public disclosure would be highly offensive to a reasonable person.
NOTE: There is no liability for publication of matters occurring in a public place.
59
A plaintiff is suing a defendant in federal court for personal injuries arising out of an automobile accident. The defendant’s automobile insurance policy covers the accident.
Must the defendant disclose the existence of the insurance policy?
Yes, the defendant must disclose the existence of the insurance policy under the Federal Rules, which expressly permit discovery of insurance agreements as an initial disclosure.
60
Why is the grand jury testimony of an unavailable declarant not admissible as former testimony against the accused at trial?
Grand jury testimony is not admissible, because the party against whom the former testimony is offered must have had the opportunity to develop the testimony at the prior proceeding by direct, cross-, or redirect examination of the declarant.
Grand jury proceedings do not provide the opportunity for cross-examination.
Under the former testimony exception to the hearsay rule, the testimony of a now unavailable witness given at another hearing is admissible in a subsequent trial as long as there is a sufficient similarity of parties and issues so that the opportunity to develop testimony or cross-examine at the prior hearing was meaningful.
61
What is the "firefighter's rule" in Torts?
Under the common law "firefighter's rule," firefighters, police officers and other public-safety personnel who enter a person's property to perform their safety duties can never recover for injuries caused by the inherent risks of their jobs.
62
When may a potential buyer of real property bring a challenge to the seller's claim of marketable title?
The time to challenge marketable title is prior to the buyer's acceptance of the deed.
63
A defendant was on trial for tax evasion. The IRS, seeking to establish the defendant's income by showing his expenditures, called on the defendant's attorney to produce records showing only how much the defendant had paid his attorney in fees.
Should the demand for the attorney's fee records be upheld?
Yes, because it calls for relevant information not within the attorney-client privilege.
The attorney-client privilege applies only to confidential communications made for the purpose of facilitating legal representation of the client, and the amount the defendant paid in legal fees does not qualify as such a communication. Fee arrangements and payments are generally outside the protection of the attorney-client privilege.
64
An anticipatory repudiation occurs when a party....
An anticipatory repudiation occurs when a party unequivocally manifests an intention not to perform or an inability to perform.
65
What is the general rule regarding the constitutionality of a numerical set aside ("state gov. pledges to hire x% of minority candidates per year") based on racial classification, if the government's stated purpose is to remedy past discrimination?
Numerical set asides require clear proof of past discrimination, beyond generalities.
The general rule is that racial classification that benefit minorities are permitted to remedy past discrimination (i.e. remedying past discrimination is a compelling government interest) but numerical set asides require clear proof of past discrimination.
66
What is the prima facie for the crime of Robbery?
Robbery is larceny plus force or threat of immediate harm.
Larceny is the wrongful taking and carrying away of another's tangible personal property without consent and with the intent to permanently deprive.
67
What is the prima facie for the crime of Forgery?
Forgery requires making or altering a writing with apparent legal significance so that it is false and with the specific intent to defraud.
68
If a defendant mistakenly believes an item belongs to the defendant, and the defendant mistakenly takes that item and carries it away from the rightful owner, does the defendant's mistake of fact negate the defendant's criminal intent for the crime of larceny?
Yes.
If the defendant believes that the property is her property (even if the belief is unreasonable, i.e. unreasonable mistake of fact), the defendant is not guilty of larceny.
69
When is it permissible for a party's attorney to issue interrogatories prior to the Rule 26(f) conference?
The rule is that discovery tools are only available after Rule 26(f) conference unless the court orders or the parties stipulate otherwise.
The attorneys of record and all unrepresented parties that have appeared in the case are jointly responsible for arranging the conference, for attempting in good faith to agree on the proposed discovery plan, and for submitting to the court within 14 days after the conference a written report outlining the plan.
70
An accomplice to a crime is one who.....
An accomplice is someone who, with the intent that the crime be committed, aids, counsels, or encourages the principle before or during the commission of the crime. Mere presence alone, however, is never enough for accomplice liability.
71
What level of scrutiny is applied to government regulations of truthful commercial speech?
Truthful commercial speech may only be regulated if the regulations satisfy intermediate scrutiny:
(1) serves substantial government purpose,
(2) directly advances that interest and
(3) narrowly tailored to that interest.
72
When does the equitable doctrine of 'quasi-contract' arise?
When contract theory fails to produce a just result, quasi-contract is available as an equitable doctrine to prevent the unjust enrichment of one party. A quasi-contract arises where one party confers a benefit upon the other with the reasonable expectation that they will receive payment for the benefit. Unlike contract damages, however, the measure of damages under quasi-contract is restitution, or the prevention of unjust enrichment.
73
he First Amendment states "Congress shall make no law...abridging the freedom of speech." This was made applicable to states and local governments through the _______ Amendment.
Fourteenth Amendment.
The First Amendment was made applicable to states and local governments through the Fourteenth Amendment.
74
A jury demand must be made in writing no later than __ ____ after the latest pleading raising questions of law.
A jury demand must be made in writing no later than 14 days after the latest pleading raising questions of law. Amendments to pleadings are allowed once as a matter of course if before responsive pleading or by leave of the court.
75
When is a counterclaim compulsory?
| e.g., the claim will considered waived if not asserted
A counterclaim that arises out of the same transaction or occurrence is compulsory.
If such a claim is not asserted in the defendant's answer, it will be considered waived.
Additionally, the defendant must plead affirmative defenses (e.g., statute of limitations, statute of frauds, res judicata, assumption of risk, fraud, self-defense, etc.) in the answer or the defense will be waived.
76
A third-party beneficiary can enforce a contract only after his rights have vested.
When do a third-party beneficiary's rights vest?
A third-party beneficiary can enforce a contract only after his rights have vested. Rights vest when the beneficiary:
(i) manifests assent to the promise in a manner invited or requested by the parties;
(ii) brings suit to enforce the promise; or
(iii) materially changes position in justifiable reliance on the promise.
An agreement affecting a third-party beneficiary may be modified without the third party’s consent if his rights have not yet vested.
77
What is a delegation?
And who is responsible to the Obligee if after a delegation, there is no performance of the contracted service?
A delegation exists when one party to a contract transfers the duty to perform under the contract to a third party.
A delegator is the party who transfers the obligation to perform, a delegatee is the third party who agrees to perform under the contract in place of the delegator and an obligee is the other party to the contract.
The delegator is always liable to the obligee if the delegatee fails to perform.
Alternatively, if there was consideration for the delegation, the obligee could choose sue the delegatee for failure to perform since the obligee is a third party beneficiary to the delegator-delegatee contract.
78
What are the obligations of a life tenant in paying taxes on land?
The life tenant must pay taxes on the land to the extent of the income or profits derived from the land or, if none, to the extent of the reasonable rental value of the land.
79
What is an assignment?
What is the legal relationship between an assignee and a landlord?
An assignment is a transfer by the lessee of her entire interest (i.e. the entire remaining term of the lease).
Privity of estate exists between landlord and assignee, which gives the landlord and assignee the right to sue each other since both are liable for respective covenants that run with the land.
80
What is a sub-lease?
What is the legal relationship between a sublessee and a landlord?
A sublease occurs where the tenant transfers her rights and obligations to a subtenant for a portion of the term of the lease (i.e. a period of time shorter than that which remains on the lease).
A sublessee has no legal relationship with the landlord and is not personally liable to her for rent (i.e. no privity of estate and no privity of contract).
81
What right is provided to landowners by lateral and subjacent support?
Lateral and subjacent support, in the law of property, describes the right a landowner has to have that land physically supported in its natural state by both adjoining land and underground structures.
If a neighbor's excavation or excessive extraction of underground liquid deposits causes subsidence, the neighbor will be subject to liability in a tort claim.
82
What is the effect of Joint and Several Liability?
If more than one person is a proximate cause of the plaintiff's injury and the harm is indivisible, then each defendant is liable for the entire harm.
This is referred to as joint and several liability.
83
What is the M’Naghten rule?
Under the M'Naghten rule, a criminal defendant is not guilty by reason of insanity if, at the time of the alleged criminal act, the defendant was so deranged that she did not know the nature or quality of her actions or, if she knew the nature and quality of her actions, she was so deranged that she did not know that what she was doing was wrong.
84
Intoxication is __________ if it results from the taking of an intoxicating substance without knowledge of its nature, under direct duress imposed by another, or pursuant to medical advice.
A. Voluntary
B. Involuntary
Involuntary.
Intoxication is involuntary if it results from the taking of an intoxicating substance without knowledge of its nature, under direct duress imposed by another, or pursuant to medical advice.
85
What is the effect of non-use on an easement?
Mere nonuse will not terminate an easement.
To terminate an easement, the nonuse must rise to the level of abandonment, which requires physical action by the easement holder that manifests an intention to permanently abandon (e.g., construction of a structure on the easement holder’s property that would make it impossible to use the easement).
86
The Privileges and Immunities Clause of Article IV prohibits states and municipalities from _______________________________________.
The Privileges and Immunities Clause of Article IV prohibits states and municipalities from discriminating against residents of other states.
Not all discrimination is prohibited—only that which substantially interferes with important commercial activities or civil liberties.
The Supreme Court has stated that the Privileges and Immunities Clause prohibition on discriminating against nonresidents may be overcome if there is substantial justification for the discrimination. The exception will apply if nonresidents are causing a problem (e.g., unemployment) and the discrimination is the least restrictive means of combating the problem.
87
When does a court have Federal Question jurisdiction over a claim?
Federal Question jurisdiction is available when the plaintiff, in his well-pleaded complaint, alleges a claim that arises under federal law.
88
Congress has the power to lay taxes under Article I, Section 8, and a tax measure will usually be upheld if...
1) _________________________
2) _________________________
Congress has the power to lay taxes under Article I, Section 8, and a tax measure will usually be upheld if:
1) The tax bears some reasonable relationship to revenue production; or
2) If Congress has the power to regulate the taxed activity.
89
What is the result if a Seller unlawfully forges a deed and conveys property to an unknowing Buyer for value? (Assume buyer is a BFP)
A void deed will be set aside even if the property has passed to a bona fide purchaser.
So the Buyer's claim is not valid, even though Buyer is a BFP.
90
What is the 'unilateral approach to Conspiracy' under the Model Penal Code?
Under the unilateral approach adopted by the Model Penal Code, the crime of conspiracy requires that only one party have genuine criminal intent, and may be shown by proof that the defendant agreed with another to commit a crime, even if the other person does not share the commitment.
91
What does it mean if a term is “collateral” to a written agreement?
A “collateral” term is one that is related to the subject matter of the agreement but is not part of the primary promise.
92
With respect to a completely integrated written agreement, parol evidence can be received to aid a fact-finder when there is a dispute as to __________.
the meaning of an uncertain/ambiguous term within the agreement.
If there is uncertainty or ambiguity in the written agreement’s terms or a dispute as to the meaning of ambiguous terms, parol evidence can be received to aid the fact-finder.
93
In interpreting and enforcing a contract, what does it mean to say that a writing is an “integration”?
The writing is the final expression of the parties’ bargain.
An “integration” occurs when the parties to a contract express their agreement in a writing with the intent that it embody the final expression of their bargain.
94
Despite the parol evidence rule, a party to a fully integrated written contract can always offer evidence __________.
Attacking the agreement’s validity at the time of formation.
The parol evidence rule prohibits admissibility of extrinsic evidence that seeks to vary, contradict, or add to a complete integration.
95
An agreement that a contract will not become binding until a certain condition has occurred is a ______ ______ to the contract's effectiveness.
Condition Precedent.
An agreement that a contract will not become binding until a certain condition has occurred is a condition precedent to the contract's effectiveness.
96
Traditionally, performing/promising to perform an existing legal duty is not valid consideration. But there are 5 exceptions. What are they?
1. ____________
2. ____________
3. ____________
4. ____________
5. ____________
The five exceptions are:
1. New/different consideration is promised
2. Promise to ratify a Voidable Obligation (ex. promise to ratify a contract that was entered as a minor)
3. The preexisting duty was owed to a 3rd Party
4. There is an Honest Dispute as to the duty
5. Unforeseen circumstances have arisen that would be sufficient to discharge a party.
97
What is the effect of the Material Benefit Rule?
Under a modern trend, some courts will enforce a promise under the Material Benefit Rule if:
1) it is based on a material benefit that was previously conferred by the promisee on the promisor, and
2) the promisee did not intend to confer the benefit as a gift.
98
A promise not to sue on a claim can be considered valuable consideration only if ____________________.
The claim is valid or the claimant reasonably and in good faith believes the claim is valid.
A promise not to sue on a claim can be considered valuable consideration only if the claim is valid or the claimant reasonably and in good faith believes the claim is valid.
The reasonable person standard does not apply; the claimant herself must actually believe the claim is valid.
99
Under U.C.C. Article 2, what standard is applied to allow the modification of a sales contract without additional consideration?
Good faith.
Under Article 2, all contract modifications sought in good faith are binding without consideration.
In contrast, at common law, a contract modification generally is unenforceable unless it is supported by new consideration.
100
If, in a sale of goods, the buyer will pick up the goods, when does the risk of loss pass to the buyer?
The risk of loss in this case depends on whether the seller is merchant.
If the seller is a merchant, the risk of loss passes to the buyer when the buyer takes physical possession of the goods.
If the seller is not a merchant, the risk of loss does not pass when the buyer takes physical possession. The risk of loss passes to the buyer upon tender of delivery (i.e., when the goods are ready for pick up at the agreed upon time).
101
Unless properly disclaimed, Warranty of ____________ is included in every contract for the sale of goods.
Warranty of title.
A warranty of title is included in every contract for the sale of goods. Any seller of goods warrants that the title transferred is good, that the transfer is rightful, and that there are no liens or encumbrances against the title of which the buyer is unaware at the time of contracting.
102
Buyer and Seller enter into a written agreement for the sale of a fancy widget for $550.
Prior to the time for delivery and payment, Buyer telephones Seller and states that he can only pay $495. Seller agrees to take that price.
If Buyer tenders $495 to Seller, may Seller sue Buyer for the $55 difference?
No.
The oral modification is effective because the new price is $495. A written contract may be modified orally. However, if the contract is for a sale of goods, the modification must be in writing if the contract as modified is for $500 or more. If the contract as modified is for less than $500, no writing is necessary.
Under the U.C.C., modifications are valid without consideration; thus, the modification is effective even without new consideration.
But as noted above, not all contracts may be orally modified. Under the U.C.C., if the contract as modified is within the Statute of Frauds, the modification must be in writing.
103
Government actions that include sect preferences must meet a ________ ________ standard to be valid under the Establishment Clause.
Strict Scrutiny.
Government actions that include sect preferences must meet a strict scrutiny standard to be valid under the Establishment Clause.
104
___________ neutral regulations are laws that regulate the time, place or manner of all speech.
A. Content
B. Viewpoint
A. Content
Content neutral regulations are laws that regulate the time, place or manner of all speech.
