Lean Sheets Flashcards
1
Q
Business Associations: how do you pierce the corporate veil?
A
- ) directors treat corporation as their alter ego
- ) failure to observe corporate formalities
- ) OR, undercapitalized (fail to maintain sufficient funds for foreseeable liabilities)
2
Q
Business Associations: what is the duty of care?
A
Directors must act with the care of a “prudent person” would conduct her own business.
3
Q
Business Associations: what is the duty of loyalty and how does one breach it?
A
The duty is that directors may not receive an unfair benefit to the detriment of the corporation or shareholders, unless there has been a material disclosure and independent ratification
Breach:
- ) self dealing - director receives unfair benefit in transaction with corporation
- ) usurping corporate opportunities: director receives unfair benefit by usurping an opportunity the corporation would have pursued.
4
Q
Business Associations: what is a Direct shareholder action?
A
Directors breached their fiduciary duty owed to individuals as shareholders.
5
Q
Business Associations: what is a shareholder derivative suit?
A
Shareholders are suing to enforce the corporations win cause if action.
Requirements: contemporaneous stock ownership when chain arise and throughout litigation and demand on bod that they cause corporation to bring a suit.
Demand must be rejected or lapse within 90 days,
6
Q
Business Associations: what is the rule concerning liability of a principal for tort if agency?
A
The principal will be liable for torts committed by agent if the principal agent relationship exists and the tort was committed by agent within the scope of the relationship.
7
Q
Business Associations: what is a frolic?
A
New journal, outside scope of employment
8
Q
Business Associations: what is a detour?
A
A mere departure, within scope of employment
9
Q
Conflict of Laws: where do these questions appear?
A
Generally not stand alone topics, found embedded in other subjects
10
Q
Conflict of Laws: what is the “rendering state?”
A
The state handing down judgement
11
Q
Conflict of Laws: what is the “Recognizing State?”
A
State called upon to recognize and enforce the judgment from either sister states or a foreign country,
12
Q
Conflict of Laws:what is the two step analysis concerning sister state judgments?
A
- ) is the judgment entitled to full faith and credit?
2. ) if answer is no, deny recognition
13
Q
Conflict of Laws: how are the three “Full Faith and Credit” requirements satisfied?
A
- ) Rendering state must have had valid jdx over both parties and subject matter, ( jdx can be attacked once - either in rendering or recognizing state court proceeding.
- ) must be on the merits (includes default and consent judgment)
- ) must be final. If modifiable (order for future alimony, child support) no FFC, but usually enforce under comity.
14
Q
Contracts: what does the UCC govern?
A
UCC Art. 2 governs the sale of goods, with applicable
rules also applying to merchants.
15
Q
Contracts: what does the common law govern?
A
Contracts other than the sale of goods.
16
Q
Contracts: what rule governs mixed contracts?
A
Pre-dominate Purpose Test - what is the more important part of the deal? Except divided contracts, and then both the UCC and common law govern.
17
Q
Contracts; What is a unilateral contract?
A
Offer expressly required performance as method for acceptance.
18
Q
Contracts: what is a divisible contract?
A
Performance is divided into 2 parts, one party delivers and the other party pays…monthly type thing.
19
Q
Contracts: what is quasi-contract?
A
equitable remedy when K results unfair. Prevents
unjust enrichment.
20
Q
Contracts: what are the requirements of an offer?
A
- ) manifestation of a present intent to contract
- ) demonstrated by promise, undertaking, or commitment,
- ) communicated to an identified offeree.
21
Q
Constitutional Law: What is the test for standing?
A
- ) Personal and Direct injury
- ) Causation
- ) Redressibility
(Pickled Doughnuts Case Reflux)
22
Q
Constitutional Law: What Political Questions will SCOTUS refuse to hear?
A
- ) Challenges to amendments
- ) Foreign Policy
- ) Republican form of gov’t
- ) Impeachment
- ) Partisan gerrymandering
23
Q
Constitutional Law: What does the 11th Amendment do?
A
Protects states against lawsuits in federal courts.
Exceptions: Unless the federal gov’t is bringing the suit, unless the state waives and allows itself to be sued.
24
Q
Constitutional Law: What is ripeness?
A
Some violation of law or when nothing to be gained with actual violation.
25
Constitutional Law: What is Mootness?
It must be a live controversy, can't be something that is done. (Exception: wrongs capable of repetition but evading review - class actions)
26
Constitutional Law: What are the Commerce Powers?
1. ) Gov't can regulate channels of interstate commerce
2. ) Gov't can regulate the instrumentalities of interstate commerce
3. ) An intrastate activity if it has a substantial effect on interstate commerce (aggregate - think of the wheat farmer)
27
Constitutional Law: What is the dormant commerce clause?
States can regulate commerce in areas where the federal government may not, as long as it doesn't discriminate or unduly burden interstate commerce.
28
Constitutional Law: Tell me about the "General Welfare"
applies to congress' ability to tax and spend ONLY. (The rest of just the preamble).
29
Constitutional Law: How many days does the president have to Veto a bill sent from Congress?
10 days.
30
Constitutional Law: What is the extent of the President's pardon power?
Only for federal crimes (not state). Only criminal claims, not civil, and not for impeachment.
31
Constitutional Law: What is required for Impeachment?
High crime such as treason, bribery & related misdemeanors. Requires a majority house vote and conviction in the senate by 2/3.
32
Constitutional Law: What is the Privileges and Immunities Clause?
A state CANNOT deny citizens of other states of the privileges and immunities it accords its own citizens. (With the exception of stupid shit, like hunting licenses).
33
Constitutional Law: What is rational basis?
rationally related to a legitimate government interest.
34
Constitutional Law: What is intermediate scrutiny?
Law must be substantially related to an important government interest. Must be narrowly tailored to achieve the objective.
35
Constitutional Law: What is strict scrutiny?
Law must be necessary to achieve a compelling state interest. Using the least restrictive means necessary to achieve the objective.
36
Constitutional Law: what type of scrutiny does race and national origin receive?
Strict scrutiny
37
Constitutional Law: which scrutiny does gender receive?
Intermediate scrutiny
38
Contracts: to what does the UCC article 2 apply?
Governs the sale of goods, with applicable rules also applying to merchants,
39
Contracts: what type of goods are subject to common law?
Contracts other than the sale of goods. (Services)
40
Contracts: what are mixed contracts?
Contracts that deal with both UCC and non UCC items. Use predominate purpose test - What is the most important part of the deal?
41
Contracts: what are unilateral contracts?
The offer is expressly requires performance as the method of acceptance. (Lost dog reward)
42
Contracts: what is an option contract?
Agreement to leave open an offer in exchange for consideration.
43
Contracts: what constitutes an offer?
1. ) a manifestation of a present intent to contract, demonstrated by promise, undertaking, or commitment.
2. ) definite and certain terms
3. ) communicated to an identified offeree.
44
Contracts: what should always be included in a UCC contract for the sale of goods?
A description and quantity.
Price is not needed
45
Contracts: can you revoke an option contract?
No revocation, terms dictate
46
Contracts: can you revoke a UCC firm offer?
No, for up to 3 months if offer to buy or sell goods, must be signed, written promise to keep open and the party is a merchant.
47
Contracts: how does contract revocation apply to detrimental reliance?
No revocation if reasonably foreseeable detrimental reliance.
48
Contracts: What is the MBE rule about irrevocable offers?
Cannot revoke once performance has started.
49
Contracts: what is acceptance?
A manifestation of assent to the terms of an offer in the manner prescribed or authorized by the offer.
50
Contracts: what does the “Mailbox Rule?”
Acceptance is effective when mailed, all else when received.
51
Contracts: what happens if the seller sends the wrong goods?
Unless there’s an explanation from the seller, it is treated as a counter offer.
52
Constitutional Law: What are the 2 types of Due Process?
Procedural and Substantive.
53
Constitutional Law: What test is applied to content-based restrictions on free speech?
Strict Scrutiny. Narrowly tailored to serve a compelling governmental interest.
54
Constitutional Law: What test is applied to Time, Place, Manner restrictions?
Narrowly tailored to serve a compelling governmental interest.
55
Constitutional Law: What test is applied to Prior Restraints of speech?
Strict Scrutiny
Results in a preliminary injunction if the law or regulation passes SS.
56
Constitutional Law: What is the test for Symbolic Speech? (Conduct that communicates)
Intermediate Scrutiny: Important state interest independent of suppressing the message and the impact on the communication is no greater than necessary.
Flag Burning, draft card, nude dancing.
57
Constitutional Law: What is the test for Commercial Speech?
Intermediate Scrutiny - serves a substantial gov’t interest - directly advances that interest - is narrowly tailored to serve that interest. (Doesn’t need to be least restrictive)
Truthful commercial speech is always protected / false and deceptive ads are NOT protected.
58
Constitutional Law: What test applied to the freedom of the press?
Truthful public info is not restricted so long as the information was lawfully obtained by gov’t records.
59
Constitutional Law: Can a news outlet get in trouble if it publishes info that was illegally obtained?
Yes, only if the outlet was the one who broke the law to obtain it.
60
Constitutional Law: What are the “forums for speech”?
1. ) Public Forum: (parks, sidewalks, etc) regulations must be subject-matter and viewpoint neutral. If not - SS. (Regulations must serve important gov’t purpose and leave open adequate alternatives places for communication).
2. ) Designated public forum (gov’t property where the gov’t allows open for speech) same as a normal public forum.
3. ) Limited Public forum - gov’t properties limited to certain groups or dedicated to discussion of limited topics - regulations OK if they are reasonable and viewpoint neutral.
4. ) Non-public forum - military bases, outside prisons, sidewalks of post offices, ad space on city buses, airports - regulation is ok if reasonable and viewpoint neutral.
61
Constitutional Law: Rule on disclosure of Group Membership?
If there’s a chilling effect, then it’s Strict Scrutiny.
62
Constitutional Law: What is the Lemon Test set forward in the Establishment Clause?
1. ) secular purpose
2. ) effect neither advances nor inhibits religion
3. ) No excessive entanglement with religion
63
Crim Pro: To what offenses does the Merger doctrine apply?
Only Solicitation and Attempt.
No merger for conspiracy - that’s a separate crime.
64
Crim Pro: What are the Specific Intent Crimes?
BAM ACTS
Burglary
Assault
Murder (1st)
Attempt
Conspiracy
Theft
Solicitation
65
Crim Pro: What is a magic crime?
Reckless disregard of obviously high risk of harm. Murder/Arson.
66
What is a General Intent Crime?
An awareness of all factors constituting the crime - awareness of the act and a high likelihood it will occur.
67
What is a person’s Accomplice Liability?
Liable for the crime itself and all foreseeable crimes.
Requires active involvement, aid, counsel, encourage, with the intent to aid.
68
What are the Inchoate Offenses?
Solicitation - asking someone to commit a crime. Requires Intent for person to commit the crime. The crime ends at the asking. If they do it, it becomes conspiracy.
Conspiracy - agreement, intent to agree, unlawful objective. (Withdrawal cuts off future crime liability, but NOT conspiracy)
Attempt - specific intent to commit + substantial step beyond mere preparation
69
What are the 3 “Defenses Negating Criminal Capacity?
Insanity - def. to all including strict liability - burden of production
Intoxication - voluntary - only works for specific intent
Infancy - under 7, no liability - over 14 - rebuttalble presumption of no liability.
70
What do you need for the defense of bodily harm?
Confronted unlawful force - with imminent death/great bodily harm.
71
Can you defend property using deadly force?
No, non-deadly force is ok.
No force to regain possession unless in hot pursuit of it.
72
What are other defenses?
Impossibility - factual: no defense. Legal impossibility: not illegal to do what D intended to do.
73
What is the “Mistake of Fact” defense?
For specific intent crimes only, any mistake. Malice/General intent - reasonable mistake only.
74
What is a Battery?
The unlawful application of force resulting in:
1. ) bodily harm
2. ) offensive touching
75
What is an Assault?
1. ) attempted battery (specific intent)
| 2. ) threat to bodily injury (general intent)
76
What is Homocide?
Unlawful killing of a human with malice aforethought.
Intent to kill, inflict great bodily harm
77
What is First Degree Murder?
Deliberate, willful, premeditated,
78
What is Second Degree Murder?
Meant to kill but didn’t premeditate
Unjustified.
79
What is Larceny?
Taking
Carrying away
Of personal property of another by trespass
With intent to permanently deprive
80
What is embezzlement?
fraudulent conversion of personal prop of
| another by a person in lawful possession of that property.
81
What is False Pretense?
Obtaining title to personal prop of another by
| an inten’l false stmt of past or existing fact w/ intent to defraud
82
What is Larceny by trick?
Obtaining possession to personal prop of
| another by inten’l false stmt of fact with intent to defraud
83
What is Robber?
Taking of personal prop of another from other’s
| person or presence by force or threat to imminent death/injury with intent to permanently deprive.
84
What is extortion?
obtain prop by threat of harm/exposing info.
85
What is the Receipt of Stolen Property?
receiving possession and
control of stolen personal prop known to have been stolen by
another person with intent to permanently deprive owner
86
What is required for arrest under 4th amendment?
PC + warrant if D in home; stop in car requires
| reasonable suspicion, incl checkpoint and pretextual stops.
87
What is a valid warrant?
particularity of place searched/things seized
| and issued by neutral and detached judicial officer.
88
What is the 3 step analysis for search and seizure?
1) does person have
4th Am rt? (gov’t conduct and reasonable expectation of
privacy – requires standing, e.g. ownership or living in premises
searched; overnight guest; but not items held out to public);
2) search warrant valid?;
3) is there an exception?
89
What are the rules governing a search incident to a lawful arrest?
search contemporaneous in time
| and place; limited to wingspan of individual.
90
What are the rules for searching a car incident to arrest?
incident to arrest → interior compartment of car
but not trunk; probable cause → full search, including any
containers.
91
What are the rules for stop and frisk?
stop if reas susp of criminal act supported by
articulable facts; frisk if reas suspicion that suspect is armed
and dangerous but limited to finding weapons
92
What are the rules on Wiretapping?
if prob cause; named persons; description w/
particularity re: conversations; limited time; terminated when
info obtained; return to ct to show what was intercepted
93
What are the rules under the 5th amendment?
Miranda for custodial (not free to leave)
interrogations (reasonably likely to elicit response).
Unamb assertion
of right to atty prohibits questioning unless accused initiates
resumption.
NOT offense specific.
Voluntary confessions made
in violation of Miranda are admissible to impeach.
94
When does the 6th amendment right to counsel attach?
Right to counsel: post-charge at critical stages of
| proceeding. Offense specific
95
What Amendment requires a confession to be Voluntary?
14th
96
When does Double Jeopardy attach?
Attaches when jury is sworn or, if no jury, first witness is sworn.
Does not apply to separate sovereigns.
EXCEPTIONS: hung jury; mistrial from manifest necessity;
retrial after successful appeal unless insufficient evidence to
support verdict; breach of agreed plea; termination at behest of
D on grounds not constituting acquittal.
97
When do you have the right to a jury trial?
If the maximum sentence is greater than 6 months.
98
How many jurors require a unanimous verdict?
6 = unanimous verdict.
12 = 9-3 is OK
99
What are the objections an attorney can make concerning Evidence?
Calls for Narrative,
Unresponsive,
Leading
Questions,
Assumes facts not in evid,
Argumentative,
Compound.
Objections must be timely and specific or objection
is waived.
100
Evidence must have Logical Relevance, what does that mean?
if it has any tendency to make a material
fact of consequence more or less probable than it would be
without the evidence.
101
Are “Similar Happenings” relevant?
typically irrelevant unless: used to show
causation; to show a pattern in fraudulent claims or a
preexisting condition; to prove intent; rebut defense of
impossibility; to show comparable sales relevant to establish
value; evid of habit; routine practice; industrial custom.
102
What is LEGAL relevance?
If the probative value of the evidence is
outweighed by its prejudicial effect. - emotionally disturbing,
e.g. gory photograph or evidence that is admissible for one
purpose but inadmissible for another.
103
Is character evidence relevant in a civil trial?
Inadmissible to prove conduct unless character is at issue,
e.g. defamation, negligent entrustment, child custody. Opinion,
reputation, and specific acts can be used.
Prior sexual assaults
or child molestation are admissible to prove conduct.
104
Is character evidence allowed against the defendant in a criminal trial?
D must open door first, unless acts of prior
sex assault or child molest.
If D offered Character evidence of Victim, Plaintiff can offer
evidence of D’s same trait. P can rebut pertinent CE if D opened the door.
Direct Exam: only reputation and opinion. Cross Exam:
reputation, opinion, specific acts, but no extrinsic evid.
105
Can character evidence of the victim be used in a criminal trial?
Prosecutor can’t first offer CE, unless homicide case where D alleges self defense, but P can offer V’s peacefulness.
D can open door with CE of V, and P can rebut
only with D’s same character trait.
Direct Exam: only reputation and opinion. Cross Exam: reputation, opinion, and specific acts, but no extrinsic evid.
106
What is the Rape Shield?
Crim – reputation and opinion not allowed for V.
Specific acts ok to show 3rd party source of physical evid or prior consent between defendant and victim.
In Civil trials - reputation, opinion, and specific acts only if probative value substantial outweighs unfair prejudice.
If reputation, only if victim put reputation at issue.
107
Are evidence of specific acts admissible?
admissible to demonstrate MIMIC, subject to
balancing. (Motive, Intent, Mistake (not), Identification,
Common Scheme/Plan)
108
What must a witness have to be competent?
Witness must have (1) Personal
knowledge: first hand sensory perception; (2) Present
Recollection; (3) Ability to communicate; and (4) Sincerity:
make oath or affirmation to tell truth.
109
Can you use a prior inconsistent statement to impeach?
Yes, Cross exam or extrinsic evid if
| not a collateral matter and W is given opportunity to explain or deny. Must be under oath.
110
Can Bias/Interest/Motive be used to impeach?
On cross-examination or use extrinsic evidence if its not a collateral matter.
111
Can a prior conviction be used to impeach?
Felonies and misdem involving false
statements always ok unless over 10 yrs old.
Felonies not
involving false statements ok subject to balancing;
misdemeanors not involving false statements NOT admissible.
If admissible, extrinsic evid can be used;
112
What are self-authenticating documents?
certified public docs, acknowledged docs,
| official pubs, newspapers, periodicals, business records, trade inscriptions.
113
Is lay opinion testimony admissible?
admissible if based on W’s perceptions and
helpful to trier of fact.
OK to show speed of auto, sanity,
intoxication, emotions, value of W’s property.
No legal or
scientific opinions requiring specialized knowledge.
114
What is needed for an expert opinion?
Hot Quiznos for Cold Penguins
1. ) Helpful to jury
2. ) Qualified
3. ) Factual basis, reasonable degree of’
4. ) Certainty.
5. ) Based on reliable principles.
115
When does Judicial Notice apply?
Generally known in jx OR capable of accurate and ready determination by resort to sources whose
accuracy cannot reasonably be questioned.
Civil – judicial
notice is conclusive. Crim – jury may but doesn’t need to
accept.
116
What is Hearsay?
Out of court statement offered to prove the truth of the matter asserted in the statement. Usually inadmissible.
117
What is NOT Hearsay? (10 total)
1. ) Facts of Independent legal significance.
2. ) Effect on hearer: knowledge or notice
3. ) Speaker’s knowledge of facts
4. ) Circumstantial evidence of the state of mind
5.) Vicarious party admission - (Employee – if authorized
spokesperson or w/in scope of employment and during
employment relationship. Auth can be express or implied)
6.) Adoptive Admission - (silence admission if: party heard and
understood, was physically and mentally able to deny,
reasonable person would have denied)
7.) Prior inconsistent statement under oath - used for impeachment and substantive proof.
118
What are the Exceptions to Hearsay?
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