MBE Flashcards

Question

When may a person who has not represented that an individual is authorized to act as an agent be estopped from denying the existence of the agency relationship?

Answer 1

Estoppel applies when a third party is justifiably induced to make a detrimental change in position because that third party believed the transaction was entered into for the principal, and either the principal intentionally or recklessly caused the belief, or failed to take reasonable steps to correct such belief.

Answer 2

Partnership and corporations questions. Be prepared to 1. Identify the existence of agency relationships 2. Discuss whether the principal is subject to liability for the agent's actions 3. Articulate an agent's fiduciary duty to the principal and if there's a breach 4. Determine if or when an agency relationship has terminated

Answer 3

An agent might have a claim against the principal founded in contract or tort law.

Answer 4

Generally, a duty is non-delegable when the responsibility is so important to the community that a person should not be permitted to transfer it to another person.

Answer 5

None- an agent need not receive consideration (a gratuitous agent)

Answer 6

Ratification

Answer 7

When a principal is first undisclosed and the agent binds the principal to a contract with a third party, and then the third party learns of the principal's existence, this doctrine comes into play and requires the third party to choose to hold either the agent or the principal liable and obtain a judgment against only one.

Answer 8

Generally, anyone with minimal capacity can serve as agent, including minors, incompetents, and entities.

Answer 9

A principal who is negligent in selecting, supervising, or otherwise controlling an agent runs the risk of liability attaching to that negligence.

Answer 10

1. Principal's revocation 2. Principal's agreement with the agent 3. Change of circumstances 4. Passage of time 5. Principal's death or suspension of powers 6. Agent's death or suspension of powers 7. Principal's loss of capacity 8. A statutorily mandated termination

Answer 11

A person appointed by an agent to perform functions that the agent has agreed to perform on behalf of a principal. The agent is liable to the principal for the conduct of the subagent.

Answer 12

The agent must: 1. Enter into the contract on behalf of the disclosed principal 2. Affirmatively disclose to the third party both the existence and identity of the principal, and 3. Not agree to become a party to the contract

Answer 13

1. To be compensated (if so promised) 2. Allowed to work without interference 3. Reimbursed for losses 4. Provided a safe work environment 5. Indemnified for working on behalf of a principal

Answer 14

Yes, an agent has a right to receive compensation if the principal impliedly promises such. When no amount has been specified, an agent has the right to be compensated in the customary manner of the business trade.

Answer 15

Vicarious liability asserts that a principal is liable for acts of an agent, even though the principal is innocent of fault and not directly guilty of any tort or crime.

Answer 16

1. Individual 2. Master / Employer 3. Entrepreneur 4. Corporation 5. Partnership

Answer 17

Apparent authority (also known as the doctrine of "ostensible agency")

Answer 18

By appointment (either oral or written)

Answer 19

This situation creates express authority to the agent who received the manifestation by mistake. Note: The same result occurs when a principal's manifestation concerning the subject matter is incorrect.

Answer 20

Implied authority

Answer 21

A minor may serve as an agent, but lacks the capacity to serve as principal. This is because to become a principal and be bound by an agent's actions, a person must have capacity both to consent to the agency relationship and to enter into the transaction to which the agent purports to bind the principal.

Answer 22

Respondeat superior, also known as derivative liability

Answer 23

The agent owes the principal the duty of loyalty, the principal does not owe the agent the duty of loyalty. However, a principal does have a duty to refrain from conduct likely to injure an agent's business reputation or reasonable self-respect.

Answer 24

The partnership can be considered the principal, while partners, employees, and others, such as attorneys, can serve as agents of the partnership.

Answer 25

1. Have minimal capacity 2. Manifest assent and consent to act on the principal's behalf 3. Manifest assent to be subject to the principal's control

Answer 26

For fraudulent concealment to apply, either the principal or the agent must have notice that the third party would not have dealt with the principal. Mere suspicions or doubts are not enough to give notice.

Answer 27

This rule refers to the determination of federal question jurisdiction made by considering only the necessary elements of the plaintiff's cause of action, not anticipated defenses, answers, or counterclaims. This rule applies both to original jurisdiction of the federal court and to removal jurisdiction.

Answer 28

A pleading is required to state as a counterclaim any claim that, at the time of service, the pleader has against an opposing party if: (i) The claim arises out of the same transaction or occurrence that is the subject matter of the opposing party's claim; and (ii) The claim does not require adding another party over whom the court cannot acquire jurisdiction. Note: A party who fails to assert a compulsory counterclaim waives the right to sue on the claim and is generally precluded from ever suing on the claim in federal court.

Answer 29

Pursuant to Rule 20(a)(1), a person may join in one action as plaintiff if: (i) They assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and (ii) Any question of law or fact common to all plaintiffs will arise in the action. Note: The same circumstances apply to permissive joinder of defendants under Rule 20.

Answer 30

A long-arm statute authorizes personal jurisdiction over nonresidents who engage in some activity in the state or cause some action to occur within the state. A long-arm statute either directly authorizes or has been interpreted as authorizing jurisdiction to the extent permissible under the Due Process Clause.

Answer 31

(i) The class must be so numerous that joinder of all members is impracticable (numerosity); (ii) There must be questions of law or fact that are common to the class (commonality); (iii) The claims or defenses of the representatives must be typical of the class (typicality); and (iv) The representatives must fairly and adequately protect the interests of the class (adequacy)

Answer 32

The amount in controversy must exceed $75,000, exclusive of interest, costs, and collateral effects of a judgment. The amount in controversy is determined at the time the action is commenced in federal court, or, if the action has been removed to federal court, at the time of the removal. Note: Attorney's fees may be included in the calculation if recoverable by contract or statute, and punitive damages may possibly be included as well.

Answer 33

28 USC 1292(a) makes certain equitable orders reviewable immediately as a matter of right, including: (i) An order granting, modifying, refusing, or dissolving an injunction; (ii) An order appointing or refusing to appoint a receiver; and (iii) A decree determining the rights and liabilities of the parties to admiralty cases in which appeals from final decrees are allowed.

Answer 34

Under Rule 8(a), a complaint must include: (i) A short and plain statement of the grounds that establish the court's subject matter jurisdiction; (ii) A short and plain statement of the claim establishing entitlement to relief; and (iii) A demand for judgment for the relief sought by the pleader.

Answer 35

A temporary restraining order may issue without notice to the adverse party if: (i) The moving party can establish, under written oath, that immediate and irreparable injury will result prior to hearing the adverse party's opposition; and (ii) The movant's attorney certifies in writing any efforts made to give notice and the reason why notice should not be required.

Answer 36

Under 28 U.S.C. 1331, the district courts have original jurisdiction over all actions arising under the Constitution, laws, or treaties of the United States.

Answer 37

Removal is from state to federal court, and by a defendant, usually within a specified time frame, and with the agreement of all defendants. Remand happens from federal to state court. It does not require consent or timeliness.

Answer 38

(1) Risk of Prejudice: The class is maintainable if the prosecution of separate actions would create the risk that the class opponent would become subject to incompatible standards of conduct resulting from inconsistent adjudications, or if prosecution of the claims through separate actions would impair the interests of the class members. (2) Final Equitable Relief: A class seeking final injunctive or declaratory relief may be certified if the class shares a general claim against the opposing party. (3) Common Legal or Factual Questions: A class can be certified if questions of law or fact that are common to the class members predominate over any questions affecting only individual members, and a class action is the superior method for bringing about a fair and efficient adjudication of the controversy.

Answer 39

Under Rule 19(a), a person who is subject to service of process and whose joinder will not deprive the court of subject matter jurisdiction or destroy venue must be joined as a party if: (i) Complete relief cannot be provided to existing parties in the absence of that person; (ii) Disposition in the absence of that person may impair the person's ability to protect his interest; or (iii) The absence of that person would leave existing parties subject to a substantial risk of multiple or inconsistent obligations.

Answer 40

When: (1) The parties to the action are (a) citizens of different states (b) citizens of a state and citizens or subjects of a foreign state (c) citizens of different states and citizens or subjects of a foreign state are additional parties, or (d) a foreign state as plaintiff and citizens of a state or different states; and (2) The amount in controversy in the action exceeds $75,000

Answer 41

If multiple plaintiffs join together under Rule 20, then supplemental jurisdiction can exist for a claim that does not meet the statutory jurisdictional amount, provided the parties still meet the requirements of complete diversity.

Answer 42

An individual's domicile is the state where the individual is present and intends to reside for an indefinite period. This state remains the domicile until the individual: 1. Establishes presence in a new place; and 2. Manifests intent to remain there for an indefinite period.

Answer 43

A form of equitable relief mandating that a defendant perform a specified act or prohibiting a defendant from performing a specified act

Answer 44

(1) If a plaintiff fraudulently brings a defendant into the state for the purpose of serving process on the defendant (2) If a defendant is merely passing through the state to attend other judiciary proceedings

Answer 45

Under 28 USC 1291, the federal courts of appeals have jurisdiction over appeals of the final judgments of the district courts. A final judgment is a decision by the court on the merits that leaves nothing for the court to do but execute the judgment.

Answer 46

Any party may make a written demand for a trial by jury. The demand, which may be made separately or in a pleading, must be served within 14 days after service of the last pleading directed to the issue that is sought to be tried by a jury, and filed with the court within a reasonable time after service.

Answer 47

An impleader (third-party claim) are claims that are made by a defending party against a nonparty for all or part of the defending party's liability on an original claim.

Answer 48

When: (i) A party has failed to plead or otherwise defend an action, and that failure is show by affidavit; or (ii) The court clerk must enter the party's default. Once a default is entered against a party, the plaintiff may seek a default judgment.

Answer 49

Service may be made within the state in which the federal district court sits by: (i) Personally serving the summons and complaint on the defendant; (ii) Leaving the summons and complaint at the defendant's usual place of abode with a person of suitable age and discretion who resides there; or (iii) Delivering the summons and complaint to an agent appointed by the defendant or otherwise authorized by law to receive service.

Answer 50

Each party in a civil case gets three peremptory challenges. Each party is entitled to an unlimited number of challenges for cause.

Answer 51

In general, appellate review of legal rulings is de novo (i.e., without deference to the trial court's legal rulings).

Answer 52

The movant may file a renewed motion for judgment as a matter of law no later than 28 days after the entry of judgment. If the motion addresses a jury issue not decided by a verdict, then the renewed motion must be filed no later than 28 days after the jury was discharged.

Answer 53

``` Rule 26(a) requires the parties to make: (i) Initial disclosures; ``` (ii) Disclosures of expert testimony 90 days before trial; and (iii) Pretrial disclosures 30 days before trial.

Answer 54

The defense of lack of subject matter jurisdiction may be raised at any time, even on appeal. Rule 12(h)(3).

Answer 55

The responding party must serve its answers and any objections within 30 days after being served with the interrogatories. Note: The court may order or the parties may stipulate to a shorter or longer time.

Answer 56

Under Rule 12(b)(6), a claim for relief can be dismissed if it either (i) fails to assert a legal theory of recovery that is cognizable at law, or (ii) fails to allege facts sufficient to support a cognizable claim. In deciding a motion under Rule 12(b)(6), courts treat all well-pleaded facts of the complaint as true, resolve all doubts and inferences in the plaintiff's favor, and view the pleading in the light most favorable to the plaintiff.

Answer 57

Due process requirements are satisfied if the nonresident defendant has sufficient minimum contacts with the forum state such that the maintenance of the action does not offend traditional notions of fair play and substantial justice.

Answer 58

Diversity is determined at the time the case is filed. There is no requirement that diversity exist at the time the cause of action arose. A change in citizenship or amount in controversy after the filing of the case will not affect diversity jurisdiction that was in existence at the time of the filing. In addition, a change in the parties as a result of substitution or intervention will not affect diversity jurisdiction.

Answer 59

The defendant has 30 days to file a notice of removal once the defendant receives a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is now removable.

Answer 60

1. Express consent: defendant agrees in advance to submit to the jurisdiction of the court if a lawsuit is brought by the plaintiff, or stipulates to personal jurisdiction once an action is brought 2. Implied consent: through conduct, such as filing a counterclaim or driving a vehicle within a state

Answer 61

Pursuant to Rule 33(a), any party may serve no more than 25 written interrogatories on any other party.

Answer 62

Under Rule 50(a), once a party has been fully heard on an issue at a jury trial, the court may grant a motion for judgment as a matter of law resolving the issue against a party if the court finds that there is insufficient evidence for a jury reasonably to find for that party. The court must view the evidence in the light most favorable to the opposing party and draw all reasonable inferences from the evidence in favor of the opposing party.

Answer 63

If the claims are made solely on the basis of diversity jurisdiction, there must be complete diversity between the plaintiffs and the defendants, and each claim must exceed the jurisdiction amount in controversy of $75,000.

Answer 64

An objection to improper venue must be raised in a pre-answer motion to dismiss under Rule 12(b)(3) or in the first responsive pleading, if a motion under Rule 12(b)(3) is not filed.

Answer 65

The movant has the burden of persuasion on a motion for summary judgment. Once the movant make a prima facie showing that summary judgment is appropriate, the burden shifts to the opposing party to set forth specific evidence showing the existence of a genuine issue of fact for trial.

Answer 66

A temporary restraining order may remain in effect for only a limited number of days, but no longer than 14 days unless good cause exists or the adversary consents.

Answer 67

A business entity is deemed to reside in any judicial district in which the entity is subject to personal jurisdiction with respect to the civil action in question. Note: If the entity is a plaintiff, then it is deemed to reside only in the judicial district in which it maintains its principal place of business.

Answer 68

``` Claim preclusion (res judicata) requires: (i) A valid final judgment on the merits; ``` (ii) Sufficiently identical causes of action; and (iii) Sufficiently identical parties.

Answer 69

If the action is a federal question claim, then federal substantive and procedural law will control, as well as federal common law.

Answer 70

Under Rule 15(a), a party may amend a pleading: (i) Once as of right within 21 days if no responsive pleading is required; or (ii) If a responsive pleading is required, within 21 days of service of the responsive pleading or within 21 days of being served with a motion under Rule 12(b), whichever is earlier. Additionally, the court should freely give leave to amend a pleading when justice so requires.

Answer 71

Any civil action commenced in a state court that is within the original jurisdiction of a U.S. district court may generally be removed to the district court for the district and division in which the state court action is pending. Generally, the right of removal is a right of the defendant.

Answer 72

(i) A judicial district in which any defendant resides, if all defendants reside in the same state in which the district is located; or (ii) A judicial district in which a "substantial part of the events or omissions" on which the claim is based occurred, or where a "substantial part of the property" that is the subject of the action is located.

Answer 73

The plaintiff is responsible for serving the summons and complaint upon the defendant within 90 days after filing the complaint.

Answer 74

In general, all defendants who have been properly joined and served are required to join in or consent to the removal. If the defendants are served at different times and a later-served defendant files a notice of removal, then any earlier-served defendant may join in the removal even though that defendant did not previously initiate or consent to removal. Note: In cases of removal based on federal question jurisdiction, only those defendants against whom the federal claim is asserted must join in or consent to the removal.

Answer 75

“Principal place of business” refers to the “nerve center” of the corporation. The nerve center is generally the location from which the high-level officers direct, control, and coordinate the activities of the corporation. Typically, the nerve center is the corporate headquarters.

Answer 76

Three factors the courts generally consider are: (i) Whether the defendant's failure to act was willful; (ii) Whether setting the default aside would prejudice the plaintiff; and (iii) Whether the defendant has presented a meritorious claim.

Answer 77

(1) Special verdict - A written finding made by the jury on each issue of ultimate fact. The court submits written questions to the jury correlating to each ultimate fact of the case and asks the jury to make a finding on each fact. (2) General verdict - A decision by the jury as to the prevailing party and, if the plaintiff is the prevailing party, the amount of damages. (3) General with special interrogatories - This couples a general verdict with a special verdict. It is used to ensure that the jury independently considered the material facts of the case in arriving at its verdict.

Answer 78

When the claims arise out of a common nucleus of operative fact

Answer 79

When a single plaintiff sues multiple defendants, the value of the plaintiff’s claims against each defendant may not be aggregated if the claims are separate and distinct. If the defendants are jointly liable to the plaintiff, then aggregation to meet the amount-in-controversy requirement is permissible.

Answer 80

A motion for judgment as a matter of law may be made at any time before the case is submitted to the jury. Note: If a party moves for a judgment as a matter of law after the close of the plaintiff's case and the motion is denied, then the party may be unable to pursue a renewed motion for judgment as a matter of law after entry of judgment unless the party also moves for judgment as a matter of law after the presentation of all evidence.

Answer 81

A corporation is considered a citizen of the state(s) and/or foreign country of incorporation and also the state or foreign country where it has its principal place of business. Note: There can be more than one state or foreign country of incorporation, but only one state or foreign country will qualify as the principal place of business.

Answer 82

A defendant who wants to remove a state court action to federal district court generally must file a notice of removal with the district court within 30 days after receipt or service of the initial pleading or summons.

Answer 83

(i) Error at trial that renders the judgment unfair; (ii) Newly discovered evidence that existed at the time of the trial was excusably overlooked and would likely have altered the outcome of the trial; (iii) Prejudicial misconduct of counsel, a party, the judge, or a juror; (iv) A verdict that is against the clear weight of the evidence; (v) A verdict that is based on false evidence; or (vi) A verdict that is excessive or inadequate. Note: Rule 59 does not specifically list the grounds that will justify a new trial, but in practice, the overarching theme is that the court may grant a new trial to prevent a miscarriage of justice.

Answer 84

(i) Lack of subject matter jurisdiction (ii) Lack of personal jurisdiction; (iii) Improper venue; (iv) Insufficient process; (v) Insufficient service of process; (vi) Failure to state a claim upon which relief can be granted; and (vii) Failure to join a necessary or indispensable party under Rule 19.

Answer 85

Under Rule 12(h)(1), the defenses of lack of personal jurisdiction, improper venue, insufficient process, and insufficient service of process must be raised in a pre-answer motion or, if no pre-answer motion is made, in the answer, or the defenses will be waived.

Answer 86

(i) The nature of the action; (ii) The definition of the class; (iii) The class claims, issues, or defenses; (iv) That a class member may enter an appearance through an attorney if the member so desires; (v) That the court will exclude from the class any member who requests exclusion; (vi) The time and manner for requesting exclusion; and (vii) The binding effect of a class judgment on members.

Answer 87

(1) In personam jurisdiction (2) In rem jurisdiction (3) Quasi-in-rem jurisdiction

Answer 88

In the case of injunctive relief, when it is difficult to assess a dollar amount, the court determines both the value of the plaintiff’s harm if an injunction is not imposed and the defendant’s cost of complying with an injunction. If the amount of either exceeds $75,000, then the amount-in-controversy requirement is satisfied.

Answer 89

(1) Voluntary Presence (2) Domicile (3) Consent (4) Long-arm statutes (5) Attachment

Answer 90

In a diversity action, the district court is required to apply the substantive law of the state in which the district court is located, if there is no federal law on point. The district court will apply federal procedural law, even if a state rule or statute is in conflict.

Answer 91

Answers and counterclaims are not considered in determining the existence of federal question jurisdiction.

Answer 92

A plaintiff seeking a preliminary injunction must establish that: (i) He is likely to succeed on the merits; (ii) He is likely to suffer irreparable harm in the absence of relief; (iii) The balance of equities is in his favor; and (iv) The injunction is in the best interest of the public.

Answer 93

Under Rule 12, within 21 days of service of process, a defendant must respond to a complaint either by an answer or by a pre-answer motion.

Answer 94

(i) Race (ii) Ethnicity (iii) National origin (iv) If the classification is by state law, citizenship status

Answer 95

The Taxing and Spending Power Note: Congressional encouragement may not exceed the point at which pressure turns into compulsion.

Answer 96

Congress cannot command state legislature to enact specific legislation or enforce a federal regulatory program, and it may not circumvent that restriction by conscripting a state executive officer directly. Note: While Congress cannot directly command (either by compelling a state to enact legislation or prohibiting a state from enacting new laws), it can use its taxing and spending powers to encourage state action.

Answer 97

The state law grounds fully resolve the matter (i.e., be adequate) and do not incorporate a federal standard by reference (i.e., be independent). The U.S. Supreme Court may not review a final state-court judgment that rests on adequate and independent state grounds.

Answer 98

(i) The Constitution has assigned decision making on this subject to a different branch of the government; or (ii) The matter is inherently not one that the judiciary can decide.

Answer 99

The plaintiff must have experienced a real injury (or imminent threat thereof). A federal court will not consider a claim before it has fully developed.

Answer 100

When a state official, rather than the state itself, is named as the defendant, the state official may be enjoined from enforcing a state law that violates federal law, or may be compelled to act in accord with federal law despite state law to the contrary.

Answer 101

State action

Answer 102

1. Obscenity 2. Incitement to violence 3. Fighting words 4. Defamation 5. Commercial speech

Answer 103

When it adopts legislation rationally related to eliminating racial discrimination (i.e., “badges or incidents” of slavery) pursuant to the Thirteenth Amendment.

Answer 104

The Necessary and Proper Clause grants Congress the power to enact any legislation necessary and proper to execute any authority granted to any branch of the federal government. Note: The Necessary and Proper clause is not an independent source of power. It simply permits Congress to use otherwise designated authority to be exercised fully.

Answer 105

To pass strict scrutiny: (i) The government must itself be guilty of specific past discrimination against the group it is seeking to favor; and (ii) The remedy must be narrowly tailored to end that discrimination and eliminate its effects.

Answer 106

A principle that states Congress may not delegate legislative power to any other branch of government. However, Congress can delegate some of its authority to the executive branch, so long as Congress specifies an "intelligible principle." Note: The power of impeachment and the power to declare war are nondelegable.

Answer 107

Discriminatory intent, which can be shown facially, as applied, or when there is a discriminatory motive

Answer 108

An advisory opinion is an opinion issued by a court or a commission (like an election commission) that does not have the effect of adjudicating a specific legal case, but merely advises on the constitutionality or interpretation of a law. Federal courts do not render advisory opinions because federal courts only render decisions where an actual case or controversy exists.

Answer 109

Congress has the power to regulate any activity that in and of itself, or in combination with other activities, has a substantial economic effect upon interstate commerce. Aggregation deals with the "in combination with other activities" part of the rule. While one farmer growing wheat on his farm with no intent to sell to anyone seems to be an isolated event, that can change when combined with other farmers who share that same intent. These isolated events can "in the aggregate" have a substantial effect on interstate commerce (or lack thereof) and be regulated by Congress.

Answer 110

A case will not be dismissed as moot if there is a reasonable expectation that the same complaining party will be subject to the same action again (capable of repetition) but that the action will not last long enough to work its way through the judicial system (yet evading review). Note: Roe v. Wade provides the classic constitutional example. By the time the woman seeking to terminate her pregnancy finally came before the Supreme Court, she was no longer pregnant, therefore the argument was made that her claim was moot. However, she could once again find herself in a similar situation, and would again be without judicial recourse.

Answer 111

(i) The channels of interstate commerce; (ii) The instrumentalities of interstate commerce; and (iii) Intrastate and interstate activity (economic or commercial) that has a substantial effect on interstate commerce. Note: Remember that Congress may regulate intrastate activity that does not have a direct economic impact on interstate commerce as long as there is a rational basis for concluding that the “total incidence” of the activity in the aggregate substantially affects interstate commerce.

Answer 112

The regulation must be: (i) Viewpoint-neutral; and (ii) Reasonably related to a legitimate governmental interest.

Answer 113

A taxpayer has standing when the taxpayer challenges governmental expenditures as violating the Establishment Clause. A taxpayer also has standing to litigate whether, or how much, she owes on her tax bill.

Answer 114

(i) Congress intended for federal law to occupy the field; (ii) The state law directly conflicts with federal law; or (iii) The state law indirectly conflicts with federal law by creating an obstacle or frustrating the accomplishment of that law's purpose.

Answer 115

The Supreme Court has original jurisdiction over: (i) All cases affecting ambassadors (ii) Other public ministers and consuls (iii) Those in which a state is a party

Answer 116

The tax only need be rationally related (or have a reasonable relationship) to revenue production.

Answer 117

The President can, within 10 days of presentment, veto (or reject) a bill and send it back, with objections, to the house in which it originated. Once a bill is vetoed, Congress can override the President's veto with a 2/3rds vote in each house.

Answer 118

The Constitution says nothing about the President's power to remove executive officers, but it is generally accepted that the President may remove any executive appointee without cause (and without Senate approval). Note: federal judges are excepted and hold their offices during good behavior and until impeached.

Answer 119

(i) Necessary to important state interest and no other nondiscriminatory means are available (ii) State as a Market Participant (iii) Traditional government function exception (iv) Subsidies (v) Federal/Congressional Approval

Answer 120

The House of Representatives determines what constitutes "high crimes and misdemeanors" and may impeach by a majority vote. The Senate tries the impeached official, and a 2/3 vote is necessary for conviction.

Answer 121

(1) The President may not be sued for civil damages with regard to any acts performed as part of the President's official responsibilities. (2) The President has no immunity for civil actions based on conduct that occurred before the President took office or completely unrelated to carrying out the job.

Answer 122

Only when: (i) The instrumentality has a taxable situs within (or sufficient contacts with) the taxing state; and (ii) The tax is fairly apportioned to the amount of time the instrumentality is in the state.

Answer 123

(i) When a private person carries on activities that are traditionally performed exclusively by the state; and (ii) When the government is significantly involved in private discrimination.

Answer 124

The Constitution grants the President the power to "grant reprieves and pardons for offenses against the United States, except in cases of impeachment." This power only applies to federal cases- the President may not pardon anyone for state offenses.

Answer 125

When a classification is based on gender or status as a nonmarital child (legitimacy) Note: In gender cases, there must be an "exceedingly persuasive justification" for the classification.

Answer 126

1. Traditional public forums 2. Designated public forums 3. Nonpublic/limited public forums

Answer 127

To be constitutional, the law must be substantially related to an important governmental interest.

Answer 128

In order for an organization to bring an action on behalf of its members, the organization needs to show: (i) Its members would have standing to sue in their own right; and (ii) The interests at stake are germane to the organization's purpose.

Answer 129

(i) There is no discrimination against out-of-state interests; (ii) The regulation does not unduly burden interstate commerce; and (iii) The regulation does not apply to wholly extraterritorial activity.

Answer 130

Private property may not "be taken for public use, without just compensation."

Answer 131

The rights to notice and a hearing

Answer 132

Article IV applies to state citizenship and the Fourteenth Amendment applies to national citizenship. Note: The Fourteenth Amendment’s Privileges or Immunities Clause applies, in practice, only to the right to travel.

Answer 133

Strict scrutiny

Answer 134

(i) Citizens of one state suing another state in federal court; (ii) Suits in federal court against state officials for violating state law; and (iii) Citizens suing their own state in federal court. Note: These are subject to exceptions.

Answer 135

Absolute immunity

Answer 136

The Tenth Amendment provides that all powers not assigned by the Constitution to the federal government are reserved to the states, or to the people.

Answer 137

The Eleventh Amendment does not bar: (i) Actions against local governments (ii) Actions by the United States government or other state governments (iii) Bankruptcy proceedings that impact state finances

Answer 138

(i) The regulation is within the government's power to enact; (ii) The regulation furthers an important governmental interest; (iii) The governmental interest is unrelated to the suppression of ideas; and (iv) The burden on speech is no greater than necessary.

Answer 139

When there is an employment contract or a clear understanding that the employee may be fired only for cause Note: Even those employees who lack any entitlement to continued employment cannot be discharged for reasons that in and of themselves violate the Constitution.

Answer 140

The Due Process Clause of the Fifth Amendment applies against the federal government, and the Due Process Clause of the Fourteenth Amendment applies against the states.

Answer 141

If Congress has adjourned within the 10-day period after presenting a bill to the President, and the President had not yet acted on the bill, this is known as a "pocket veto" and the bill does not become law. This cannot be overridden.

Answer 142

(i) The right to travel; (ii) The right to vote; and (iii) The right to privacy (including marriage, sexual relations, abortion, child rearing, and the right of related persons to live together).

Answer 143

A law meets the rational basis standard of review if it is rationally related to a legitimate state interest. Note: This test generally results in the law being upheld.

Answer 144

The restriction must: (i) Be content-neutral as to both subject matter and viewpoint; (ii) Be narrowly tailored serve a significant state interest; and (iii) Leave open ample alternative channels for communication of the information.

Answer 145

1. Certiorari (discretionary review) | 2. Direct appeal (mandatory)

Answer 146

(1) Strict scrutiny | (2) Rational basis

Answer 147

The Federal Property Clause gives Congress the power to dispose of and make all necessary rules and regulations respecting the territory or other property of the United States. There is no express limit on Congress's power to dispose of property owned by the US, but Congress may only take property for public use with just compensation.

Answer 148

If the law: (i) Creates a new crime and applies retroactively; (ii) Increases the penalty for past conduct; (iii) Deprives the defendant of a defense available at the time the act was committed; or (iv) Decreases the prosecution's burden of proof required for a conviction below what was required when the alleged offense was committed.

Answer 149

(A) The Constitution is superior to a treaty. (B) The most recently adopted will control.

Answer 150

(i) Injury in fact; (ii) Causation (the injury must be caused by the defendant's violation of a constitutional or other federal right); and (iii) Redressability (the relief requested must prevent or redress the injury). Note: The federal judiciary has also established a "prudential standing" requirement, i.e., that a plaintiff is a proper party to invoke a judicial resolution of the dispute.

Answer 151

When that tax is indirect and does not unreasonably burden the federal government (e.g., state income taxes on federal employees)

Answer 152

Legislative vetoes arise when Congress passes a law reserving to itself the right to disapprove future executive actions by simple resolution. Such acts are unconstitutional.

Answer 153

A state may consent to suit by waiving its Eleventh Amendment protection.

Answer 154

The law must be the least restrictive means to achieve a compelling governmental interest.

Answer 155

(i) There is a substantial nexus between the taxing state and the property or activity to be taxed; (ii) There must be fair apportionment of tax liability among states; and (iii) The tax must be fairly related to the services provided by the taxing state.

Answer 156

Once the goods are stopped for a business purpose (i.e., obtain a "taxable situs") Note: A state may not levy ad valorem taxes on goods in the course of transit.

Answer 157

(i) It has a secular purpose; (ii) Its principal or primary effect neither advances nor inhibits religion; and (iii) It does not result in excessive government entanglement with religion.

Answer 158

When (i) the Constitution makes federal power exclusive (such as the powers to coin money or declare war), or (ii) when Congress has enacted legislation that explicitly prohibits state regulation in the same area

Answer 159

A line item veto is where the President refuses only part of a bill and approves the rest. Line item vetos violate the Presentment Clause and are therefore unconstitutional.

Answer 160

Ripeness and mootness both deal with the timeliness of an action for judicial review purposes. Ripeness is an action that is brought too soon, and mootness is an action that is brought too late, as there is no longer a case or controversy.

Answer 161

When the state action in question involves a fundamental right or suspect classification.

Answer 162

(i) Minors (under the age of 18); (ii) People who are mentally ill; (iii) People who are intoxicated; and (iv) People whose property is under guardianship by reason of adjudication.

Answer 163

A court may allow restitutionary recovery if: 1. The plaintiff has conferred a measurable benefit on the defendant; 2. The plaintiff acted without gratuitous intent; and 3. It would be unfair to let the defendant retain the benefit because either (i) the defendant had the opportunity to decline the benefit but knowingly accepted it, or (ii) the plaintiff had a reasonable excuse for not giving the defendant such opportunity.

Answer 164

Under the material benefit rule, when a party performs an unrequested service for another party that constitutes a material benefit, the modern trend permits the performing party to enforce a promise of payment made by the other party after the service is rendered, even though, at common law, such a promise would be unenforceable due to lack of consideration.

Answer 165

Consideration is evidenced by a bargained-for exchange in legal position between the parties. Most courts conclude that consideration exists if there is a detriment to the promisee, irrespective of the benefit to the promisor.

Answer 166

Contracts for services or real estate

Answer 167

Expectation Damages = loss in value + other loss - cost avoided - loss avoided

Answer 168

Under the common law, past consideration is typically not adequate consideration because it could not have been bargained for, nor could it have been done in reliance upon a promise. Note: there is a modern trend toward enforcing such promises under the material benefit rule.

Answer 169

(i) An unforeseeable event has occurred; (ii) Nonoccurrence of the event was a basic assumption on which the contract was made; and (iii) The party seeking discharge is not at fault.

Answer 170

Any contract involving the sale of goods

Answer 171

The preferred method is an objective standard based upon whether a reasonable person would be satisfied. However, when the aesthetic taste of a party determines whether the other party's performance is satisfactory, satisfaction is determined under a subjective standard.

Answer 172

(i) The term materially alters the original contract; (ii) The offer expressly limits acceptance to the terms of the offer; or (iii) The offeror has already objected to the additional terms, or objects within a reasonable time after notice of them was received. Note: If any one of these three exceptions is met, the term will not become part of the contract, and the offeror's original terms control.

Answer 173

Once the goods are delivered to the carrier

Answer 174

(i) Mistake of fact existing at the time the contract was formed; (ii) The mistake relates to a basic assumption of the contract; (iii) The mistake has a material impact on the transaction; and (iv) The adversely affected party did not assume the risk of the mistake.

Answer 175

The doctrine of anticipatory repudiation is applicable when a promisor repudiates a promise BEFORE the time for performance is due. The repudiation must be clear and unequivocal, may be by conduct or words, and, if a statement, must be made to the promisee or a third-party beneficiary or assignee of the promise.

Answer 176

One to whom the promisor will pay directly to relieve the promisee from a debt or whom the promisee intends to give the benefit of the promised performance

Answer 177

In general, the party can recover the contract price minus any amount that it will cost the other party to obtain the promised full performance. Note: A party who has not substantially performed generally cannot recover damages based on the contract, but she may be able to recover through restitution.

Answer 178

At common law, modifications require consideration; under the UCC, they require only good faith.

Answer 179

Yes, so long as it does not contradict the writing.

Answer 180

The promisor can: 1. Give something in addition to what is already owed 2. Vary the preexisting duty in some way

Answer 181

An output contract is a contract under which a seller agrees to sell all that she manufactures of a product to the buyer. There is consideration in these agreements because the promisor suffers a legal detriment.

Answer 182

Under an accord agreement, a party to a contract agrees to accept a performance from the other party that differs from the performance that was promised in the existing contract, in satisfaction of the other party's existing duty. A "satisfaction" is the performance of the accord agreement; it will discharge both the original contract and the accord contract.

Answer 183

Once the goods are delivered to a particular place (specified in the contract)

Answer 184

Marriage - a contract made upon the consideration of marriage; Suretyship - a contract to answer for the debt or duty of another; One year - a contract that cannot be performed within one year from its making; UCC - under the UCC, a contract for the sale of goods for a price of $500 or more; and Real Property contract - a contract for the sale of an interest in real property. (Acronym: Mr. SOUR)

Answer 185

Fraud in the factum (or fraud in the execution) occurs when the fraudulent misrepresentation prevents a party from knowing the character or essential terms of the transaction. Effect: No contract is formed, and the apparent contract is VOID.

Answer 186

All essential terms (i.e., the parties, subject matter, price, and quantity)

Answer 187

Course of performance, course of dealing, and trade usage. Note: If the express contract terms are inconsistent with the course of performance, or trade usage, priority is given to the express terms, followed by course of performance, course of dealing and trade usage.

Answer 188

A condition that precedes the obligation to perform

Answer 189

An offer requiring a promise to accept can be accepted either with a return promise or by starting performance.

Answer 190

The common-law mirror-image rule states that the acceptance must mirror the terms of the offer. Any change to the terms of the offer, or the addition of another term not found in the offer, acts as a rejection of the original offer and as a new counteroffer.

Answer 191

An assignment is the transfer of rights under a contract, and a delegation is the transfer of duties and obligations under the contract.

Answer 192

The writing must: (i) Be signed by the party against whom enforcement is sought; and (ii) Contain the essential elements of the deal.

Answer 193

There must be something of substance, either an act or a promise, which is given in exchange for the promise that is to be enforced.

Answer 194

An acceptance that is mailed properly (i.e., correct postage and address) within the allotted response time is effective when sent as opposed to on receipt, unless the offer provides otherwise.

Answer 195

(i) The time for performance under the contract has not yet elapsed; or (ii) The seller had reasonable grounds to believe that the buyer would accept despite the nonconformity. Note: The seller must give notice of the intent to cure and make a new tender of conforming goods.

Answer 196

A condition that excuses the duty to perform after a particular event occurs

Answer 197

The doctrine of frustration of purpose. The frustrated party is entitled to rescind the contract without paying damages. Note: The event that arises must not be the fault of the frustrated party, and its nonoccurrence must have been a basic assumption of the contract.

Answer 198

An implied-in-fact contract is a contract that results when a person’s assent to an offer is inferred solely from the person’s conduct. To be contractual bound, the person must not only intend the conduct but also know or have reason to know that the conduct may cause the offeror to believe the offer was accepted.

Answer 199

Quantity Note: The UCC "fills the gap" if other terms are missing.

Answer 200

The nonbreaching party is able to withhold any promised performance and pursue remedies for breach, including damages. Note: If the breach is minor, the nonbreaching party may be able to recover damages, but that party also still must perform under the contract.

Answer 201

The implied warranty of merchantability is implied whenever the seller is a merchant. The disclaimer can be oral, but must use the term "merchantability" and must be conspicuous if in writing. Language that indicates there is no implied warranty is sufficient (e.g., "as is" or "with all faults").

Answer 202

Fraud in the inducement occurs when a fraudulent misrepresentation is used to induce another to enter into a contract. Effect: Contract is VOIDABLE by the adversely affected party if she justifiably relied on the misrepresentation in entering into the agreement.

Answer 203

An illusory promise is one that essentially pledges nothing because it is vague or because the promisor can choose whether to honor it. Such a promise is not legally binding (i.e., void).

Answer 204

The test to distinguish a gift from valid consideration is whether the offeree could have reasonably believed that the intent of the offeror was to induce the action. If yes, there is consideration and the promise is enforceable.

Answer 205

When a party's performance can be rendered at the same time as the other party's performance, each party's performance is conditioned on the other party's performance; both parties' performances are due simultaneously, unless the language or circumstances indicate otherwise.

Answer 206

Consequential damages arise out of special circumstances unique to the parties to the contract, rather than arising necessarily from the transaction itself.

Answer 207

A requirements contract is a contract under which a buyer agrees to buy all that is required of a product from the other party. There is consideration in these agreements because the promisor suffers a legal detriment.

Answer 208

An offer is an objective manifestation of a willingness by the offeror to enter into an agreement that creates the power of acceptance in the offeree.

Answer 209

An output contract is a contract under which a seller agrees to sell all that she manufactures of a product to the buyer. There is consideration in these agreements because the promisor suffers a legal detriment.

Answer 210

The parol evidence rule generally prevents a party to a written contract from presenting extrinsic evidence of a prior or contemporaneous agreement that contradicts the terms of the contract as written.

Answer 211

When a defendant is unjustly enriched by the plaintiff, restitution generally allows the plaintiff to recover on the benefit conferred by the plaintiff upon the defendant. Generally, the benefit is measured by either (i) the reasonable value of the defendant obtaining that benefit from another source, or (ii) the increase in the defendant's wealth from having received that benefit.

Answer 212

An assignee takes all of the rights of the assignor as the contract stands at the time of the assignment, but she takes subject to any defenses that could be raised against the assignor.

Answer 213

The perfect tender rule requires perfect goods and perfect delivery. "Perfect" means in accordance with the contract provisions or in accordance with the UCC if the contract is silent on tender.

Answer 214

(i) The offeror is a merchant; (ii) There is an assurance that the offer is to remain open; and (iii) The assurance is contained in a signed writing from the offeror.

Answer 215

An acceptance is an objective manifestation by the offeree to be bound by the terms of the offer.

Answer 216

(i) The promisor should reasonably expect it to induce action or forbearance on the part of the promisee or a third person; (ii) The promise does induce such action or forbearance; and (iii) Injustice can be avoided only by enforcement of the promise.

Answer 217

When damages are an inadequate remedy, the nonbreaching party can pursue specific performance. Note: Legal remedies are often inadequate in contracts for land or other unique goods.

Answer 218

Consideration can take the form of: 1. A return promise to do something 2. A return promise to refrain from doing something legally permitted 3. The actual performance of some act 4. Refraining from doing some act

Answer 219

The warranty of fitness for a particular purpose is implied whenever the seller has reason to know that (i) the buyer has a particular use for the goods, and (ii) the buyer is relying upon the seller's skill to select the goods. A disclaimer must be in writing and be conspicuous.

Answer 220

Under the common law, a court was permitted to look only to the writing itself (within the "four corners" of the document) for evidence of intent (regarding whether there is total, partial, or no integration).

Answer 221

Repudiation may be retracted until such time as the promisee (i) acts in reliance on the repudiation, (ii) signifies acceptance of the repudiation, or (iii) commences an action for breach of contract.

Answer 222

One who benefits from a contract even though there is no contractual intent to benefit that person Note: An incidental beneficiary has no rights to enforce the contract.

Answer 223

Acceptance of an offer for a unilateral contract requires complete performance. Note: Once performance has begun, the unilateral offer is irrevocable for a reasonable period of time to allow for complete performance unless there is a manifestation of a contrary intent.

Answer 224

A void contract results in the entire transaction being regarded as a nullity, as if no contract existed between the parties; the contract is unenforceable. A voidable contract operates as a valid contract unless and until one of the parties takes steps to avoid it.

Answer 225

The rights of an intended beneficiary vest when the beneficiary: i) Materially changes position in justifiable reliance on the rights created; ii) Manifests assent to the contract at one party’s request; or iii) Files a lawsuit to enforce the contract.

Answer 226

Upon receipt. (Example: On day 1, A mails an offer to B. On day 2, A mails a revocation to B. If B receives the offer and accepts before receiving the revocation, a contract is formed.)