MBE Flashcards
(41 cards)
How does a deed of trust work?
In some states, a deed of trust (or trust deed) is used in place of a mortgage. The borrower (landowner) delivers title to real property to a third-party trustee (typically the lender’s lawyer) as security for the payment of the note to the beneficiary (lender), with the condition that the trustee re-conveys the title to the borrower upon payment of the note. If the borrower fails to pay the note (defaults), then the beneficiary instructs the trustee to sell the land to repay the note. When the property is transferred by trustee in violation of the trust, an equitable lien may be imposed on the transferred property in favor of the lender.
To whom does the work product doctrine apply?
Rule 26(b)(3) provides limited protection for otherwise discoverable trial preparation materials OR attorneys’ work product. In general, a party may not discover documents and tangible things that are prepared in anticipation of litigation OR for trial by OR for another party OR its representative.
How must an opposing party seek discovery of privileged qualified work product?
By court order
Two types of work product - Absolute and qualified
absolute: docs containing subjective thoughts of a party’s lawyer or other representative are given absolute immunity from discovery which is nearly impossible to overcome (redacted)
qualified: all other docs, can be overcome by party showing substantial need for materials and that their equivalent is not available through other means
When an officer has lawfully stopped a car, may they require the driver and passenger to exit the car?
Yes, for officer safety
If the findings of fact are inconsistent with the verdict, the judge MAY:
- enter a judgement consistent with the interrogatory answers, notwithstanding a general verdict
- direct the jury to deliberate further
- order a new trial
*the court MAY do these things!!! Look for must v. may in answers
To whom does the Privileges and Immunities Clause apply?
prohibits states from discriminating against US citizens from other states, not aliens
What is the test for Congress’ power to enforce the 14th amendment?
Congruence and proportionality test: Enabling Clause permits Congress to pass legislation to enforce the equal protection and due process rights, but not to expand those rights or create new ones. There must be a “congruence and proportionality” between the injury to be prevented or remedied and the means adopted to achieve that end.
Congress can enact laws to ban laws that would be unconstitutional
Bill of Attainder
A type of prohibited legislation
A bill of attainder is a legislative act that declares a person or group of persons guilty of some crime and punishes them without a trial. It applies only to criminal or penal measures.
Barring particular individuals from government employment qualifies as punishment under the prohibition against bills of attainder.
Property power
The Federal Property Clause of Article IV, Section 3 gives Congress the “power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.”
Congress’s absolute power over federal lands includes protecting public lands from nuisances erected on adjoining private property.
What is the test for regulating speech based on time, place and manner?
When dealing with time, place, or manner regulations, the requirement that the regulation be “narrowly tailored” does not mean that the regulation must employ the “least restrictive means” (or “least intrusive means” or “least drastic means”) that will vindicate the significant governmental interest. The regulation need only promote a substantial government interest that would be achieved less effectively absent the regulation
Content based v. content neutral speech regulation
A law is content based when it gets at the “communicative impact” of the speech. Applies to both subject discussed OR opinion expressed.
Congressional grants of jury trials by statutes
The seventh amendment does not prohibit Congress from statutorily granting jury trials to claims that fall outside the seventh amendments grantee.
What is sovereign immunity?
The principal that the federal and state governments cannot be sued for damages
Enforceability of Forum Selection Clauses
The Supreme Court held that a forum selection clause should be given “controlling weight in all but the most exceptional cases,” even if the clause is unenforceable under applicable state law.
when transfer is sought on the basis of a forum selection clause in a contract, the clause is accorded respect.
If the clause specifies a federal forum, most circuit courts treat the clause as prima facie valid, to be set aside only upon a strong showing that transfer would be unreasonable and unjust or that the clause was invalid for reasons such as fraud or overreaching.
Choice of law after proper venue transfer
Generally, if the venue of an action is transferred when the original venue is proper, the court to which the action is transferred must apply the law of the state of the transferor court, including that state’s rules regarding conflict of law.
When venue is moved based on a forum selection clause, what law must the court apply?
when venue is transferred based on a valid forum selection clause, the transferee court must apply the law, including the choice-of-law rules, of the state in which it is located. The transferee court should not apply the law of the transferor court because the parties have contractually waived their right to the application of that law by agreeing to be subject to the laws of the transferee venue.
How do courts use the Mathew v Eldridge factors?
If an individual’s protected interest is threatened by governmental action the court weighs the factors to determine the amount of process that is due. The more important the threatened interest then the greater likelihood the court will require extensive procedural safeguards prior to the termination of that interest.
Privity
the claimant and the defendant must be the same (and in the same roles) in both the original action and the subsequently filed action OR one party must be formally representing the interests of the other party
Issue Preclusion
- Same Issue
- Actually litigated and necessary
- Final, valid judgement
- Minimal privity (requires only that the party against whom the issue is to be precluded was a party (or one in privity with that party) to the original action
* exception: non mutual offensive issue preclusion
Claim preclusion
- Valid, final judgement on the merits
- Same claim
- Same parties (the claimant and the defendant must be the same (and in the same roles) in both the original action and the subsequently filed action. Note that claim preclusion is limited to the parties (or their privies). Thus, a similar action by a different party is generally not precluded.
Issue preclusion: sword v. shield
Shield: D uses IP to prevent P from re-litigating an issue against D
Sword: a new type of IP that is allowed in a majority of jurisdictions. A litigant who was not a party to a prior case (and could NOT have been easily joined) may use collateral estoppel offensively in a new lawsuit against the party who lost on the decided issue in the first case, unless allowing the use of collateral estoppel would be unfair.
Character Evidence - Defendant’s good character
- D opens door by offering evid of pertinent character trait through opinion or reputation (D taking the stand is insufficient)
- Prosecution can then rebut D’s evid by either:
A. Cross examining D’s character witness during
which they can ask questions about relevant
past specific acts but must accept those
answers
B. Call a witness to testify the D does not possess
that trait
Character evidence - Victim’s character
- D opens door by offering evid of a pertinent trait of victim (typically violence in homicide self defense cases and NOT evid of victim’s promiscuity in sex cases)
- Prosecution can rebutt D’s evid by:
A. introducing evid that victim is not violent using
reputation or opinion, NOT specific acts
B. introducing evid that D has the same triat that
they accused the victim of having
