MBE Flashcards
(280 cards)
1
Q
defamation elements
A
-Identifies P
-Published to 3rdP
-falsity
-fault of part of D (malice if public figure, negligence if -public concern, none if private matter)
-damages to P’s reputation (unless slander per se - contagious disease, serious crime, profession incompetence, sexual misconduct)
2
Q
invasion of right to privacy elements
A
-appropriation of P’s name or picture
-intrusion on P’s affairs or seclusion
-placing P in false light
-public disclosure of private facts (highly offensive to a reasonable person)
3
Q
product liability elements (SL)
A
-D is a merchant (entire distro chain)
-defective product
-product not substantially altered after leaving D
-causation
-P was making foreseeable use of product (even if foreseeable misuse)
4
Q
type of defects
A
-manufacturing (varied from normal product off the line)
-design (safer alternative, no change to utility or price)
-information (instructions or warnings missing)
5
Q
Implied Warranty of Merchantability
A
a merchant sells goods that are generally fit for ordinary use and generally acceptable to others in the industry
6
Q
Implied Warranty of Fitness for a Particular Purpose
A
the seller knows or has reason to know that the goods are required for a particular purpose and that the buyer is relying on the seller’s skills and judgment to provide appropriate goods
7
Q
representation - theory of liability
A
-express warranty
-misrepresentation of fact
8
Q
general warranty deed - covenants for title
A
-sesin: grantor owns
-right to convey: grantor can transfer
-against encumbrances: no 3rdP claims
-quiet enjoyment: no 3rdP claims in future
-warranty: grantor will defend
-further assurances: grantor will perfect
9
Q
modern rules of accord and satisfaction
A
debtor may make an offer to settle a dispute by offering a check with the statement “payment in full” only if 1/ check contained conspicuous statement, 2/ subject to bona fide dispute, and 3/ debtor acted in good faith
10
Q
Privileges and Immunities Clause of Article IV
A
a state may not impose residency or citizenship requirements on non-residents without demonstrating a substantial interest justifying the classification
11
Q
confrontation clause elements
A
inadmissible if: 1/ declarant unavailable, 2/ offered against defendant, 3/ “testimonial” statement, 4/ no opportunity to cross-examine
12
Q
federal privileges
A
attorney-client, marital communications, spousal immunity, psychotherapist, clergy, government officials
13
Q
non-propensity purposes for offering specific act evidence
A
Motive, Intent, Mistake (absence of), Identity, Common Plan or Scheme - evidence can only be admitted if defendant’s is contesting one of the above
14
Q
merger clause
A
a provision in a contract that states that the written contract represents the complete and final agreement between the parties.
15
Q
double jeopardy clause is which A?
A
5th
16
Q
which circumstances take a sale of goods contract over $500 out of SOF?
A
SWAP (specially made, written confirmatory memo, admission in court, performance)
17
Q
offer
A
promise, undertaking, or commitment with definite and certain terms communicated to offeree
18
Q
consideration
A
bargained-for exchange of something of legal value
19
Q
third-party beneficiary’s rights vest by:
A
1/ third party assenting to the contract,
2/ bringing suit to enforce the contract, or
3/ materially changing position in justifiable reliance on the promise
20
Q
acceptance of an offer
A
a manifestation of assent to the terms of an offer in the manner prescribed or authorized by the offer
21
Q
a contract requires:
A
mutual assent (offer and acceptance), consideration, and the absence of any formation or enforcement defenses
22
Q
contract formation defenses
A
lack of capacity, fraud, duress
23
Q
contract enforcement defenses
A
SOF
24
Q
a court will not enforce specific performance on a services contract because:
A
of difficulties in enforcing such an order and because it may constitute involuntary servitude
25
Exception to parol evidence final integration rule
1/ conditions precedent agreed to orally before written contract can still be enforced 2/ when terms are added that do not contradict written terms, and there is no indication it is fully integrated (no merger clause)
26
novation
occurs when a new contract substitutes a new party to receive benefits and assume duties that had originally belonged to one of the original parties under the terms of the old contract. will serve to discharge the old contract. must have an agreement among all parties, including the new party (or parties) to the new contract.
27
rule statement for sale of goods
Contracts for the sale of goods are governed by Article 2 of the Uniform Commercial Code (“UCC”). “Goods” are all things moveable at the time they are identified to the contract; i.e., most tangible things. A sailboat is moveable. Thus, this is a contract for the sale of goods and is governed by Article 2.
28
rule statement for adequate assurances
Under Article 2, if a party has reasonable ground for insecurity with respect to the other party’s performance (i.e., he reasonably believes the other party will not perform), he may demand assurances that the performance will be forthcoming at the proper time. A demand for assurances must be made in writing. Until the party so demanding receives adequate assurance, he may suspend his own performance. The other party must give adequate assurances within a reasonable time. If the proper assurances are not given within a reasonable time, not to exceed 30 days, the party demanding assurances may treat the contract as repudiated.
29
remedies for repudiation
The nonrepudiating party may: 1/ treat the repudiation as a total breach and sue immediately, 2/ suspend his own performance and wait to sue until the performance date, 3/ treat the repudiation as an offer to rescind and treat the contract as discharged, or 4/ ignore the repudiation and urge the builder to perform.
30
withdrawal of repudiation
A repudiating party may at any time before his performance is due withdraw his repudiation—unless 1/ the other party has canceled the contract, 2/ materially changed his position in reliance on the repudiation, or 3/ otherwise indicated that he considers the repudiation final. Withdrawal of the repudiation may be in any manner that clearly indicates an intention to perform but must include any assurances justifiably demanded. Retraction of the repudiation reinstates the repudiating party’s rights under the contract.
31
quasi-contract
A court will impute a quasi-contract on a party to **avoid unjust enrichment**--one party receiving a benefit without paying for it. The remedy will be for the party that has benefited to pay the value of the benefit conferred to the conferring party.
32
when is a promise illusory?
if one party reserves the right to terminate a contract for a specified amount of time
33
UCC modification of contract requires...
no additional consideration to be binding, if made in good faith
34
receiving stolen property elements
-property was actually stolen
-D knew it was stolen
-intent to permanently deprive
35
standard for proving self-defense
state may require D to prove by preponderance of evidence for this affirmative defense
36
juvenile cannot be sentenced to LWOP for
nonhomicide offense
37
what wholly insulates members of Congress for tort liability for statements made on the floor of Congress?
speech and debate clause of Article 1, Section 6
38
subsequent remedial measures are not allowed to prove negligence, but can be admitted...
to show feasibility of alternative design
39
standard for (renewed) judgment as a matter of law
whether there is substantial evidence in the record to support the verdict, resolving all disputes in the winner's favor
40
obscenity is what the average person in the community would find:
1/ appeals to the prurient interest in sex,
2/ portrays sex in a patently offensive way, and
3/ does not have any serious literary, artistic, political, or scientific value (national reasonable person's view)
41
when does a party have the right to demand adequate assurances?
when they have reasonable grounds for insecurity to exist as to the other party's ability to fulfill the contract
42
regulating (truthful) commercial speech is only valid if:
1/ serves substantial government interest, 2/ directly advances the substantial interest, and 3/ is narrowly tailored to serve that interest
43
what does the Eleventh Amendment do?
bars federal court from hearing a case of a private citizen against a state government; bars suits only for damages
44
the govt may not sanction the press' publication of info that is:
1/ not obtained unlawfully, 2/ matter of public concern, and 3/ there is no state interest "of highest order" at stake
45
past recollection recorded
declarant had firsthand knowledge, when the matter was fresh in her memory, which accurately reflected her knowledge, has insufficient memory at trial
46
Requirements for issue preclusion (collateral estoppel)
1/ valid, final judgment on the merits,
2/ same issue actually litigated and determined,
3/ issue essential to judgment, and
4/ due process factor--against whom is preclusion used? did they get their day in court?
47
Requirements for claim preclusion (res judicata)
1/ same claimant against same defendant
2/ valid, final judgment on the merits
3/ case 1 and case 2 must be "same claim" (majority: same T/O, minority: primary rights doctrine)
48
Standards of review on appeal
questions of law--de novo
questions of fact (bench trial)--clearly erroneous
questions of fact (jury trial)--reasonable people could not have made that finding
discretionary matters--abuse
49
When a clerk of the court can enter a default judgment
* The defendant has made no response at all (that is, she has not “appeared”);
* The claim itself is for a sum certain in money;
* The plaintiff gives an affidavit (sworn statement) of the sum owed; and
* The defendant is not a minor or incompetent.
50
Requirements for preliminary injunction
* She is likely to suffer **irreparable harm** if the injunction is not issued;
* She is **likely to win** on the merits of the underlying case;
* The **balance of hardship** favors her (threatened harm to applicant outweighs harm to other party if the injunction is issued); and
* The injunction is in the **public interest**.
51
Types of class actions
1/ Type 1 (prejudice)
2/ Type 2 (injunctive or declaratory relief)
3/ Type 3 (common question or damages)
52
Requirements for class action
1/ numerosity
2/ commonality
3/ typicality
4/ representative adequate
53
PJ constitutional question
Does the defendant have such **minimum contacts** with the forum so jurisdiction **does not offend traditional notions of fair play and substantial justice**?
54
PJ constitutional analysis
a. **Contact**: Purposeful availment and foreseeability;
b. **Relatedness** (“arise out of and relate to”) ; and
c. **Fairness** (specific PJ only): Burden/convenience, state’s interest, and plaintiff’s interest.
55
Process can be served:
Personal service, OR
Substituted service (1) at the defendant’s usual place of abode; (2) with someone of suitable age and discretion; (3) who resides there
56
How a case is removed
D files “notice of removal” in federal court, stating grounds of removal, which means federal SMJ.
D attaches all documents that were served on her in the state action.
D then “promptly” serves a copy of the “notice of removal” on adverse parties and files a copy of the “notice of removal” in state court.
Must remove no later than 30 days after service.
All Ds who have been served must join in removal.
57
Cases that federal courts can never hear
divorce, alimony, child custody, and actions to probate an estate
58
Cases that state courts cannot hear
patent infringement, bankruptcy, some federal securities, and antitrust claims
59
Two limitations on removing to fed ct based on diversity jurisdiction
1/ if any D is a citizen of the forum state (the “in-state defendant rule”); AND
2/ more than one year after the case was filed in state court.
60
When a case can be remanded
1/ lack of SMJ-anytime
2/ other-within 30 days of filing notice of removal
61
Complaint must contain:
a. A statement of grounds of SMJ;
b. A short and plain statement of the claim showing that the P is entitled to relief; and
c. A demand for relief sought (for example, damages, injunction, declaratory judgment).
62
Claims that are waived in not put in the first Rule 12 response (motion or answer)
* A lack of PJ;
* Improper venue;
* Improper process (papers); and
* Improper service of process.
63
Defenses under Rule 12(b) that can be raised later
* A failure to state a claim and a failure to join an indispensable party. These motions can be made as late as at trial.
* A lack of subject matter jurisdiction may be raised at any time.
64
Basic choices for venue
All defendants reside ; or
A substantial part of the claim arose or a substantial part of the property involved in the lawsuit is located (transactional venue).
Note: These provisions above do not apply if the case was removed from state to federal court. For removed cases, venue is in the federal district embracing the state court where the action was filed. The above rules are for cases initially filed in federal court.
65
Claims by multiple plaintiffs or against multiple defendants must:
(1) arise from the same transaction or occurrence (“T/O”); and (2) raise at least one common question of law or fact.
66
When an absentee is "necessary" to a case
* Without the absentee, the court **cannot accord complete relief** among the existing parties (worried about multiple suits); OR
* The absentee’s **interest may be harmed** if she is not joined; OR
* The absentee claims an interest that subjects a party (usually the defendant) to a **risk of multiple obligations**.
67
CAFA grants SMH to class action if:
* At least 100 members;
* Any class member, not just the rep, is of diverse citizenship from any D; and
* The aggregated claims of the class exceed $5 million.
68
Evidence is relevant if...
it has **any tendency** to make the existence of **any fact **of consequence to the determination of the action **more or less probable** than it would be without the evidence
69
Best evidence rule
To prove the content of a **writing, recording, or photograph**, the original must be produced if the terms are material.
Secondary evidence is admissible only if the proponent provides a satisfactory excuse for the original's absence
70
important phrase for supplemental jurisdiction
"common nucleus of operative fact"
71
PJ general rule statement
State law must authorize jurisdiction, and the exercise of such jurisdiction must be constitutional.
72
Statutory limits on PJ
-D is present when served
-D is domiciled in forum state
-D has continuous and systematic business in the state
-consent to jurisdiction
-commits an act covered by the long-arm statute
73
relief from judgment is given for:
■ Clerical mistakes (no time limit)
■ Mistake, inadvertence, surprise, or excusable neglect (reasonable time not to exceed one year)
■ Newly discovered evidence (reasonable time not to exceed one year)
■ Fraud, misrepresentation, or other misconduct by adverse party (reasonable time not to exceed one year)
■ The judgment is void, must be a fundamental flaw such as a lack of subject matter jurisdiction (reasonable time)
■ Judgment has been satisfied, released or discharged; prior judgment on which current judgment is based has been reversed or vacated; enforcement of judgment is no longer equitable (reasonable time)
■ Any other reason justifying relief (reasonable time)
74
exceptions to final order rule (appealability)
■ When there are multiple claims or parties, the court may enter a final order as to fewer than all the claims or parties when it makes an express determination that there is no just reason for delay
■ Orders relating to injunctions
■ Interlocutory Appeals Act—review discretionary with court
Trial court certifies there is a controlling question of law as to which there is a substantial ground for differing opinion
The appellate court must agree to hear the appeal
■ Collateral order rule—the claim or issue is separable from the main suit and is too important to require a final order
■ Certification (or non-certification) of class action—can be appealed within 14 days of order; court of appeals has complete discretion
75
Seventh Amendment only protects right to jury trial...
in federal courts
76
when the P wins the initial judgment, the cause of action is said to have ____ into the judgment
merged
77
when the P loses the initial judgment, the cause of action is said to have ____ into the judgment
barred
78
abstention rule statement
Generally, unless an abstention doctrine applies, nothing prohibits a federal court from hearing a case that is pending in state court. The primary reason a federal court will abstain from hearing a case is when the constitutionality of a state statute is at issue. Even then, the court will retain jurisdiction over the case, but defer ruling on the state constitutional issue until the state court rules on the case.
79
class action rule statement
Under Federal Rule 23, there are five requirements for class certification: (i) the class must be so numerous that joinder of all members is impracticable; (ii) the class must have common questions of law or fact; (iii) the named party’s interest must be typical of the class; (iv) the named party’s representative must be able to ensure fair and adequate representation of the absent class members; and (v) the action must be one of the types listed under Rule 23(b)—there must be a risk of inconsistent results such that trial of each plaintiff’s claim individually would establish inconsistent standards of conduct for the defendant or a risk that trial of one of the plaintiff’s claims could impair the rights of all of the plaintiffs; a defendant must have acted or refused to act on grounds applicable to the whole class and injunctive or declaratory relief would be appropriate to the whole class; or the common questions of law or fact predominate over all of the individual claims and a class action is the superior method of adjudication.
80
appealability rule statements
Ordinarily, only a final order—one that disposes of the whole case (i.e., all claims and all parties) on the merits—is appealable. However, under the Federal Rules, when multiple claims or multiple parties are involved in an action, the court may enter a final judgment as to fewer than all of the claims or parties on (i) an express determination that there is no just reason for delay, and (ii) a direction for the entry of judgment. Unless the trial judge makes such an express determination, the order determining the merits of fewer than all of the claims or dismissing fewer than all of the parties is not a final judgment and is not appealable.
However, in exceptional cases, circumvention of the final judgment rule through the appellate writs of mandamus and prohibition is allowed. Mandamus commands a trial judge to act, and prohibition commands the judge to refrain from acting. The writs are available only if an appeal will be insufficient to correct a problem and the trial court’s actions constitute a serious abuse of power that must be immediately corrected.
Additionally, if the claim or issue is separable from and collateral to the main suit and is too important to require deferring appellate review, it may be classified as a judgment in a separate (“collateral”) proceeding and thus be appealable.
Finally, review under the Interlocutory Appeals Act may be sought. Under the Interlocutory Appeals Act, review is discretionary and may be available when: (i) the trial judge certifies that the interlocutory order involves a controlling question of law, as to which there is substantial ground for difference of opinion, and immediate appeal from the order may materially advance the ultimate termination of the litigation; and (ii) the court of appeals then agrees to allow the appeal.
81
The opinions of experts who are retained in anticipation of litigation but who are not expected to testify at trial may be discovered only upon a showing of...
exceptional circumstances under which it is impracticable to obtain facts or opinions by other means
82
true or false: the recording statute applies to all conveyances and mortgages of an interest in land, including a conveyance of the mineral interests
true
83
dramshop act
creates a cause of action in favor of any third person injured by the intoxicated vendee
84
4 unities for joint tenancy
TTIP: same time, same title, with identical interests, with rights to possess the whole
85
4 types of leaseholds
tenancy for years (end date),
periodic tenancy (continuous until terminated),
tenancy at will,
tenancy at sufferance (evict or new periodic tenancy)
86
options if tenant breaches
(accept T's) surrender, ignore T's surrender, relet
87
constructive eviction
If a landlord does an act or fails to provide some service that she has a legal duty to provide, thereby making the property uninhabitable, the tenant may terminate the lease and seek damages under this theory.
1/ substantial interference, 2/ notice (fails to respond within meaningful time), 3/ goodbye--T must vacate
88
options when implied warranty of habitability is breached
MRRR: move (out and terminate), repair (and deduct), reduct (rent or withhold), remain (seek damages)
89
FHA prevents discrimination for tenants based on:
race, color, religion, national origin, sex, disability, family status
90
landlord liability is generally caveat lessee (buyer beware), except for:
CLAPS: common areas, latent defects (must warn), assumption of repairs, public use rule, short-term lease of furnished dwelling
91
appurtenant easement
two parcels of land, dominant and servient, generally transferrable
92
in gross easement
one parcel of land - servient - not transferrable unless commercial
93
methods of creation for easements
PING: prescription (COAH), implication (pre-existing use), necessity, grant (writing-SOF)
94
termination of easement
ENDCRAMP: estoppel (reasonable reliance), necessity (stopped), destruction (of servient land), condemnation (govt eminent domain), release (must be in writing), abandonment (physical action), merger (unity of ownership), prescription (COAH)
95
profits in real property
when you can take resources from a land (think: hunting, mining); same rules as easements
96
restrictive covenants vs equitable servitudes
covenant - money damages; servitudes - injunction
97
requirements for burden to run
WITHN: writing, intent, touch and concern, horizontal (shared interest) and vertical (non-hostile nexus) privity, notice
98
requirements for benefit to run
WITV: writing, intent, touch and concern, vertical privity
99
implied equitable servitude - common scheme doctrine - requirements
general scheme, notice (AIR: actual, inquiry, record)
100
statute of limitations will not run if there is a DISABILITY at time of possession. what are these disabilities?
infancy, insanity, imprisonment
101
when is acceptance of deed presumed?
handed to grantee, acknowledged by notary, recorded
102
what is required for a deed to be lawfully executed and delivered (LEAD)?
writing signed by grantor, unambiguous description, ID of parties, words of intent to transfer
103
special warranty deed
making promises only on behalf of himself
104
adverse possession elements
COAH: continuous (can tack, if non-hostile privity), open and notorious (sufficiently apparent), actual and exclusive, hostile
105
BFP elements
purchase,
pay valuable consideration,
take without notice of prior conveyance
106
shelter rule
if B is a BFP and takes from O, who had previously conveyed, and then B sell to C, C takes shelter in B's BFP status
107
what are the two things that make up a mortgage?
debt + voluntary transfer of security interest
108
redemption in equity (re: foreclosure)
up to date in sale, pay missed payments and interest
109
statutory right to redemption (re: foreclosure)
6 months to 1 year after sale, pay foreclosure price
110
when will a court grant a variance?
1/ undue hardship,
2/ will not work diminution to neighbor's values
111
analysis for RAP
1/ determine the interests (only applies to future interests: contingent remainders, executory interest, vested remainder subject to open)
2/ how does future interest holder take?
3/ find the measuring life
4/ will we know for sure within 21 years of measuring life's death if future holder can take?
wait&see - as they exist at measuring life's death
USRAP - 90-year vesting
cy pres - as near as possible to grantor's intent
112
life estate holder
cannot commit waste
reversion (O) or remainder (3rdP)
113
fee simple absolute
devisable, transferrable, descendible
114
defeasible fee
-FS determinable (and possibility of reverter - FSDPOR - "as long as...")
-FS subject to condition subsequent AKA right of entry (look for condition words like "provided that", explicit statement that O can retake)
-FS subject to executory interest (to A, but if X occurs, then to B)
115
contingent remainder
unborn/unascertainable people, subject to condition precedent, RAP applies
116
vested remainder
a/ indefeasibly vested - certain to acquire
b/ subject to total divestment - rt to possess could be cut short because of condition subsequent
c/ subject to open - certain to possess, but could be diminutive (RAP applies)
117
executory (future interest)
a/ shifting - cuts off interest of 3rdP
b/ springing - cuts off interest of O
118
characteristics of remainders
socialable, patient and polite (never cuts short, waits its turn)
119
covenant of quiet enjoyment
provides that neither the landlord nor someone with paramount title will interfere with the tenant’s quiet enjoyment and possession of the premises. One way a landlord can breach this covenant is through constructive eviction.
120
true or false: A landlord has no common law duty to repair or maintain the premises; the duty must be provided for in the lease or required by statute or by the implied warranty of habitability.
true
However, the warranty of habitability generally is implied only in residential tenancies.
121
If surrender is not found, the tenant remains liable...
for the difference between the promised rent and the fair rental value of the property
122
If a monetary claim is uncertain or is subject to a bona fide dispute, an accord and satisfaction may be accomplished by...
a good faith tender and acceptance of a check when that check conspicuously states that the check is tendered in full satisfaction of the debt
123
rule statement for admissibility of convictions to impeach witness' credibility
Under the Federal Rules of Evidence, a witness’s character for truthfulness may be attacked by: (i) any felony; or (ii) any crime, if it can be readily determined that conviction of the crime required proof or admission of an act of dishonesty or false statement. However, if a conviction is for a felony that does not involve dishonesty or false statement, the court has discretion to exclude it if it fails the Rule 403 balancing test—i.e., if the probative value of introducing the evidence is substantially outweighed by the danger of unfair prejudice, confusion of the issues, etc.) The term “crime of dishonesty or false statement” is interpreted narrowly by federal courts, and applies only to specific crimes, like perjury, forgery, and criminal fraud.
124
what is the appropriate time to file for relief from judgment (if, for example, fraud is discovered)?
one year
125
rule statement for when a conviction is too remote to impeach credibility
Under the Federal Rules, a conviction is usually too remote and inadmissible if more than 10 years have elapsed since the date of conviction or the date of release from the confinement imposed for the conviction, whichever is the later date.
126
rule statement for impeaching credibility by prior act
Subject to the court’s discretion under Rule 403, the Federal Rules of Evidence permit cross-examination of a witness as to any prior act of misconduct that is probative of truthfulness (i.e., an act of deceit or lying), even if the witness was never convicted. However, extrinsic evidence of the prior act is not permitted. If the witness denies the act, the cross-examiner cannot refute the answer by calling other witnesses or producing other evidence.
127
standard of care for children in negligence cases
It's that of a child of like age, education, intelligence, and experience; in other words, a subjective standard.
However, when a child engages in a potentially dangerous activity that is normally undertaken only by adults, the child will be required to conform to the same standard of care as adults engaging in the activity.
128
standard of care for landowners
Under the traditional rule followed in many jurisdictions, the nature of a duty owed by an owner or occupier of land to those on the premises for dangerous conditions on the land depends on the legal status of the plaintiff with regard to the property, i.e., trespasser, licensee, or invitee. The general rule is that a landowner owes no duty to an undiscovered trespasser, but if a trespasser is discovered or anticipated, the landowner owes a duty to warn of or make safe highly dangerous artificial conditions that the trespasser is unlikely to discover.
129
attractive nuisance elements
(i) dangerous condition present on the land of which the owner is or should be aware;
(ii) the owner knows or should know that young persons frequent the vicinity of this dangerous condition;
(iii) the condition is likely to cause injury; and
(iv) the expense of remedying the situation is slight compared with the magnitude of the risk.
If an attractive nuisance is present, the landowner must exercise ordinary care to avoid a reasonably foreseeable risk of harm to children caused by the artificial condition on his property.
130
lien theory mortgage state
taking out a mortgage does not transfer title
131
title theory mortgage state
taking out a mortgage transfers title to the mortgagor
132
dismissal for failure to prosecute is...
adjudication on the merits
133
specific intent crimes
"students can always fake a laugh even for ridiculous bar facts"
Solicitation
Conspiracy
Attempt
First-degree premeditated murder
Assault
Larceny
Embezzlement
False pretenses
Robbery
Burglary
Forgery
134
malice crimes (reckless disregard for obviously high risk that particular result will occur)
CL murder, arson
135
MPC mental states
-**purposefully** (subj): their conscious object is to cause the result
-**knowingly** (subj): knowledge that their conduct will very likely cause the result
-**recklessly** (subj): consciously disregard a substantial and unjustifiable risk that prohibited result will follow
-**negligently** (obj): fail to be aware of substantial and unjustifiable risk
136
transferred intent crimes
homicide, battery, arson
137
accomplice liability (CL)
principals 1st/2nd, accessory before/after
138
accomplice liability (MPC)
principal
accomplice (intent to assist, intent that crime is committed... liable for any foreseeable crime)
accessory after (separate crime)
139
elements of conspiracy
1/ agreement (CL: bilateral, MPC: unilateral)
2/intent to enter agreement
3/ intent to achieve objective of agreement
CL: no act needed; modern: overt act (mere preparation suffices)
140
when are co-conspirators held liable?
+in furtherance of crime
+foreseeable
141
solicitation elements
1/ asking/inciting/advising another to commit crime
2/ intent that the other commits the crime
142
attempt elements
1/ intent to complete a crime
2/ overt act - beyond mere preparation
CL: "proximity test" - dangerously close to completion
MPC: "substantial step" that corroborates criminal intent
143
defenses to inchoate crimes
abandonment (only in MPC - must be full and voluntary)
legal impossibility
NOT: factual impossibility
144
crimes that can lead to felony murder
BARRK:
burglary
arson
robbery
rape
kidnapping
145
CL murder
unlawful killing with malice aforethought
-intent to kill (or inflict GBI)
-reckless indifference to unjustifiably high risk to human life
-intent to commit a felony
146
theories of felony murder liability
-proximate cause: liable for innocent victims killed not by co-felon
-agency theory: only liable for victims of co-felon
147
MPC murder
1st degree: deliberate and premeditated, FM
2nd degree: reckless indifference to unjustifiably high risk to human life
148
voluntary manslaughter
-adequate provocation
-sudden and intense passion
-D was in fact provoked
-not sufficient cool-down time
-D did not in fact cool down
149
involuntary manslaughter
-criminal negligence (CL) or recklessness (MPC)
-in some states, during non-BARRK felonies
-must be cause-in-fact, proximate cause
150
battery elements (criminal)
unlawful application of force
bodily injury or offensive touching
aggravated if: deadly weapon, seriously bodily injury, child/woman/police officer
151
assault elements (criminal)
attempt to commit battery, OR
**intentional creation** of **reasonable apprehension** of **imminent bodily harm**
aggravated if: deadly weapon, intent to rape or murder
152
false imprisonment elements (criminal)
unlawful confinement
without person's valid consent
no reasonable escape route
153
kidnapping elements
movement of victim, OR
concealment of victim in a "secret" place
154
larceny elements
a taking
and carrying away
of tangible personal property
of another
by trespass (without consent)
with intent to permanently deprive
155
false pretenses
obtaining title
to personal property of another
by intentional false statement
with intention to defraud
156
embezzlement
fraudulent
conversion
of personal property
of another
by persons with lawful possession
157
robbery
a taking
of personal property of another
from the other's person or presence
by force of threat of immediate death
with intent to permanently deprive
158
receipt of stolen property
receiving possession and control
of stolen personal property
known to have been obtained by crime
by another person
with intent to permanently deprive
159
extortion
obtaining property
by threats to do harm or expose info
160
forgery
making or altering
a writing with legal significance
so that it's false
with intent to defraud
161
burglary
a breaking (actual or constructive - fraud, threat)
and entry
of a dwelling
of another
at night
with intent to commit a felony
162
arson
malicious (reckless disregard of risk)
burning (charring is sufficient)
of a dwelling
of another
163
when is intoxication a defense to crimes
voluntary intoxication: defense to specific intent
involuntary intoxication: defense to all crimes
-w/o knowledge
-under duress
-according to medical advice
164
M'Naghten Rule (insanity defense)
D lack ability to know wrongfulness of actions
165
irresistible impulse (insanity defense)
D lacked capacity for self-control
166
Durham/NH (insanity defense)
product of mental illness; "but for" the MI, crime wouldn't have happened
167
ALI/MPC insanity defense
D lacked ability to **appreciate** criminality of conduct, OR **conform** their conduct to requirements of law
168
self-defense elements
non deadly: -reasonably believe is necessary - no duty to retreat
deadly: -D is w/o fault -confronted with unlawful force -reasonable belief of imminent death or GBH -generally: no duty to retreat, unless retreat jurisdiction (exception: D's own home, during lawful arrest, robbing victim)
aggressor can still defense if -effectively withdraw -sudden escalation
169
right to defend others
reasonable belief other has right to defend
minority: must have familial relation
170
other defenses to crime
-duress
-necessity
-mistake of fact (specific intent crimes only)
-entrapment (criminal design originated with police, D not predisposed to commit crime)
NOT: mistake of law
171
a warrant must have:
probable cause + particularity
172
exceptions to warrant requirement
SITA
plain view (PC evidence of crime)
Terry frisk (RS)
Public school (reasonable grounds, not excessively intrusive)
inventory
automobile (PC evidence of crime)
consent (voluntary, apparent authority)
hot pursuit (15 min)
evanescent evidence
emergency aid
173
what do you have no reasonable expectation of privacy of?
sound of voice
handwriting
paint color of car
bank records
car location (driveway, public st)
open fields
flying in public airspace
odors from luggage, car
garbage on curb
174
Miranda rights
■ Right to remain silent
■ Anything that is said may be used in court
■ Right to an attorney
■ If can’t afford attorney, one will be appointed
175
exceptions to exclusionary rule
■ Independent source
■ Attenuation = intervening act or circumstance
■ Inevitable discovery by police
■ Live witness testimony
■ In-court identification
■ Good faith reliance on a defective search warrant
■ Use of evidence to impeach
176
true or false: as a state legislator, she was absolutely privileged to read the story into the record on the floor of the legislature
true
177
Sixth A - right to trial by jury for criminal cases (6 mo imprison). Seventh A -
right to trial by jury in civil cases (more than $20)
178
true or false: Federal Rule 4 provides that summons and complaint may be served on an individual other than an infant or incompetent pursuant to the law of the state in which the district court is located
true
179
true or false: The Double Jeopardy Clause prohibits retrying a defendant whose conviction has been reversed on appeal for any offense more serious than that for which she was convicted at the first trial
true
180
Where two persons are tried together and one has given a confession implicating the other, the general rule is that the Sixth Amendment right to confront adverse witnesses prohibits the use of such a statement. As exceptions to the general rule, the statement may be admitted if:
(i) all portions of the statement referring to the other defendant can be eliminated;
(ii) the confessing defendant takes the stand and subjects himself to cross-examination with respect to the truth or falsity of what the statement asserts; or
(iii) the confession of the nontestifying co-defendant is being used to rebut the defendant’s claim that his confession was obtained coercively, in which case the jury must be instructed as to the purpose of the admission.
181
Congress police power is...
MILD (military bases, federal Indian reservations, lands and territories, D.C.)
182
Dormant Commerce Clause is the same thing as...
Negative Commerce Clause - State laws are unconstitutional if they place an undue burden on interstate commerce
related: Privileges and Immunities Clause of Article IV or EPC
183
ex post facto applies only to...
criminal cases
can’t retroactively make an act criminal and can’t increase punishment or reduce evidence needed to convict after an act has been committed
184
if the discrimination against out-of-state entities burdens interstate commerce, the action is invalid, UNLESS:
1/ furthers an **important, noneconomic state interest** and there are **no reasonable** nondiscriminatory **alternatives**
2/the state is a **market participant** (i.e. purchase, seller, subsidizer)
3/ Congress has **approved** that kind of discrimination
4/ it involves govt action regarding the performance of a traditional govt function
COMMERCE CLAUSE
185
if the action denies the out-of-state person important economic interests (i.e. livelihood) or civil liberties and the discrimination is intentionally protectionist in nature, the law is invalid, UNLESS
the state has a substantial justification and there are no less restrictive means
Privileges and Immunities Clause of Article IV
-only individual, citizen plaintiffs
186
rule statement if state/local action does NOT discriminate against out-of-state entities
if the law burden interstate commerce and the burden outweighs the state's interest in the action, the law is invalid.
187
state taxes cannot...
burden or discriminate against out-of-state commerce
188
considerations for procedural due process
1/ importance of interest to individual
2/ ability of addt'l procedures to increase the accuracy of the fact finding
3/ govt's interests
189
takings analysis
1/ is there a govt confiscation or physical occupation of property? OR does the govt's regulation leave no reasonable economically viable use of the property?
2/ if yes, is it for public use? does the govt act out of a reasonable belief that its action will benefit the public?
3/ if yes, just compensation must be paid. must pay economic market value of property in hands of OG owner
190
due process v equal protection
due process: affects everyone
equal protection: affects certain groups of people
191
if a law is facially neutral, there must be both a discriminatory...
intent and impact to the law to find a classification.
192
defamation liability standards
public official/figure: actual malice, compensatory presumed/punitive
private figure, public concern: negligence and actual injury; compensatory for damage, prove actual malice for punitive damages
private figure, private concern: unclear, punitive damages presumed
193
public forums and designated public forums
subject matter neutral
viewpoint neutral
time/place/manner regulation allowed if important government interest; leave open alternative channels
194
limited public forum (open to certain groups) and non-public forums (airports, military bases)
must be viewpoint neutral, but not subject matter neutral
reasonable regulation for legitimate govt interest
195
requirements for standing
1/ injury-in-fact (specific, not theoretical)
2/ causation
3/ redressability
196
Congress can delegate if there is an...
intelligible principle
197
treaties
on par with federal law, but can't be unconstitutional
198
executive agreements with foreign countries
enforceable absent conflict with federal law, treaties, or Constitution
199
Privileges or Immunities Clause of the 14th Amendment
state laws that interfere with the right to (interstate) travel are unconstitutional
200
Prohibition on bills of attainder
can’t use legislative acts to inflict punishment on specific people without a trial
201
restrictions on Free Speech
if content-based restriction: SS
if content-neutral restriction: IS
202
a regulation on free speech is reasonable if it's not....
■ **overbroad** = if prohibition that regulates substantially more speech than necessary, void as to everyone
■ **vague** = prohibits regulation that fails to give reasonable notice of what is prohibited
■ gives an official unfettered discretion over speech issues is facially void
203
unprotected or less protected speech categories
incitement
obscenity
commercial speech (unlawful or false/misleading - can regulate; otherwise, IS; advertisers can make disclosures if not overly burdensome/could help avoid deception)
defamation
204
freedom of association
govt must pass SS:
■ Individual actively affiliated with the group
■ Knowing of illegal activity
■ With intent to further those activities
205
speech regulation of government employees
■ If pursuant to employee’s official duties = can regulate/punish
■ Private speech (not pursuant to job duties) + matter of public concern = balance employee’s constitutional rights and government’s interest as employer in efficient job performance
■ Private speech + not a matter of public concern = employer has broad discretion to punish employee’s disruptive speech
206
Establishments Clause
■ Prohibits coercion and compels neutrality
■ Sect preferences trigger strict scrutiny
■ Law/action that isn’t neutral may still be permitted based on history, tradition, or the Founders’ intent
■ Neutral benefit program valid even if independent choices of recipients leads public money to go to religious organization
■ School-sponsored religious activity invalid (for example, requiring Bible study as part of public school curriculum) but accommodation of religion may be valid (for example, coach’s silent prayer on field after public high school game)
207
Free Exercise Clause
■ Can’t punish conduct solely because it’s religious
■ General conduct regulations that incidentally burden religious practice = generally valid (in other words, can’t use Clause to challenge neutral law of general applicability)
■ Laws that discriminate based on religion (not facially neutral or not generally applicable by design) = strict scrutiny
■ Religious exemptions from neutral laws generally not required
Exception: Amish exempt from mandatory secondary education
Exception: Exemption from employment discrimination laws for ministerial positions (including teachers at religious schools)
■ Can’t limit eligibility for a government benefit (for example, program supplying goods to private schools) to nonreligious organizations
208
Rule 26(f) conference
where parties in a civil lawsuit discuss and develop a proposed discovery plan, including the nature and basis of their claims and defenses, potential settlement possibilities, the scope of discovery needed, key witnesses, relevant documents, and any issues regarding preservation of discoverable information, all with the goal of setting a structured path for gathering evidence during the case
209
true or false: if there is a statute designed to protect a class of people (i.e. minors, undocumented immigrants), that class of people can be prosecuted with conspiracy to violate the statute
false
210
the principle of indemnity permits...
the shifting of the entire loss between tortfeasors
211
true or false: Congress' powers to tax and to spend are very broad, and there is no requirement that what is to be spent is in any way related to what is taxed
true
212
true or false: a purchase money mortgage is considered senior to a judgement lien, even if filed after
true
213
true or false: when a mortgagee takes possession of the property in order to avoid waste, the mortgagee becomes like an owner, rather than an agent, and has liability as such
true
214
true or false: if a subsequent purchaser assumes the mortgage, the original owner will be equally liable as a the subsequent purchaser
false: the purchaser is liable first, and the OG owner is liable as a surety
215
true or false: if a party moves to exclude prospective witnesses from the courtroom before they testify, the court must order the witnesses excluded
true
216
true or false: the best method for granting relief from judgment based on evidence that shouldn't have been admitted is to appeal the conviction
false: the defendant should first move for a new trial
217
true or false: if a plaintiff follows the proper process to waive service, the defendant must allow for waiver, unless good faith reason not to, or else incur expenses
true
218
if a party serves sanctions on the other party, the other party is not liable if they correct/withdraw within...
21 days of service
219
to ask the court to modify a final pretrial order, the party must show...
that without the modified order, they will suffer **manifest injustice**
220
supplemental jurisdiction can be granted to another plaintiff's claim if:
1/ same case or controversy (common nucleus of operative fact), AND 2/ the second plaintiff doesn't break diversity
221
true or false: at common law, parents are not vicariously liable for the torts of their child.
true.
they can, however, be liable for negligence, if they knew about their child's violent tendencies, for example, and did not act reasonably under the circumstances.
222
true or false: motion for relief from judgment to correct clerical mistakes must be made within reasonable time
false; can be raised at any time
223
The federal removal statute provides that the notice of removal should be filed in the federal district court for the district that...
geographically encompasses the state court from which the action is being removed.
224
can a trial judge presiding over a lawsuit call a witness to the stand and question her?
yes, if the parties can cross-examine
225
true or false: Congress a monopoly over the delivery of mail
true
226
If a government employer seeks to fire an employee for speech-related conduct when the speech involved a matter of public concern but is not made pursuant to her official duties, the courts must carefully balance...
the employee's rights as a citizen to comment on a matter of public concern against the government's interest as an employer in the efficient performance of public service.
227
Where the seller is a merchant, the risk of loss does not pass to the buyer until...
the buyer takes physical possession of the goods.
228
Res ipsa loquitur means the thing speaks for itself. It is appropriate in situations where...
an injury does not usually occur unless someone was negligent and the plaintiff does not know which of the defendants caused the injury.
While res ipsa loquitur is sometimes not available where more than one person may have been in control of the instrumentality causing the injury, it is available in a case where a particular defendant had the power of control over the site of the injury.
229
judgments can be enforced ____ days after entry
30
230
Property Clause of Article IV, Section 3
Congress has the power to make all rules and regulations necessary for federal property (including military bases)
231
true or false: regulation of foreign commerce is solely a federal power
true
232
true or false: additur is allowed in federal court
false
233
true or false: remittitur is allowed in federal court
true; must give option to accept, or new trial
234
true or false: public nudity is protected by the First Amendment
true, but it is subject to content-neutral regulations
235
true or false: dismissing a federal-law claim divests the federal court over supplemental jurisdiction over a state-law claim arising from same T/O
false; in the court's discretion
236
true or false: in order for an expert to be allowed to testify, the party must show that their methods are reliable
true
237
true or false: an appellate court can remedy a plain error that burdened substantial rights, even without an objection
true
238
true or false: an essential term of the contract for employment is salary
true
239
true or false: inter-branch disputes on foreign affairs are subject to political question doctrine when they concern the validity of a federal statute
false
240
damages: restitution theory
value of benefit conferred; to prevent unjust enrichment
241
true or false: a defendant's failure to respond to a waiver of service means the plaintiff can go ahead and enter for default
false; plaintiff must then formally serve process (although she can request for damages)
242
a title insurance contract is one of indemnity, meaning...
it insures the individual named along with their devisees and heirs so long as they still own the property
243
true or false: in order to be sued for conversion, the actor must have known the person's property did not belong to them
false
244
true or false: a springing executory interest still holds even after the grantor's death
true; it remains with the heirs until the specified event happens
245
when does someone forfeit confrontation clause AND hearsay objection?
when they rendered the declarant unavailable FOR THE PURPOSE OF not testifying
246
transfers to a different federal court are granted...
in the interest of justice and the convenience of parties and witnesses
247
true or false: when the written agreement between two parties does not reflect their agreement due to mutual mistake, the court may reform the contract to adhere to their actual agreement
true
248
true or false: an attorney can object to a witness' statement after they have left the stand
false; must object immediately (and must have a stated reason to preserve for appeal)
249
each TRO must state:
why it was issued, and what actions it restrains
250
the Take Care Clause requires the President to...
execute the laws Congress passes faithfully
251
true or false: a stockholder can give an opinion on why the stock price went down, since it's his property
false
252
punitive damages are only allowed...
with proof of defendant's willful or wanton misconduct
253
true or false: offering the bank title to your property when you're in default on your only mortgage is an acceptable substitute for foreclosure
true
254
what is a testimonial statement?
when the primary purpose is to assist in a criminal investigation
255
content neutral speech restrictions require...
intermediate scrutiny (narrowly tailored to further substantial government interest)
256
a state tax is valid if...
it is nondiscriminatory and does not directly apply to federal government
257
true or false: res ipsa loquitur provides an inference of negligence
true; but not conclusive
258
true or false: if the burden on interstate commerce is minimal compared to the state's interest, the nondiscriminatory law is constitutional
true
259
a subcontractor revoking its offer after a general contractor uses it to bid must pay the GC....
expectation damages, because an option contract was formed
260
true or false: the defense may offer extrinsic evidence of a witness' PIC for the limited non-hearsay purpose of impeaching the witness, after the witness was given the opportunity to explain/deny
true
261
for the action of a private entity to satisfy the "state action" requirement, there must be...
significant involvement of the government in the private entity
262
true or false: a warrant is not required to obtain detailed cell phone location data
false
263
extrinsic evidence may be admitted to impeach testimony by raising questions about...
a witness' ability to perceive events (such as intoxication or loud noise)
264
if a state law neither burdens a fundamental right nor groups people into suspect classifications, the standard is...
rational basis
265
true or false: if a defendant makes a counterclaim, the plaintiff needs time to respond before the defendant can move for judgment on pleadings
true
266
does collecting DNA sample from felony arrestees violate 4th A?
no
267
true or false: a third party beneficiary must consent to make a modification to a contract valid
false, unless his rights vested
268
true or false: the assignment of a promissory note automatically transfers the mortgage to the assignee
true
269
if a counterclaim arises out of the same T/O, it is:
compulsory
270
true or false: a deed conveyed to an already-deceased person is void
true
271
true or false: possibility of reverter is subject to RAP
false
272
recording statutes protect _____, not _____
BFPs, not creditors
273
true or false: a motion to dismiss for forum non conveniens presumes the original venue was proper
true
274
service must be completed within ____ days of filing
90
275
SCOTUS only has original jurisdiction over cases involving:
ambassadors, ministers and consuls, and case in which a state is a party
276
if Congress is trying to alter people's rights outside of the legislative function...
it must be presented to the President for veto (and get a majority vote in Senate)
277
slander elements
1/ defamatory language
2/ of the plaintiff
3/ published to third party
4/ causing damage to P's reputation
278
true or false: courts will find liability in tort law for purely economic damages to a third-party
false
279
true or false: the perfect tender rule applies to installment contracts
false
280
