MBE Flashcards
(35 cards)
equal dignities rule
Under the “equal dignities” rule, when the act performed by an agent on behalf of the principal is required by law to be in writing, the agent’s authority must also be established in writing.
doctrine of pure comparative negligence
plaintiff’s contributory negligence is not a complete bar to recovery. Instead, the plaintiff’s full damages are calculated by the trier of fact and then reduced by the proportion that the plaintiff’s fault bears to the total harm
duress as a defense
NEVER a defense to intentional murder
destination K
If the contract specifies delivery at a particular location, it is a destination contract, and the risk of loss passes to the buyer when the seller tenders at the place specified in the contract
wild animal and trespassor
an owner of a wild animal is generally not strictly liable to a trespasser who is injured by the wild animal, except for injuries caused by a vicious watchdog
13th Amend
Pursuant to the Thirteenth Amendment, Congress has the power to adopt legislation rationally related to eliminating the “badges or incidents” of slavery. This power has been broadly interpreted to allow Congress to regulate both private and government action, including racial discrimination by private housing sellers.
Supremacy Clause-Preemption
When Congress intends for a federal law to occupy the field, such as is the case with regard to the registration of aliens in the United States, federal law preempts state law dealing with same subject even if federal law does not expressly preempt state law with regard to that subject.
spot zoning
A rezoning that affects a small number of parcels of land, most typically a single parcel, in manner that is inconsistent with the zoning of the neighboring land (and the comprehensive plan where one exists) and that usually benefits the owner of the parcel or parcels to the detriment of the neighboring land constitutes impermissible “spot zoning.”
wharton rule
However, under the Wharton Rule, if a crime requires two or more participants, there is no conspiracy unless more parties than are necessary to complete the crime agree to commit the crime.
burden of persuasion
While the prosecution bears the burden of persuasion with regard to each element of a crime, including the necessary intent, the burden of persuasion with regard to an affirmative defense, such as duress, that does not negate the elements of the crime may be placed on the defendant without violation of the Due Process Clause.
Conspiracy
At common law, a conspirator cannot be convicted of conspiracy if all other conspirators are acquitted at the same trial, because there must be more than one conspirator to have a conspiracy.
Notice Statute
The jurisdiction has adopted a notice recording act. Under this type of recording act, a subsequent purchaser for value of real property who does not have notice of a prior conveyance of the property has superior rights to the property over the prior transferee
political affiliation- punished or deprived of public employment
A person may only be punished or deprived of public employment based on their political affiliation if that individual (i) is an active member of a subversive organization, (ii) has knowledge of the organization’s illegal activities, and (iii) has a specific intent to further those illegal objectives
defense of another
Defense of another is permitted upon reasonable belief that the defended party would be entitled to use self-defense. The defender may use force that is proportionate to the anticipated harm to the other party. A person may use deadly force only if he has a reasonable belief that force sufficient to cause serious bodily injury or death is about to be intentionally inflicted upon him.
Cardozo Rule
A duty of care is generally owed to all foreseeable plaintiffs. The majority rule for determining whether a plaintiff is a “foreseeable plaintiff,” is whether the plaintiff is within the zone of foreseeable harm. This rule is referred to as the “Cardozo view.”
Rainwater
Rainwater is classified as surface water or more precisely as diffused surface water. As such, although there are restrictions on the ability of a landowner to prevent such water from entering his property or altering the flow of such water off his property, a landowner may generally impound such water on her property and may make whatever reasonable use she wishes of that water
Uniform Vendor and Purchaser Risk Act
A minority of jurisdictions have adopted the Uniform Vendor and Purchaser Risk Act. Under this act, the risk of loss falls upon the owner because the buyer did not have possession of the warehouse at the time of the destruction of the warehouse.
Factual impossibility as a defense
not a defense to solicitation
Juvenile impeachment
The defendant in a criminal case who testifies on his own behalf may not be impeached by a juvenile adjudication to show that the defendant is untruthful.
Aliens
Congress has plenary power over aliens. Aliens have no right to enter the United States and may be refused entry for reasons such as their political beliefs
Joint tenancy- alienable
Although as a general rule a joint tenant’s interest is freely alienable during his or her lifetime without the consent of the other joint tenant, that interest cannot be devised in a will.
spousal immunity privilege
spousal immunity privilege applies only in criminal cases and only where the witness and a party are currently married, and may be asserted only by the witness-spouse
Rule 11
Under Rule 11, the court generally has discretion to impose a monetary sanction against the plaintiff’s attorney for violating Rule 11(b). However, under Rule 11(c), the court is not permitted to impose a monetary sanction against a represented party for violating the requirement that legal contentions be warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law.
SMJX objection
An objection to subject-matter jurisdiction can be presented by any party at any stage of a proceeding, including on appeal.
