MBE Flashcards
(120 cards)
1
Q
What is the test for reasonable time, place, and manner restrictions?
A
1) content neutral
2) narrowly tailored to important gov’t interest
3) leaves open ample alternative channels
2
Q
When can you admit a statement against interest?
A
1) unavailable
2) against their pecuniary, penal, or proprietary interest when made
3
Q
When can you admit a statement of a party-opponent’s co-conspirator?
A
1) made in furtherance of the conspiracy
2) by a participant in it
4
Q
Explain joint and several liability, contribution, and indemnification. What happens if one of the defendants also suffered damages in a comparative contribution state?
A
1) plaintiff can collect the full amount of damages from any defendant she chooses
2) that defendant can then seek contribution (partial payment) or indemnification (entire repayment) from his co-defendants
3) the co-defendants are liable in proportion to their fault
4) if the paying defendant also suffered damages, he can recover for that from the other defendants (minus the amount he was at fault for)
5
Q
When is a school search for evidence of a crime OK?
A
1) only need reasonable grounds for the search
2) moderate chance of finding evidence
3) not excessively intrusive
4) means are reasonably related to the objectives of the search
6
Q
What are the elements of false imprisonment?
A
1) intentional
2) confinement
3) in a bounded area w/ no reasonable means of escape
4) where the plaintiff KNEW they were being confined or were harmed by it
7
Q
What are the covenants in a general warranty deed and what do they do? What is the difference between a present covenant and a future covenant?
A
Present Covenants: breached at delivery + create COA that is only enforceable by the buyer
1) seisin (title and possession)
2) against encumbrances
3) right to convey (grantor can transfer)
Future Covenants: compel seller to assist the buyer (breached if buyer disturbed in possession)
1) further assurances (protect title)
2) warranty (defend)
3) quiet enjoyment (no disturbance)
8
Q
What are the elements of burglary?
A
1) breaking and entering
2) of the dwelling of another
3) at nighttime
4) with the intent to commit a felony therein
9
Q
What are the elements of larceny?
A
1) the taking and carrying away
2) of the personal property of another
3) from their person or presence
4) by trespass
5) with the intent to permanently deprive (intent must exist @ the time of taking)
10
Q
What are the elements of larceny by trick?
A
1) misrepresentation of past or present fact
2) fraudulently convincing another person to give possession of personal property
3) with intent to permanently deprive
11
Q
What are the elements of false pretenses?
A
1) misrepresentation of past or present fact
2) fraudulently obtaining title to another’s property
3) with intent to permanently deprive
12
Q
What are the elements of robbery?
A
Larceny + force or immediate threat of force
13
Q
What is a novation, and how does it affect parties’ rights under the contract?
A
Agreement among all parties to substitute a new 3rd party for one of the parties in a K.
This releases the original party who has been substituted, so he is no longer liable for the new 3rd party’s performance.
14
Q
What is the “in-state defendant” rule for removal of cases to federal court, and when does it apply?
A
This applies only when removal is based solely on diversity of citizenship jurisdiction.
A case cannot be removed to federal court on the basis of diversity jurisdiction if a defendant is a citizen of the state where the action was filed.
15
Q
What happens to the promises in a land sale contract when the deed is executed and delivered?
A
The K merges into the deed, and the terms of the K become meaningless. The deed controls, and it does not incorporate the title terms of a K.
For example, if a land sale K promised to convey marketable title (but the land was in fact NOT marketable because it had been acquired by adverse possession), once the deed was delivered at closing the contract merged into it. If the deed contained no covenants of title, the terms of the K are meaningless and the deed controls the seller’s liability.
16
Q
What is the trial judge’s responsibility regarding a defendant’s competency?
A
The judge MUST raise the issue of competency if it appears that the defendant might be incompetent. This is a constitutional obligation to conduct further inquiry.
17
Q
Can proper venue be waived?
A
Yes.
Objections must be asserted in the first response to the complaint (answer or R12(b) motion).
18
Q
What happens when a suspect invokes her 5th Amendment right to remain silent?
Can you be questioned about an unrelated offense?
A
The police cannot badger the accused.
Yes - courts have ruled that if the police scrupulously honor this request, they can re-warn the accused and later resume questioning, at least about a different crime.
19
Q
What happens when a suspect invokes her 5th Amendment right to counsel?
Can you be questioned about an unrelated offense?
A
All questioning must cease, about this crime and any unrelated crime, until the accused is provided with an attorney or initiates further questioning himself.
No.
20
Q
When does the 6th Amendment right to counsel attach?
Can you be questioned about an unrelated offense?
A
After formal proceedings have been initiated (charging).
Yes, because this right is offense-specific.
21
Q
What is the “question first, warn later” rule for confessions and evidence obtained as a result of a Miranda violation?
A
Confessions
1) If the police get a confession w/o first giving Miranda warnings, THEN give warnings and get a second confession, the second confession will be inadmissible if this “question first, warn later” scheme was intentional.
2) But the second confession may be admissible if the original unwarned questioning seemed unplanned and the failure to give Miranda warnings seemed inadvertent.
Non-Testimonial Evidence
1) If the police fail to give Miranda warnings and the suspect gives them info that leads to non-testimonial evidence, the evidence will be suppressed if the failure was purposeful.
2) But if the failure was not purposeful, the evidence probably will not be suppressed.
22
Q
When is something a private nuisance?
A
Substantial interference with the use/enjoyment of one’s land.
The interference must be offensive, inconvenient, or annoying to the average person in the community. It is not a substantial interference if it merely interferes with specialized use of the land (e.g., dog whistle factory / dog breeder).
23
Q
When is something a public nuisance?
A
Unreasonable interference with the health, safety, or property rights of the community.
24
Q
When are other bad acts admissible for purposes other than to show the defendant’s propensity to commit the crime charged?
A
MIMIC
Motive
Intent
Mistake (absence of)
Identity
Common plan or scheme
25
Where is venue proper in federal civil actions?
1) the district where any defendant lives (if all Ds are residents of the state where the district is located)
2) the district where a substantial part of the events giving rise to the claim occurred
26
Imagine a construction contract where the builder already began performance by purchasing materials and the owner breaches. What is the builder entitled to in a breach of contract action?
Expectation damages = expected profits
+
Reliance damages = the cost incurred prior to the breach
27
What are the elements of battery?
1) unconsented-to touching
2) harmful or offensive
3) intent to bring about such harmful or offensive contact
4) causation
28
What is the intent requirement for intentional torts?
Knowing with substantial certainty that something will happen + acting with the desire to produce the legally forbidden consequence
(Defendant does not need to intend the specific injury that results)
29
What are the elements of the attractive nuisance doctrine?
Landowner has duty to exercise ordinary care to avoid reasonably foreseeable risk of harm to children (even if trespassing) caused by artificial conditions on his property.
Plaintiff must show:
1) dangerous condition on the land that owner is/should be aware of
2) owner knows/should know that children might trespass
3) condition is likely to cause injury
4) the expense of remedying the situation is slight compared with the magnitude of the risk
30
What should the defendant understand to enter a valid guilty plea and waive their right to a jury trial?
1) nature of the charge
2) maximum possible penalty
3) right not to plead guilty
4) by pleading guilty, defendant waives right to trial
31
Explain the difference between an accomplice and an accessory after the fact.
Accomplice, with intent that the crime be committed, aids, counsels, or encourages the principal before or during the commission of the crime.
Accessory after the fact is one who receives, relieves, comforts, or assists another, knowing he has committed a felony, in order to help the felon escape arrest, trial, or conviction.
32
What is a pretrial order, and can it be modified?
A pretrial order controls the subsequent course of an action. The order can be modified "only to prevent manifest injustice," and this can be done even after the jury has been selected and the trial has begun.
33
What are the buyer's remedies for anticipatory breach by a seller?
Buyer can treat the anticipatory repudiation as a total breach. Remedy is the difference between the K price and market price (at time of breach) or the cover price. Cover must be commercially reasonable.
34
Can a legislator be liable for defamation for statements made on the floor of the legislature?
No.
This is an absolute privilege - remarks made by federal and state legislators in their official capacity during legislative proceedings are absolutely privileged.
35
When is a state tax valid under the Commerce Clause?
1) does not discriminate against interstate commerce
2) substantial nexus between the activity taxed and the taxing state
3) the tax is fairly apportioned
4) fairly relates to services or benefits provided by the state
36
What does the Privileges & Immunities Clause of the IV Amendment protect against?
Is there a limitation?
Discrimination by a state against nonresidents when this discrimination involves fundamental rights.
States CAN discriminate against OOS citizens if:
1) necessary to achieve an important purpose and
2) no less restrictive alternatives
37
What does the Privileges & Immunities Clause of the XIV Amendment protect against?
Denial of rights of national citizenship such as interstate travel, access to sea ports, and right to demand federal protection on the high seas.
38
Discuss the 4th Amendment reasonable expectation of privacy with respect to another person's body/home.
The exclusionary rule only applies to exclude evidence obtained in violation of ONE'S OWN reasonable expectation of privacy. Ownership of the property seized doesn't automatically give rise to a reasonable expectation of privacy (TOTC).
39
What's required for a photo to be admitted as demonstrative evidence?
Authentication - testimony that the photo is a faithful reproduction of the object/scene depicted.
40
What is the test for obscenity?
1) appeals to the prurient interest (local community standard)
2) patently offensive (local community standard)
3) no artistic, scientific, literary, political value (national reasonable person standard)
41
When is character evidence admissible in a civil case?
If character is directly at issue in a civil case:
1) defamation
2) child custody
3) fraud
4) negligent entrustment
42
When is a co-defendant's confession implicating the other defendant admissible?
Any of the following:
1) can eliminate all references to the other defendant
2) used to rebut the other defendant's claim that there was coercion (requires limiting jury instruction)
3) co-defendant can take the stand + be subject to cross-examination
43
What's the rule for providing evidence of insurance coverage during discovery?
A party MUST provide evidence of insurance if it might cover all or part of any judgment that might be entered (even though this will probably not be admissible at trial). The party must do this without waiting for a discovery request from the other party.
44
Defendant is tried for murder, but convicted of manslaughter. On appeal, the conviction is reversed on procedural grounds. What is the most serious crime the prosecution can attempt to re-try the defendant for?
Manslaughter.
At the second trial, the defendant cannot be tried for a crime that's more serious than that for which she was convicted at the first trial.
45
When must notice of removal be filed?
30 days.
(Within 30 days of service of process, or if the case isn't initially removable, within 30 days of it becoming removable. If removal will be based on diversity jurisdiction, it cannot be had if more than 1 year has passed since the suit was filed)
46
What are the burdens of proof for the insanity defense?
Can a court, via jury instruction, place a lighter burden on the defendant than that specified in a state statute?
Federal courts - require D to prove by clear and convincing evidence
States - can require D to prove by clear and convincing evidence OR by preponderance of the evidence
Other states + MPC - prosecution must prove D’s sanity beyond reasonable doubt
47
When do a third party beneficiary's rights vest?
1) learn of K and agree
2) learn of K and detrimentally rely
3) learn of K and sue to enforce their rights
48
Explain promissory estoppel.
Detrimental reliance
Foreseeable detrimental reliance in the form of some sort of performance can make a promise enforceable even if lacks consideration.
ONLY USE RELIANCE IF THERE IS NO CONSIDERATION.
49
When is the best evidence rule applicable?
When the contents of a writing are in dispute.
The OG writing must be produced when proving the material terms of the writing. Secondary evidence is OK, but only after it's been shown that the OG is unavailable.
50
What are the rules for government regulation of speech / press?
1) content-based = strict scrutiny (narrowly tailored to compelling government interest)
2) content neutral = intermediate scrutiny (viewpoint neutral + rationally related to a legitimate government purpose + ample alternative channels)
51
What's the remedy for conversion?
FMV of the chattel @ time of conversion.
52
What's the remedy for trespass to chattels?
Cost of repair.
53
Is title successfully acquired by adverse possession marketable?
No. The owner must bring suit to quiet title before it can be marketable.
"The buyer doesn't have to buy a lawsuit."
54
When is an offer irrevocable?
1) unilateral K - performance has begun
2) option K
3) merchant's firm offer
4) foreseeable reliance
55
Explain the mailbox rule and its exceptions.
Acceptance is effective on dispatch.
1) The mailbox rule doesn't apply to irrevocable offers like option Ks.
(Rationale - the rule is meant to protect offerees from the offeror's sending a revocation in the mail at the same time as acceptance, but option Ks are irrevocable so this isn't a concern!)
2) If the offeree sends a rejection first, THEN an acceptance, whichever arrives first is effective
56
How do you terminate an offer?
1) lapse of time
2) revoke (unless irrevocable)
3) rejection by offeree
4) death of either party (unless irrevocable offer or K was already formed)
57
If a buyer keeps non-conforming goods, what may she receive as damages?
Difference in value between the goods accepted and goods ordered.
(+ incidental and consequential damages)
58
If a buyer rejects non-conforming goods and covers, what is her remedy?
Difference between the K price and the cost of buying conforming goods.
59
How do you obtain a default judgment?
Clerk may enter a default judgment if 1) amount of damages is specific and certain; and 2) D didn't appear.
If D has appeared in some way, the judge must enter it, and D is entitled to notice.
60
Define criminal assault.
1) attempted battery
or
2) intentional creation of reasonable apprehension of imminent bodily harm
61
Explain the Contracts Clause.
Applies to state laws that retroactively invalidate already-existing contracts.
Prohibits states from retroactively + substantially impairing K rights unless gov't is acting to serve an important government interest + narrowly tailored.
62
What is the seller's remedy if the buyer breaches / refuses to accept goods?
Difference between the K price and the market price (or resale price).
63
What do lost volume sellers recover for breach?
Lost profits (K price - cost to the seller)
64
When does the Statute of Frauds apply?
MYLEGS
M(arriage), Y(ears), L(and), E(xecutor), G(oods $500+), S(urety)
65
What are the exceptions to the Statute of Frauds?
1) Main purpose exception - if the main purpose of the guarantor is to benefit THEMSELVES, we will enforce the contract against them + it doesn't need to be in writing
2) Land - part performance (2/3 of possession, payment, or improvements)
3) Service K - full performance
4) Goods - acceptance of goods, payment, or substantial beginning on custom goods
5) Merchant's confirmatory memo
6) Judicial admissions
66
What is an adequate writing to satisfy the Statute of Frauds?
Adequate writing:
UCC - quantity term + D's signature
Common Law - material terms + D's signature
67
When should a motion for summary judgment be granted?
No genuine dispute as to an issue of material fact.
Motion for SJ is appropriate at ANY time until 30 days after the close of all discovery.
68
If a buyer agrees to assume a mortgage, against whom can the bank recover?
Buyer & original borrower.
The original borrower is secondarily liable as a surety. The bank can also foreclose.
69
If a buyer takes property subject to a mortgage, against whom can the bank recover?
Original borrower.
The bank cannot sue the buyer because he did not agree to personal liability. But the bank can foreclose.
70
When can a defendant implead a third-party defendant?
Only to obtain recovery for their own liability to the plaintiff - indemnification or contribution.
71
What is the rule for statements made by party-opponents?
Can silence be admitted?
Admissible non-hearsay.
Any statement made by a party and offered against that party is admissible nonhearsay.
Silence can be an admission (adoptive admission) IF a reasonable person would normally deny the statement under the circumstances.
72
What are examples of non-hearsay uses of an out-of-court statement?
Statement is not being offered for its truth:
1) Legally operative words (K, defamation)
2) Effect on listener (defendant placed on notice bc he heard the statement, motive)
3) Circumstantial evidence of state of mind of the declarant (insanity or knowledge - think Lady Gaga scenario)
73
When is a state law preempted by federal law?
1) federal government occupied the entire field (implied preemption)
2) direct conflict between state and federal law
3) state provisions prevent achievement of federal objectives
74
What are the MPC mental states?
1) purposeful - conscious object to engage in the act/cause a certain result
2) knowing - aware that conduct is of a particular nature or certain circumstances exist (knowledge w/r/t result = knows that conduct will necessarily or very likely cause this result)
3) reckless - consciously disregards a substantial and unjustifiable risk
4) negligent - fails to be aware of a substantial and unjustifiable risk
75
If a buyer contracts to purchase a home, and the home is destroyed by a fire before closing, what are her obligations to the seller?
The buyer must pay the full contract price (even though the house was destroyed and the value of the property is lower).
Risk of loss passes to the buyer upon signing the contract (equitable title), and the seller is entitled to specific performance of the K (full price).
76
Does the subsequent owner of property need notice of an easement to be bound by it?
Yes.
Easements are binding on all subsequent transferees regardless of whether their conveyances refer to it, as long as they have notice (actual, record, or inquiry) of it. If an easement is not properly recorded, it might not be binding on all successive owners.
77
What is the rule for disclosing the identities of witnesses during discovery?
A party MUST provide the names of individuals likely to have discoverable information along with the subjects of that information that might be used to support claims/defenses. They must do this WITHOUT waiting for a discovery request.
78
What are the elements of attempt?
1) specific intent to commit the target offense + 2) substantial step in furtherance (beyond mere preparation)
Common law - "dangerously close to success"
Note: Attempt merges with the completed crime.
79
What are the elements of conspiracy?
1) agreement + 2) intent to agree + 3) intent that the underlying crime be committed + 4) overt act in furtherance (mere preparation is OK)
Note: Conspiracy does not merge with the completed crime.
80
Explain the relationship between present recollection refreshed and past recollection recorded.
Past recollection recorded only works when present recollection cannot be refreshed.
Present recollection refreshed: Can use anything to refresh witness's memory, but witness may not read from the writing while testifying.
1) Opposing counsel can inspect, cross examine from it, or introduce all/parts of it into evidence.
2) NOT HEARSAY - now they can remember and are testifying from current memory
Past recollection recorded: Witness can read the words into evidence, but the writing itself is not admitted as an exhibit unless offered by the opposing party.
1) Witness has insufficient recollection
2) Had personal knowledge when made the record
3) Record was made when matter was fresh in their mind
4) Record accurately reflects their knowledge
5) HEARSAY EXCEPTION
81
When can you challenge marketability of title?
The claim has to be made before closing.
If buyer finds that title is unmarketable before closing, he must notify the seller + give reasonable time to cure the defect (1 month after closing date is reasonable unless time is of the essence).
There is an implied covenant in every land sale K that the seller will provide marketable title. At closing, the K merges with the deed, so seller is no longer liable on the implied K covenant of marketable title.
82
Discuss the equitable and statutory rights of redemption.
Equitable Redemption: BEFORE foreclosure, buyer (or junior interest holder) can pay off the outstanding balance + interest
Statutory Redemption: AFTER foreclosure, buyer can pay the foreclosure sale price
83
Is a statement of a declarant's then-existing state of mind, intent to do something in the future, or physical condition admissible?
E.g., "I'm going to my mother in law's house this afternoon for a birthday party."
Yes, as an exception to the hearsay rule.
Statements of intent to do something in the future are admissible to prove that the intent was carried out (AKA offered for their truth).
84
What is the shopkeeper's privilege for false imprisonment?
A shopkeeper may detain a suspected shoplifter if:
1) reasonable belief of theft
2) detention conducted in reasonable manner
3) reasonable period of time for making an investigation
85
What's the difference between a license and a profit?
License = not an interest in land, revocable, personal to the holder, cannot be transferred, lets you come onto the land and do something
Profit = interest in land, entitles the holder to enter and take something from the land, alienable (but depends on whether appurtenant or in gross - if appurtenant + serves a dominant estate, it can only be transferred with the dominant estate, but if in gross can be transferred separate from the dominant estate)
86
What can Congress regulate under the Commerce Clause?
CIA
C(hannels of interstate commerce)
I(nstrumentalities of interstate commerce)
A(ctivities that have a substantial economic effect on interstate commerce in the aggregate)
If the law has an effect on interstate commerce, the law will be upheld.
If the
87
What does the dormant Commerce Clause prohibit?
State/local laws that place an undue burden on interstate commerce or commerce with foreign nations.
1) Discriminatory state law (favoring in-state commerce) = presumptively invalid
Can justify if:
- Necessary to achieve important purpose unrelated to protectionism
- No nondiscriminatory alternatives
2) Nondiscriminatory state law = presumptively valid
But invalid if:
- Burden imposed on interstate commerce outweighs benefit (law is essentially irrational)
3) Exceptions to dormant CC
- Congressional approval
- State acts as market participant (state can choose who they want to sell to/do business with)
88
Do you need to establish damages for intentional torts?
No.
89
If a party mistakenly sued the wrong defendant, can they amend the complaint?
Yes. The amendment will be allowed and the complaint will relate back to the original complaint if:
1) Claims arise from the same T/O
2) Within the time allotted for serving the original complaint (90 days from filing) new D received notice
3) Defendant knew/should have known they would be sued
90
What are the elements of arson?
1) Malicious (reckless)
2) Burning (charring = sufficient, scorching ≠ sufficient)
3) House of another (Modern: any structure or dwelling)
Charred --> tarred --> blackened --> arson
Acting with reckless disregard of an obvious risk the structure would burn = enough for arson culpability
91
Explain the common law duties of landowners to other people on their land.
Unknown trespasser - no duty (but remember that you can't protect your property w/ deadly force)
Known/anticipated trespasser - duty to warn or make safe any conditions that are: 1) artificial, 2) highly dangerous, 3) concealed, and 4) known to the possessor
Licensee - duty to warn or make safe any conditions that are both: 1) concealed from the licensee and 2) known by the defendant/possessor
Invitee - duty to inspect + make safe if condition is 1) a concealed hazard and 2) property owner knew about it or could have discovered it through reasonable inspection (UNLESS invitee exceeds scope)
92
When is third party standing permitted?
(In other words, when is it OK to sue on behalf of someone else?)
1) Claimant has standing AND
- Difficult for the 3d party to assert their own rights OR
- Close relationship between P and 3d party to adequately represent the 3d party (e.g., parent suing on behalf of child)
2) Organizations suing on behalf of members
- Show injury to members
- Members’ injury is related to the purpose of the org so that it can effectively rep their interests
- Members' participation not needed
(if damages vary by members = individual participation required)
Free speech overbreadth
- Speaker can bring claims on behalf of 3d parties even if the gov't could censor their own speech if can show the challenged law is substantially overbroad
93
What are the rules for additur and remittitur?
Additur (jury awarded so little that it shocks the conscience) = ONLY IN STATE COURT, defendant may choose between 1) adding to the damage award or 2) going through a new trial
Remittitur (jury awarded an amount so big that it shocks the conscience) = judge may 1) order a new trial or 2) may offer plaintiff the choice between accepting a lower award or submitting to a new trial
94
What are the elements of negligent infliction of emotional distress (NIED)?
1) negligently engaging in an act that threatens physical impact or severe emotional distress likely to cause physical symptoms ("near miss," watching a close family member get injured, business mishaps)
2) actual damages
*This is a negligence action, so actual damages are needed (exceptions - false report of death + mishandling of corpse)
95
What are the elements of intentional infliction of emotional distress (IIED)?
1) intentionally or recklessly engaging in outrageous and extreme conduct
2) causing severe emotional distress
*This is an intentional tort, so actual damages not needed
96
In a products liability action, what effect does a retailer's negligence have on the supplier's liability?
None.
An intermediary's negligent failure to discover a defect is NOT a superseding cause. The defendant who supplied the defective product will be held liable along with the intermediary. (This applies regardless of whether applying strict liability or negligence)
97
When suing for products liability under a theory of negligence, what is the duty of care of a retailer who assembles components made by a manufacturer?
Retailer is subject to the same liability as the manufacturer of the defective component.
98
Explain the difference between the spousal privilege and the marital communications privilege.
Spousal privilege: criminal, held by the testifying spouse (can't be compelled to testify), applies to all information spouse gained before or during the marriage, and ends when the marriage ends
Marital communications privilege: any case, held by both spouses, applies to confidential communications during the marriage, endures after the marriage
99
When can you admit a dying declaration?
1) Murder trial or civil case
2) Declarant is unavailable
3) Statement must concern the cause of death
4) Declarant must believe death is imminent
100
What evidence is discoverable?
Any non-privileged matter that is relevant to any party's claim or defense. It need not be admissible at trial (so can discover hearsay, etc.).
101
Can statements obtained in violation of a defendant's 6th Amendment right to counsel be admitted at trial?
Yes, but only to impeach the defendant's inconsistent trial testimony.
102
What are the elements of trespass to chattels?
1) an act that interferes with P's right of possession in the chattel
2) intent to perform the act bringing about the interference
3) causation
4) damages
Definition - Intentional interference with plaintiff’s personal property that warrants D pay damages
103
When must the answer be filed?
What if defendant waived service of process?
Within 21 days of service of process.
If waived, 60 days from the date on which plaintiff mailed the summons and complaint.
104
When can a TRO be issued?
When can it be done ex parte?
1) necessary to prevent irreparable injury to a party + 2) injury will result before a preliminary injunction hearing can be held + 3) notice must generally be given
Ex parte TRO (without notice) = 1) specific facts to establish immediate and irreparable injury before adverse party can be heard + 2) certified in writing all efforts made to give notice to adverse party and why notice should not be required + 3) some security to pay fro any costs and damages incurred by the adverse party if it is wrongfully enjoined/restrained
105
What are the elements of issue preclusion?
1) same issue in both actions
2) final judgment re: the issue
3) full + fair opportunity to litigate
4) fair
106
What are the elements of claim preclusion?
1) same P v. same D
2) valid, final judgment on the merits
3) same cause of action (all claims arise out of the same T/O)
107
What is the difference between contributory negligence, assumption of risk, pure comparative negligence, and partial comparative negligence?
Contributory negligence: bars recovery
Assumption of risk: bars recovery
Pure comparative negligence: plaintiff can recover, but damage award reduced by % of fault attributable to him
*assume this unless stated otherwise
Partial comparative negligence: plaintiff can recover as long as he was less negligent than defendant
108
What must the plaintiff plead in the complaint?
What are the special pleading requirements for certain cases?
Twiqbal - "plausible" claim for relief
Fraud = "particularity"
109
What are the rules for speech in public forums?
1) narrowly tailored
2) important government interest
3) alternative channels of communication
110
What are the rules for speech in limited public forums or nonpublic forums?
1) viewpoint neutral
2) reasonably related to a legitimate government purpose (RB review)
111
When is indemnity available?
Entire loss is recovered from a co-tortfeasor
1) K promise to indemnify
2) vicarious liability
3) supplier in strict products liability case recovering from previous suppliers in the distribution chain
112
Under the Federal Rules of Evidence, can a defendant's guilty plea be admitted?
Yes, as a statement by an opposing party.
Note: This only applies to the PLEA. Withdrawn guilty pleas, offers to plead guilty, evidence of statements made during negotiation of guilty pleas, and please of nolo contendere are NOT admissible.
113
What crimes can duress be a defense to?
Anything but intentional homicide.
(In other words, duress doesn't apply to intent-to-kill murder)
114
What is the parol evidence rule and what are its exceptions?
Excludes evidence of prior or contemporaneous agreements contradicting the final writing
Exceptions:
- K formation defenses
- Trade usage
- Course of dealing between the parties
- Industry practice
- Evidence of a condition precedent*
*Rationale - the written agreement isn't being altered bc it never came into being (because the condition wasn't satisfied)
115
When is someone a third party beneficiary to a contract?
When they are an intended beneficiary at the time the contract is made.
If designated AFTER the contract is made, it is a gratuitous assignment and can be revoked.
116
What are the requirements of the business records exception?
1) regularly made in the course of the business
2) by someone w/ duty to report
3) made at or near the time of the event
4) entrant had personal knowledge or person w/ personal knowledge had business duty to transmit the info to the entrant
117
If plaintiff consults 5 experts and decides to hire 1 to testify, can the other side discover the opinions of the other 4?
No, unless the other side can demonstrate exceptional circumstances where it's impracticable to get facts/opinions on the same subject in any other way
118
What is the test for regulating commercial speech?
If truthful (not illegal)
1) substantial gov't interest
2) narrowly tailored
3) directly advances the interest
119
What is involuntary manslaughter?
1) unlawful act
2) criminally negligent homicide
120
Under which circumstances can a party discover work product prepared in anticipation of litigation?
substantial need + undue hardship
